I've been served

Log Out | Topics | Search Moderators | Register | Edit Profile

Author Message Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 1059 Registered: 05-2003 Posted on Wednesday, February 26, 2014 - 01:22 pm:    I am appearing at a depo today as the spec writer on a 10 year old condominium project. My client was the Architect. Stucco is failing on the building and the Condo association is claiming GC error in applying the stucco, the GC's lawyer is saying that the specs were followed within industry standards. No one is questioning the specs, however when I asked who was paying for my time, I got silence and no comment. Apparently the Architect misplaced all the specifications on the project, which I was happy to resend to all parties; they also asked for my contract and project file, which I sent, as I have nothing to hide, but having to appear for a statement and spend several hours answering questions, I would think I should be paid for my time. Surprisingly the Architect has not been called, at least that is what he says. I no longer prepare specs for this architect, but we remain cordial. Also this is my first depo on a condominium project even though I have prepared specs for over 100 condos in the past 20 years. So my thinking is to send the Architect or the Lawyer who sent the depo subpoena an Invoice for my time? Any comments from the peanut gallery or my peers? Any warnings? I know to keep my opinions to myself and since I have several deadlines today I am limiting my time there. Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 562 Registered: 08-2005 Posted on Wednesday, February 26, 2014 - 01:35 pm:    If you've been supoena'd, then you can't demand to be paid, but you can certainly ask, and you definitely should. You're compensation should include time, mileage, and expenses. Don't forget that after a Depo, you will be required to review the Record for accuracy. In my experience, this takes a long time to do. If I give 2 hours testimony, there is at least another hour of review and correction following that testimony (usually a few weeks later). This is due to the jargon of our industry, and court reporters seems to struggle with it! Avoiding jargon is definately going to save you time. Also, remember that a competent attorney already knows the answer to the question being asked. There are surprisingly few of them, but the Depo is NOT the time or place to educate an attorney who has a shockingly bad or incorrect knowledge or understanding of what you do for a living. ONLY answer the Question being asked, not the logical, related, important distinctions you naturally want to answer to. Back to billing, you should send your invoice to the Architect AND the attorney. The Architect will not pay it, but the claim must be made. Additionally, the Attorney won't pay it either, unless and until all the insurance companies settle out. So it could be a long while before you see anything. Make sure you include an interest charge, that starts accruing after 90 days or whatever you feel is reasonable. Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 563 Registered: 08-2005 Posted on Wednesday, February 26, 2014 - 01:45 pm:    Don't forget to bring an updated CV to the deposition. It is important to establish your credentials and the validity of your opinions and information provided in testimony. Also, there is considerable difference between video deposition, and live "in person" depo's with a stenographer present. In live depo's, can you can take consider time to consider your response prior to answering a question. In a video depo, this pause looks like you are thinking of ways to avoid the question :-) The stenographer does not record the length of time it takes to answer a question, so if a live depo, take as much time as necessary to really THINK out your responses. In video, you should still think everything through, but try not to verbally leave long pauses. Always qualify your statements between what you clearly recall, what is fact, what is opinion, etc... Have fun with the process. It's like a verbal chess match. It will be a very educational experience for you Liz O'Sullivan Senior Member Username: liz_osullivan Post Number: 129 Registered: 10-2011 Posted on Wednesday, February 26, 2014 - 01:54 pm:    I have no experience with this, but I wanted to follow up on Nathan's comment that you should ONLY answer the question being asked. My husband, an attorney, tells his clients that if the question is, "What time is it?" there are only 2 possible answers, "I don't know" or the correct time. The answer is never "Oh, I left my watch at home today" or "I used to wear a watch but I quit wearing it when I got my new phone" or "I need my glasses to read my watch... let's see, it looks like maybe it's almost noon..." Just the answer, or "I don't know." Jeffrey Wilson CSI CCS Senior Member Username: wilsonconsulting Post Number: 131 Registered: 03-2006 Posted on Wednesday, February 26, 2014 - 02:02 pm:    My initial reaction is that it would not be wise to seek compensation for a deposition. I would consider a few hours of my time as a cost of doing business in the public realm, and a duty to defend my client's documentation & our mutual reputations. Regardless of the current relationship w/ the client, I would go out of my way to take one for the team. guest (Unregistered Guest) Unregistered guest Posted on Wednesday, February 26, 2014 - 01:42 pm:    Send them both the bill. what have you got to lose? But my guess is that only disinterested expert witnesses can get paid. George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 717 Registered: 11-2004 Posted on Wednesday, February 26, 2014 - 02:26 pm:    I think the distinction between a fact witness and an expert witness determines whether you are paid. Sounds like you are a fact witness in this case. As an aside, expert witnesses are often asked the question "Are you being paid for your opinion?" The correct answer, of course, is "I am being compensated for my time; my professional opinion is not for sale." George A. Everding AIA CSI CCS CCCA Allegion PLC (formerly Ingersoll Rand) St. Louis, MO Ellis C. Whitby, PE, CSI, AIA, LEED® AP Senior Member Username: ecwhitby Post Number: 211 Registered: 03-2003 Posted on Wednesday, February 26, 2014 - 02:48 pm:    Since you apparently will not be supported by an attorney, the advice to comment only on what you know is even more important. The advice Jerome, Nathan and the others above are giving you is extremely prudent. While working for a previously employer I was deposed several times. I even had the “opportunity” to testify in a hearing on (behalf of a client) that was more enlightening than I anticipated: After days of preparation and an hour or two of testimony, I was rejected as an “expert” because the client’s attorney neglected to show that I was an “expert” prior to obtaining my testimony. As I recall, he should have asked most of the same questions he did ask, but then was supposed to ask the court to rule on my status as a witness. Because he neglected that step, the opposing counsel didn’t even have to bother to cross examine me. It really bothered me at the time because the contractor was wrong by even the most basic professional standards. Unfortunately, what is legal and what is “right”, are not always synonymous. At least I was paid for my time (or the company I worked for was: I was just drawing a salary). spiper (Unregistered Guest) Unregistered guest Posted on Wednesday, February 26, 2014 - 05:57 pm:    depending on your insurance coverage it is possible that your carrier will cover your time. A lot of PL policies will pay for your time and then if the insurance company feels this expense should be covered by someone else (GC, Architect, Owner, etc.) they will fight that fight and you will not have to. David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1347 Registered: 03-2002 Posted on Thursday, February 27, 2014 - 02:35 pm:    As a side discussion, what is the statute of limitations in your state? Here in Washington State the statute of limitations for construction defects is 6 years for a written contract (3 years for a verbal agreement). When a latent defect arises this tolls the statute. In other words the discovery of the defect starts the clock back to zero. David G. Axt, CCS, CSI, SCIP Specifications Consultant/Web Publisher www.localproductreps.com John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 1559 Registered: 03-2002 Posted on Thursday, February 27, 2014 - 04:35 pm:    I did got compensated for my time, even though I was in a room with seventeen attorneys (yeah, it was a big case involving a public client) all of whom were getting paid - a lot. However, my then-current new employer was kind enough to pay me for the day even though I was not in the office (so I guess I did get paid). The case concerned a waterproofing product that was alleged to have caused sickness in building occupants. I did the CA on the project, but not the specs. Here's the weird follow up: Thirteen years after the time of the alleged events, I got a call from an attorney about the summonses they sent me. Well, they sent it to the home of my former employer so I never got it. In any case, they wanted me to show up the next day to testify as a witness in a case between the manufacturer and their product liability insurer. I told them they were out of their minds to expect me to come in uncompensated to testify about something I couldn't possibly know anything about. My closest connection to the mfr was the independent rep. They backed off right away and I didn't go. ken hercenberg Senior Member Username: khercenberg Post Number: 718 Registered: 12-2006 Posted on Thursday, February 27, 2014 - 05:41 pm:    Jerry, how did it go? I'm curious, did they have expert testimony from a building envelope consultant and, if so, were you given access to their report before being questioned? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 1062 Registered: 05-2003 Posted on Thursday, February 27, 2014 - 06:07 pm:    Ken, it was a learning experience, probably not my last...there were 3 lawyers present and one on the phone, in a small conference room, I expect I will be called at trial...though maybe not as I reminded them that on that project I was retained to prepare specifications only, no involvement with construction. I did learn of some problems with my Stucco Spec which was the prime reason I was there. Primarily how impossible it is to keep stucco hydrated on a high rise building during construction...following ASTM C926 is absurd according to the Stucco Sub's lawyer. I will offer more later, right now I have two deadlines for tomorrow with the same client...yeah I know I shouldn't complain, I have work, but what I really need is 8hrs of sleep. J. Peter Jordan Senior Member Username: jpjordan Post Number: 690 Registered: 05-2004 Posted on Thursday, February 27, 2014 - 06:46 pm:    Mmmm... attorney for the stucco installer who may be a well trained attorney, but possibly doesn't know the meaning of the term "hydrate" as it applies to cement plaster says it is impossible to comply with ASTM C 926; not exactly a well qualified person to offer an opinion. I am sure that there are some people on an ASTM committee somewhere that would be interested in knowing that they have developed a standard laying out requirements that are impossible to meet. He is certainly entitled to his opinion as a layperson, but don't rush out to change your spec. I am always amazed that people who are not directly involved in the construction industry have strong opinions on the standards that are developed. I am even more amazed when those involved in executing the work are unaware of the particulars of the standards (sometimes even that the standards exist). He gets paid to bully his way through an argument with uninformed opinions in defense of his client regardless of facts or technical standards. He would be violating his professional responsibility to his client to do otherwise. He gets paid to represent his client not necessarily to be correct. If this is the first time you have heard of this, it is likely that its the first time the stucco sub and his attorney have used this argument. Mmmmm... Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 564 Registered: 08-2005 Posted on Thursday, February 27, 2014 - 07:04 pm:    Stucco and High Rise. Hmmm... ken hercenberg Senior Member Username: khercenberg Post Number: 720 Registered: 12-2006 Posted on Friday, February 28, 2014 - 07:32 am:    Actually stucco has been used on high-rise condos on the east coast for years. ASTM C926 is a consensus document produced by Installers, manufacturers, design professionals and others who are very familiar with stucco. It was not produced in a vacuum. I'm curious about a number of items: 1. What part of ASTM C926 is the Installer saying he used that didn't work? 2. Presuming that you specified that the Installer had to be experienced in projects of this type, I wonder how many high-rise stucco projects they had done previous to this one. 3. What constituted failure on the part of the stucco? 4. If the condo association had a building envelope specialist determine the nature and cause of the problem, can you access this report before having to appear in court? 5. If specialists have been called in, I presume that the Installer will bring in their own specialist. Will you have access to that report as well? Discovery has to go both ways. 6. Will the condo association provide you with a hold harmless agreement for testifying on their behalf? Since this presumably goes beyond the terms of your agreement with the architect, will they also compensate you for your time?