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  1. #1
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    Default Subpoenaed (sp?)!

    So, today I was left a voicemail from a lawyer letting me know they would need me to testify in a building defect case that starts on Dec. 7th ( a week). It's a house I inspected a few years ago that had serious foundation problems. I deferred most of it to engineers but also gave my opinion that it "may" be expansive soil.

    Anyway, apparently they have been suing the builder and want me to testify. They want to know if I am "willing" to testify or need to be subpoenaed. Which route would serve me best? Can I get paid for this? I am going to have to cancel some appointments that are already booked.

    F.I.R.E. Services

  2. #2
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    Default Re: Subpoenaed (sp?)!

    Tell them you expect to get paid, and tell them what your hourly/daily rate is. Get them to understand that if you are not paid, you may not be the best witness for them (bad memory, etc).


  3. #3
    Ted Menelly's Avatar
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Benjamin Thompson View Post
    So, today I was left a voicemail from a lawyer letting me know they would need me to testify in a building defect case that starts on Dec. 7th ( a week). It's a house I inspected a few years ago that had serious foundation problems. I deferred most of it to engineers but also gave my opinion that it "may" be expansive soil.

    Anyway, apparently they have been suing the builder and want me to testify. They want to know if I am "willing" to testify or need to be subpoenaed. Which route would serve me best? Can I get paid for this? I am going to have to cancel some appointments that are already booked.

    Willing = payed is the key phrase. As Jack said. This is what you do for a living and will testify at a set hourly rate, If it is expected to take a few days or a week you can arrange with them for a better rate or set price.


  4. #4
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    Default Re: Subpoenaed (sp?)!

    But, worst case scenario, can they MAKE me come to court and sit through the whole trial until it is my turn to testify?? That seems ridiculous.


  5. #5
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Benjamin Thompson View Post
    But, worst case scenario, can they MAKE me come to court and sit through the whole trial until it is my turn to testify?? That seems ridiculous.
    I think this is like jury duty, part of your civic duty. They can compel you to come... but they cannot compel you to be helpful.
    Talk to the lawyer and get a retainer in advance to ensure your memory works correctly.

    Jim Luttrall
    www.MrInspector.net
    Plano, Texas

  6. #6
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Benjamin Thompson View Post
    They want to know if I am "willing" to testify or need to be subpoenaed.

    Tell them that you are "willing" to testify at your expert witness rate (make it a good rate, say a minimum of $150 per hour with a 4 hour minimum, higher is you are qualified to do so).

    Tell them that if they subpoena you that you will ONLY answer the questions you are required to answer, i.e., that, yes, *this is the inspection report for that property*, and, yes, *the report states (read it verbatim, do not make any changes or adjustments to what is written in the report), and that, yes *you do have an OPINION - but that comes with the expert witness price tag*.

    It is a game and a contest, they have to pay to have you play, otherwise you can only state the obvious facts (this is the report, this is what the report states) and you will not make any OPINIONS unless paid for OPINIONS.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  7. #7
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Benjamin Thompson View Post
    But, worst case scenario, can they MAKE me come to court and sit through the whole trial until it is my turn to testify?? That seems ridiculous.
    They will not make you sit through the trial, first they will depose you (a legal interview, if you will). If you are not helpful to their case they will not call you to the trial, and you can make yourself as UNhlepful as possible because, without being paid for *your opinion* you can only state the facts: 'yes, this is the report', and 'yes, the report states ... ' DO NOT add any explanation or other wording when you read the report, simply *read* *exactly* what is written in the report, and ... this is part of the UNhelpful part - you can give voice inflections which downplay what they want to point out and which point out things they want to downplay.

    For example: The roof was 20 years old and needs repair in some areas.

    They may want this: The roof is 20 years old and NEEDS REPAIR in some areas. (I.e., they want the roof replaced.)

    You can say it like this: The roof is 20 years old and needs repair in SOME areas. (I.e., the roof can easily be repaired in those few areas.)

    You don't want to pay me, you don't get my "opinion", so when they ask "So, do you think the roof needs to be replaced, right?", you answer "I am not here as an expert, therefore I cannot offer any opinions." (that is the time you hand them your already filled out expert witness contract and say 'Sign this, and pay the stated retainer, and I can offer an opinion as to what the report means.' Then stay quiet with your opinions until they sign it and give you a check for the retainer.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  8. #8
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    Default Re: Subpoenaed (sp?)!

    GOOD, good, good, info. This is a bit complicated as I know the builder and have had business dealings with him in the past (in a different business) and would probably be a good character witness FOR the builder. But, I have to say he did screw up on this one!

    Last edited by Benjamin Thompson; 11-30-2010 at 05:59 AM. Reason: Deleted

  9. #9
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    Default Re: Subpoenaed (sp?)!

    Benjamin.. I went thru this a few years ago. At the time I was only in business a couple years, instead of trying to make it look like I knew more than I did, I went in only knowing what was on my report .
    It took apx 1 hr. It was a meeting between the builders and my customer lawyers. My customers lawyer told me to send him a bill, they pd me and I never heard from them again.

    Do everthing the experienced guys are telling you and it will work out ok.

    Phoenix AZ Resale Home, Mobile Home, New Home Warranty Inspections. ASHI Certified Inspector #206929 Arizona Certified Inspector # 38440
    www.inspectaz.com

  10. #10
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    Default Re: Subpoenaed (sp?)!

    BT, I would send private messages to a couple of people here and delete your post. The majority of us lackeys here have minimal legal expertise and I speak only for me.

    The tone of your comments is that you know of what you speak - an expert witness. You call several times for an engineer to check things, that is not indicative of an engineering poser.

    Good luck with the billing. Tell the lawyers you have inspections scheduled, confirm times so you can make arrangements, you're in demand elsewhere.

    John Kogel, RHI, BC HI Lic #47455
    www.allsafehome.ca

  11. #11
    Mike Inspector's Avatar
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    Default Re: Subpoenaed (sp?)!

    Do not talk to your clients lawyer with a chip on your shoulder or they will just subpoenae you and you will get NOTHING for your time.


  12. #12
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    Default Re: Subpoenaed (sp?)!

    Benjamin...Your reporting of the issue(s) reads just fine. It doesn't read as if coming across as a Structural Engineer. You obviously saw defects, reported them and drew possible conclusions as to the root cause. The bottom line - your recommendation to seek the opinion of a Structural Engineer - specifically identifies you as not being one and therefore would be held to a different (perhaps lower - with all due respect) standard.

    If you do get deposed - and you should - prior to any court appearance, just remember to caveat everything as being a Home Inspector with xxxx experience. The Plaintiff's (Petitioner) attorney will 'be on your side' and basically ask about your overall experience, the information contained in your report and your experience in identifying similar issues. The Defendant's (Respondent)attorney will try to 'suck you in' to provide information you may not be qualified to give, thereby undermining your whole testimony. A Deposition is just a semi-formal meeting, usually in one of the attorney's offices, with both attorney's present. They will ask questions, a stenographer will record your answers under oath. Prior to answering any question(s) ask if you can review and refer to your report for the answer. Don't try to guess the answer and later find out you wrote down something different - that's embarrasing to say the least. Depending upon your testimony, there may be no need for you further in the proceedings. You are entitled to fees at the deposition and any subsequent court proceedings.

    They will want you to identify and acknowledge your report and, if you took and saved any photos they will want those also. If you don't have the originals they will want you to identify any they do have (from you) as the ones taken contemporaneously with the report. Speak the truth as you know it to be. It's okay not to know the answer to any specific question (if you don't) and also okay not to have an independent memory or recollection - just say so.

    Best of luck...

    ip

    Last edited by Ian Page; 11-30-2010 at 01:39 AM.

  13. #13
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    Default Re: Subpoenaed (sp?)!

    Tell them you expect to get paid, and tell them what your hourly/daily rate is. Get them to understand that if you are not paid, you may not be the best witness for them (bad memory, etc)
    You would be wise not to even state any thing like that in reply to the attorney.

    They may be willing to pay you, either your rate or a minimum. I suspect they will not want to pay the full rate.

    Even if you ask for your full rate they can still subpoena you and pay you the rate as prescribed by the court if there is one.

    Remember once on the stand your are under oath, and answer all questions honestly and to the best of your ability.

    Federal Rules of Civil Procedure - Rule 45

    Last edited by Raymond Wand; 11-30-2010 at 05:48 AM.

  14. #14
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    Default Re: Subpoenaed (sp?)!

    I have had this crop up a few times and each time I have handled it by sending the attorney my litigation support fee schedule and agreement for services. It tells them upfront that I'm a professional and I expect to get paid for my time.

    Jerry has provided you with some good advice and a good price for a person who has not done this before. Most of us who offer litigation support charge by the half-day for any court or deposition work. A few weeks ago I drove to another state, spent the night for a 9am court time. I sat in a chair outside the courtroom from 8:30am to 11:00am. I never testified but I was available and ready to do if called upon as an EW and the other side did not have an EW. I was paid my fee and expenses and all I did was sit in the hall and read a book and returned emails on my iPhone! It was more of a show of force and the side I was working for won. It is amazing what a few suites and ties will do for a case! It is all about perception at times.

    Email the attorney your fees for your services, let them be the ones to then decide what they want to do. You also need to disclose to them that you know the builder and what or how close the relationship is.

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  15. #15
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    Default Re: Subpoenaed (sp?)!

    Scott makes a good point regarding your 'relationship' with the builder. Just be up front about it. Also, it is unlikely you will have to sit through the whole procedings. Typically, in both Depositions and Trials, witnesses are scheduled to appear at certain times. However, it's also typical that the time and even the date can be changed at the last minute - especially for Court appearances. You may be called to testify, say 10.00 am and not get on the witness stand until 3.00 pm - or even the next day. There ain't no such thing as swift justice - unless you are packin'...

    ip


  16. #16
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Ian Page View Post
    You may be called to testify, say 10.00 am and not get on the witness stand until 3.00 pm - or even the next day. There ain't no such thing as swift justice - unless you are packin'...

    ip
    One very good reason that you should bill by the half day in four hour increments! 8-12 and 1-5!

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  17. #17
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    Default Re: Subpoenaed (sp?)!

    I agree with Scott about those half day billings.
    I was in a deposition once and it was getting close to noon. The atty that hired me reminded the other atty (the one deposing me) that my time was up at noon, and if we went over, it was going to cost him another 4 hour block.
    He was really finished going over my report, yet insisted that he "just had a couple more things". He asked one or two more questions, and it was about 12:10pm when he said he as finished.

    He then said that 10 minutes shouldn't be a problem. I told him that 10 minutes was not a problem, however he was being billed for an additional 4 hours anyway. He started making a fuss, and the other attys there reminded him that he had been notified several times about the billing, and he was on the hook for it.

    He did pay the bill.


  18. #18
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    Default Re: Subpoenaed (sp?)!

    It's a matter for you but I would bill as you would for performing Inspections, (including any up-charges you may include) x 2 if it goes into the second half of the day. You may also recover additional expenses for travel and lunch if you are kept over from a.m. to p.m.

    ip


  19. #19
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    Default Re: Subpoenaed (sp?)!

    This was supposed to happen next Wednesday. I just got a voicemail that it has been rescheduled for Feb or March! Do these things ever actually happen?
    I got everything squared away and let them know what I would charge and was actually looking forward to it!
    Thanks all for the advice. I'll follow up if it ever happens. This makes me think there may be a settlement.


  20. #20
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    Default Re: Subpoenaed (sp?)!

    If they are smart, someone will blink and settle out of court... but they are not very smart (or just bull headed) to have proceeded this far.

    Jim Luttrall
    www.MrInspector.net
    Plano, Texas

  21. #21
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    Default Re: Subpoenaed (sp?)!

    Something like 98% of all civil tort claims are settled 'out of court'. Even so, courts still have a back-log of cases. Putting any case off for several months is not unusual. It's a bit disruptive but at least you were given a few days notice. There's plenty of time for a settlement between now and then.

    ip


  22. #22
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Benjamin Thompson View Post
    This was supposed to happen next Wednesday. I just got a voicemail that it has been rescheduled for Feb or March! Do these things ever actually happen?
    I got everything squared away and let them know what I would charge and was actually looking forward to it!
    Thanks all for the advice. I'll follow up if it ever happens. This makes me think there may be a settlement.
    Rescheduling is just part of it. A few weeks ago I finished a case that started back in early 2006! The trial was reset about every 3-6 months for a couple of years.

    Now that you have time you need to draft an agreement (if you have not already done it) and include a retainer fee. You also need to request all pertinent documents in the case and review them.

    Scott Patterson, ACI
    Spring Hill, TN
    www.traceinspections.com

  23. #23
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Scott Patterson View Post
    Rescheduling is just part of it. A few weeks ago I finished a case that started back in early 2006! The trial was reset about every 3-6 months for a couple of years.
    I've got one scheduled for April ... but I'm not betting it will really happen then - a lot can change in the next 4 months, especially when my report sinks in and they fully understand the consequences of not settling out of court.

    Now that you have time you need to draft an agreement (if you have not already done it) and include a retainer fee. You also need to request all pertinent documents in the case and review them.
    "You also need to request all pertinent documents in the case and review them."

    Which, OF COURSE, is to be paid for and deducted from the retainer, never let the retainer go to zero, you always want to be holding more money than you are being asked to charge (your time you are being asked to give at your agreed upon rate).

    Let's say you think something will take you 20 hours (which goes incredibly fast when you are reviewing information or doing research), and let's say that you are charging $150 per hour, that means you will want a retainer of $3,000.00.

    If you think it will drag on for months and you think you will only spend 10 hours per month on it, then make your retainer $3,000.00 and every month you will provide them with the time spent, the amount deducted from the retainer ($1,500.00), along with a bill for additional retainer monies ($1,500.00) to bring the retainer back to $3,000.00.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  24. #24
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    Default Re: Subpoenaed (sp?)!

    The court works in ways , mere mortals do not understand,they set a time for the case,then they do not hear it that day,then it is held over to an other date,then the judge may not want to hear it,and whats the parties to settle it on there own
    Be care full when quoting your rates,you never know how long the issue may take place,make sure you are covered for your time
    Harry


  25. #25
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    Default Re: Subpoenaed (sp?)!

    Lots of excellent advice above and all should take note because most inspectors will eventually be dragged into litigation as either a witness or respondent. What I have found in my 20 + years of EW work with folks that have Esquire after their name is during the deposition they keeping backing up and asking the same questions in another manner expecting you to trip over your first response. When that happens I reply with a smile on my face, “asked and answered.” Then they become frustrated and begin picking on minor issues that really have no relationship to the case. About this time I attempt to remind them by saying something like, “Hey guys, doesn’t 2 + 2 still equal 4?” But then they, the attorneys, want to argue the definition of "equal." Go figure? As long as I’m on the “clock” I don’t get to impatient.

    Jerry McCarthy
    Building Code/ Construction Consultant

  26. #26
    Ted Menelly's Avatar
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    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Jerry McCarthy View Post
    Lots of excellent advice above and all should take note because most inspectors will eventually be dragged into litigation as either a witness or respondent. What I have found in my 20 + years of EW work with folks that have Esquire after their name is during the deposition they keeping backing up and asking the same questions in another manner expecting you to trip over your first response. When that happens I reply with a smile on my face, “asked and answered.” Then they become frustrated and begin picking on minor issues that really have no relationship to the case. About this time I attempt to remind them by saying something like, “Hey guys, doesn’t 2 + 2 still equal 4?” But then they, the attorneys, want to argue the definition of "equal." Go figure? As long as I’m on the “clock” I don’t get to impatient.
    I was in court once upon a time (nothing to do with business) and the lawyer must have asked the same question over and over in different ways and my response was that there was no yes or no answer and I needed to explain.

    The fool actually, after some time, asked me to explain. As I started to explain and he did not like the answer he kept trying to stop my explanation. The judge told him he opened it up so let us just sit back and listen. The judge took his glasses off and sat back in his chair rocking back and forth listening. I won.


  27. #27

    Default Re: Subpoenaed (sp?)!

    Quote Originally Posted by Jerry Peck View Post
    If you think it will drag on for months and you think you will only spend 10 hours per month on it, then make your retainer $3,000.00 and every month you will provide them with the time spent, the amount deducted from the retainer ($1,500.00), along with a bill for additional retainer monies ($1,500.00) to bring the retainer back to $3,000.00.
    I almost entirely agree with Jerry. But I would take the 3k retainer and bank it, then I bill for time spent up until the trial on a monthly basis. When the trial is over I return any unused portion of the retainer after applying it to my final bill.


  28. #28
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    Default Re: Subpoenaed (sp?)!

    When I was sued many years ago the plaintiffs lawyer during examination for discovery was asking questions such as;

    You drive a jeep, considering the inspection took place during a snow storm did you have your jeep in four wheel drive? Were you wearing a winter parka? Did you carry a shovel, windshield snow scrapper? Why didn't you have a shovel in the car?

    My insurance appointed lawyer sat there and raised no objections! What a dink. Especially when the insurance lawyer told me that he would defend me vigorously!

    Come to think of it the whole insurance representation was a farce!

    The moral of the story is don't rely on any insurer to look out after your interests, they are there to look out after their interest first and foremost. Then they turn around and say inspectors are bad risks!


  29. #29
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    Default Re: Subpoenaed (sp?)!

    As a follow up, I never had to go. They let me know it was postponed until Feb or March and I never heard back. I guess it settled. I imagine this is what usually happens. All that concern for nothing


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