I've Been Asked to Testify in Court

[Nick Ostrowski]

During an inspection I had done for a past client back in 2010, I had observed noted multiple defects with the electrical system both inside and outside the house including wiring issues inside the service panel and a service cable that was in need of replacement. I made two return trips to the property at the request of my client to inspect the electrical repairs. On both occasions, every repair item I was to inspect was not completed and I could only report that the the repairs were not complete. After paying me for two trips where I told her pretty much nothing, she opted to accept a letter from the electrician and sellers that the repairs were completed. Not longer after she moved into the house, her service panel started overheating and nearly caught fire. She had a different electrician come in and make emergency repairs for her and the electrician told her the service cable installation was faulty.

Now, she's taking the electrician to court and wants me to testify as to what I observed during my attempted inspections of the repair items. I've never been asked to be a witness before and am unsure of a few things:

- is this considered expert witness testimony?
- is there a specific contract I should be having my client sign if I am going to testify on her behalf?
- how much should I expect to be paid for my time? Is it based per hour of court time or should all my research time in preparing for the court appearance be billable as well? How do some of you bill for this type of work? Do you bill what your standard per hour rate would be for home inspections or does legal work allow for a higher fee?

Any feedback would be appreciated.

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[Jerry Peck]

- is this considered expert witness testimony?

Yes.

- is there a specific contract I should be having my client sign if I am going to testify on her behalf?

Not necessarily "a" specific contract for expert witness work, but definitely different than your standard home inspection contract.

Mine is attached, I am sure that Scott P. has one he will share too, as well as some others. Maybe W C Jerry if he is still monitoring this board?

- how much should I expect to be paid for my time?

Depends on what is charged in your area, I've included my fee schedule as the last past of the contract.

- Is it based per hour of court time or should all my research time in preparing for the court appearance be billable as well? How do some of you bill for this type of work? Do you bill what your standard per hour rate would be for home inspections or does legal work allow for a higher fee?

All of the above.

[Mark Fisher]

Yes, this would be considered expert testimony, and yes you need to charge for it. Otherwise, she can just submit your reports as evidence. Hopefully she and her lawyer don't argue the point; I had one case where they figured they would simply subpoena me and I'd have to testify for free. Based on my lawyer's advice, after I was sworn in and identified myself, I addressed the judge explaining that I was advised by counsel to simply acknowledge that I wrote such-and-such report, but to not offer any opinion or observation beyond that since no one has hired me as an expert witness. The judge asked the plaintiff why they had subpoenaed me if they didn't want my testimony, and if they wanted my testimony, why were they refusing my fee. He then asked me what my fee was. Result: the court ordered the plaintiff to pay my fee, and I testified in full.

I don't command Jerry's rates, but I always charge at a higher rate for court related work. And I agree that you want to charge in half-day increments for court. I personally don't charge extra for prep, but I typically already did the lion's share of any research in the initial reporting.

[Scott Patterson]

Yes, this would be considered expert testimony, and yes you need to charge for it. Otherwise, she can just submit your reports as evidence. Hopefully she and her lawyer don't argue the point; I had one case where they figured they would simply subpoena me and I'd have to testify for free. Based on my lawyer's advice, after I was sworn in and identified myself, I addressed the judge explaining that I was advised by counsel to simply acknowledge that I wrote such-and-such report, but to not offer any opinion or observation beyond that since no one has hired me as an expert witness. The judge asked the plaintiff why they had subpoenaed me if they didn't want my testimony, and if they wanted my testimony, why were they refusing my fee. He then asked me what my fee was. Result: the court ordered the plaintiff to pay my fee, and I testified in full.

I don't command Jerry's rates, but I always charge at a higher rate for court related work. And I agree that you want to charge in half-day increments for court. I personally don't charge extra for prep, but I typically already did the lion's share of any research in the initial reporting.

This is what I use, an inspector and dear friend who is no longer with us (Norm Sage) helped me with the basics and then it was caressed and blessed by a US District Court Judge and an attorney. I think you will see that it has some similar verbiage to Jerry's ... My fees are typical for my area and the states I work in.

[Jerry Peck]

This is what I use, an inspector and dear friend who is no longer with us (Norm Sage) helped me with the basics and then it was caressed and blessed by a US District Court Judge and an attorney. I think you will see that it has some similar verbiage to Jerry's ... My fees are typical for my area and the states I work in.

Scott,

Mine also started out working with Norm's as I was down where he was. Several of us in that area massaged the wording and we all used the same basic contract.

Then WC Jerry and I exchanged back and forth and modified as we felt necessary for the different state's laws.

I suspect that there are many more out similar contracts out there with similar wording as so many of us have shared contracts and wording around this country.

[Nick Ostrowski]

Great info guys. Thanks for all the input.

[Ken Rowe]

I disagree. This is not expert witness testimony. Expert witness testimony would be if you were called to testify in a case you are not a party to. In this case you would be considered a witness for the plaintiff. You were actually there and observed the problems and the problematic repairs. An expert witness does so for a fee and cannot be subpoenaed as they are not a party to the case. In this case you can be subject to subpoena so if the plaintiff doesn't want to pay you, they don't have to, but you'll still need to testify.

[Jerry Peck]

I disagree. This is not expert witness testimony. Expert witness testimony would be if you were called to testify in a case you are not a party to.

Whether or not you are a party to the case, as soon as they ask "what do you think" or "is that what you think" or "you wrote blah, blah, blah, why do you think that" or any other combination leading to 'what is your opinion' or 'what do you think' ... you *are* being asked that as an *expert*.

Now, if they ask "Did you do this inspection on this day at this address?", that is not an expert witness question, that is you as Records Custodian, and you have two choices for your answer, each one is a one word answer: a) "Yes."; b) "No.", than that's it for you as Record Custodian.

An in between would be a Witness of Fact: Is this the report for that inspection? (Record Custodian) "Yes."; Does the report state what you observed? (Witness of Fact "Yes."; Why did you think that needed to be corrected? (Expert Witness - stop right there and present your contract as they are now treating you as an "expert") (no answer until the contract is signed) (this is where you can turn to the Judge and discuss the fact that they are now treating you as an expert and here is your contract they have refused to sign).

I have not heard of a Judge yet who will not tell the attorney to sign the contract and get their checkbook out, then ask you how much the attorney should write the check for - it is a good idea to already have that number in the contract.

[Mark Fisher]

I disagree. This is not expert witness testimony. Expert witness testimony would be if you were called to testify in a case you are not a party to. In this case you would be considered a witness for the plaintiff. You were actually there and observed the problems and the problematic repairs. An expert witness does so for a fee and cannot be subpoenaed as they are not a party to the case. In this case you can be subject to subpoena so if the plaintiff doesn't want to pay you, they don't have to, but you'll still need to testify.

Interesting. I'm not sure, though, that I agree that he is now a party to the case. My understanding is that a general 'witness' needs no special knowledge, as in asking a neighbor if they saw the electrician's truck in the driveway on such and such date. In this case he is being asked to make an assessment and offer his opinion on workmanship and completeness. The neighbor can say whether or not the electrician was there, but is not qualified to say whether or not they did anything.

Again, this is just my experience.

(Edit: Jerry said it better.)

[Nick Ostrowski]

I don't really view myself as an expert witness here. It's not like I can refute anything the electrician says about his work because every time I went back to look at repairs, nothing had been done. All I can say is that I performed a home inspection on XX date and here is what I observed. As for repairs, I went on XX date and XX date and nothing was done. End of story.

[Jack Feldmann]

Regardless of what you may call yourself, you need to charge for your time.

[Jerry Peck]

I don't really view myself as an expert witness here. It's not like I can refute anything the electrician says about his work because every time I went back to look at repairs, nothing had been done. All I can say is that I performed a home inspection on XX date and here is what I observed. As for repairs, I went on XX date and XX date and nothing was done. End of story.

You will reasonably, and likely, be asked "why" you wrote those items up for correction on your first inspection - that was your professional opinion you gave ... that those items needed to be corrected.

Your subsequent re-inspections on which you reported 'every repair item I was to inspect was not completed' you will reasonably, and likely, be asked "why" those items needed correction after the electrical contractor had already stated gone out there and made whatever corrections that electrical contractor made ... again, it was your professional opinion that those items still required correction.

Supporting your professional opinion will the be second electrical contractor who came in after the 'service panel started overheating and nearly caught fire', they came in to 'make emergency repairs for her and the electrician told her the service cable installation was faulty'.

You will be testifying that what your wrote up at the first inspection was true and why - your professional opinion, i.e., you will be testifying as an expert and giving your opinion.

The second electrical contractor will give a back up professional opinion and state why they had to 'make emergency repairs for her' and why they 'told her the service cable installation was faulty'.

It is the first electrical contractor who did not make the repairs you wrote up who will be in the hot seat.

Basically, you will be testifying as the first person in who said those things needed repairs, and that the first electrical contractor did not make those repairs. You need to be able to back up having called for those repairs.

The first electrical contractor will be asked why they did not make those corrections, and why that electrical contractors says 'because the repairs were not needed', your report and testimony will be presented to contradict that electrician, as will the repairs the second electrical contractor made and what that second electrical contractor said about the service cable.

The intent will be to nail the first electrician to the wall and make them responsible for what happened because they did not make the repairs that you specified.

You will be testifying as an expert on this and why you wrote those items up. Get your ducks in a row and make sure that what you get ready and what you say supports what you wrote, you do not want to contradict what you wrote.

It will also help if you use the same terms and the same wording when you testify as what you used in your report - that makes following what you say and what you wrote much easier.

It also eliminates minor technical points of contradiction which will be jumped on by the opposing attorney - 'In your report you wrote *service cable that was in need of replacement.*, yet in your testimony you stated *service entrance cable needed replacement* ... which is it ... *service cable* or *service entrance cable*?'

Anything you say to defend or explain that those items are one and the same will be lost because if they were one and the same you would have called them by the one and same name.

Sometimes you can make things the attorney says work for you, such as the attorney may look at you and state 'I think someone in this courtroom does not understand what is going on here' ... you can look at that attorney and reply with 'I agree with you, and I think that I may be looking at that person' or 'I agree with you, and I've explained it to you several times already', or 'Okay, I will try to explain it differently for you, what part do you not understand' ... all depends on how things are going and what the judge is like.

[Ken Rowe]

In this case he is being asked to make an assessment and offer his opinion on workmanship and completeness.

(Edit: Jerry said it better.)

Nope. In this case he has already made an assessment and offered his opinion on the workmanship and completeness. It's in his report. He'll be testifying to the information contained in his report. Pictures, citations and opinions. Sure, he can try to get an extra fee, but if he's subpoenaed he'll need to answer the questions anyhow.

The expert witness will be the Board Member of the NFPA that the electrician union hires for the defense to tear apart what the inspection report says.

[Raymond Wand]

At this point I have to agree with Ken.

expert witness n. a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects. Experts are usually paid handsomely for their services and may be asked by the opposition the amount they are receiving for their work on the case. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions. (See: expert testimony)

[Jerry Peck]

Legal Definition of 'Expert Witness' :
EXPERT WITNESS
When knowledge of a technical subject matter might be helpful to a trier of fact, a person having special training or experience in that technical field, one who is called an expert witness, is permitted to state his or her opinion concerning those technical matters even though he or she was not present at the event. For example, an arson expert could testify about the probable cause of a suspicious fire.

A person who testifies at a trial because she has special knowledge in a particular field. This entitles her to testify about her opinion on the meaning of facts. Non-expert witnesses are only permitted to testify about facts they observed and not their opinions about these facts. In family law trials, common expert witnesses include: Actuaries, who testify about values of spouses' pension plans for the purpose of dividing them at divorce; Child psychologists or development specialists, who testify about the best interests of the child when custody or visitation is in dispute; Appraisers, who testify about property values when the parties cannot agree, and; Career counselors, who testify about a homemaker's ability to return to the work force for the purpose of determining the amount and duration of alimony.

"even though" does not prohibit 'having been there'

[Raymond Wand]

The British Columbia Court of Appeal approved this definition
in R. v. Kinnie, reflex, (1990) 40 B.C.L.R. (2d) 369.

Whether a person qualifies as an expert varies with
the circumstances and thus no all-encompassing definition is
possible. Nonetheless, principles have evolved to control the
testimony of proposed experts. An expert is limited to
testifying to matters within his or her area of expertise: R.
v. Kuzmack (1954), 20 C.R. 365 (Alta. C.A.). Experts are not
to consider or comment on facts that are not subject to his
professional expert assessment: R. v. Howard, supra, at p.
1348. If the expert lacks personal knowledge of the matters
in issue, and the facts are in dispute, the expert's opinion
may only be elicited through the vehicle of a hypothetical
question: see The Law of Evidence in Canada, supra, at pp.
537-39. Also, experts are not to rely on "novel" or
"experimental" scientific methods: Bisset v. Romaine, (1990)
38 C.P.C. (2d) 10 (B.C.S.C.).

In Perricone v. Baldassarra, (1995) 7 M.V.R. 91
(Ont. Gen. Div.), at p. 99, the trial judge held that where
the expert assumes the role of an advocate, he or she can no
longer be viewed as an expert in the legally correct sense;
instead her or his evidence "must be viewed as advocating the
case of a party with the attendant diminishment in the
credibility". In Perricone, the trial judge suggests the
guidelines laid out in National Justice Compania Naviera SA v.
Prudential Assurance Co. ("The Ikarian Reefer"), [1993] 2
Lloyd's Rep 68 are applicable to weighing the credibility and
admissablility of expert evidence. Those guidelines are
paraphrased at p. 99:

1. Expert evidence presented to the
court should be, and should be seen to be,
the independent product of the expert
uninfluenced as to form or content by the
exigencies of litigation.

2. An expert should provide independent
assistance to the court by objective
unbiased opinion in relation to matters
within his or her expertise. An expert
witness should never assume a role of
advocate.

3. An expert should state the facts or
assumptions on which the opinion is based
and should not omit to consider material
facts which detract from that opinion.

4. An expert should make it clear when a
particular question or issue falls outside
of the expert's expertise.

5. If an expert's opinion is not
properly researched because insufficient
data is available, this must be stated
with an indication that the opinion is no
more than a provisional one.


Summary

In order to be admissible as an exception to the
rules of evidence that a witness may only testify to matters
that he or she has knowledge of, the following criteria must
be met:

1.The evidence of the expert must be "necessary" for the
trier of fact in deciding the issues. It must not be
regarding matters that the trier of fact can deal with
independently.

2.The evidence must involve "special knowledge or skill" and
not be within the general knowledge of the ordinary witness
or that of the trier of fact.

3.The evidence must be based on appropriate theories or
practices within the area of expertise.

4.The weight to be given in part will depend on the expert's
compliance with the guidelines set out in The Ikarian
Reefer, supra. Non- compliance may render the expert's
testimony inadmissible if its admission runs afoul of the
relevancy rule in Mohan, supra.

[Marcel Cyr]

The British Columbia Court of Appeal approved this definition
in R. v. Kinnie, reflex, (1990) 40 B.C.L.R. (2d) 369.

Whether a person qualifies as an expert varies with
the circumstances and thus no all-encompassing definition is
possible. Nonetheless, principles have evolved to control the
testimony of proposed experts. An expert is limited to
testifying to matters within his or her area of expertise: R.
v. Kuzmack (1954), 20 C.R. 365 (Alta. C.A.). Experts are not
to consider or comment on facts that are not subject to his
professional expert assessment: R. v. Howard, supra, at p.
1348. If the expert lacks personal knowledge of the matters
in issue, and the facts are in dispute, the expert's opinion
may only be elicited through the vehicle of a hypothetical
question: see The Law of Evidence in Canada, supra, at pp.
537-39. Also, experts are not to rely on "novel" or
"experimental" scientific methods: Bisset v. Romaine, (1990)
38 C.P.C. (2d) 10 (B.C.S.C.).

In Perricone v. Baldassarra, (1995) 7 M.V.R. 91
(Ont. Gen. Div.), at p. 99, the trial judge held that where
the expert assumes the role of an advocate, he or she can no
longer be viewed as an expert in the legally correct sense;
instead her or his evidence "must be viewed as advocating the
case of a party with the attendant diminishment in the
credibility". In Perricone, the trial judge suggests the
guidelines laid out in National Justice Compania Naviera SA v.
Prudential Assurance Co. ("The Ikarian Reefer"), [1993] 2
Lloyd's Rep 68 are applicable to weighing the credibility and
admissablility of expert evidence. Those guidelines are
paraphrased at p. 99:

1. Expert evidence presented to the
court should be, and should be seen to be,
the independent product of the expert
uninfluenced as to form or content by the
exigencies of litigation.

2. An expert should provide independent
assistance to the court by objective
unbiased opinion in relation to matters
within his or her expertise. An expert
witness should never assume a role of
advocate.

3. An expert should state the facts or
assumptions on which the opinion is based
and should not omit to consider material
facts which detract from that opinion.

4. An expert should make it clear when a
particular question or issue falls outside
of the expert's expertise.

5. If an expert's opinion is not
properly researched because insufficient
data is available, this must be stated
with an indication that the opinion is no
more than a provisional one.


Summary

In order to be admissible as an exception to the
rules of evidence that a witness may only testify to matters
that he or she has knowledge of, the following criteria must
be met:

1.The evidence of the expert must be "necessary" for the
trier of fact in deciding the issues. It must not be
regarding matters that the trier of fact can deal with
independently.

2.The evidence must involve "special knowledge or skill" and
not be within the general knowledge of the ordinary witness
or that of the trier of fact.

3.The evidence must be based on appropriate theories or
practices within the area of expertise.

4.The weight to be given in part will depend on the expert's
compliance with the guidelines set out in The Ikarian
Reefer, supra. Non- compliance may render the expert's
testimony inadmissible if its admission runs afoul of the
relevancy rule in Mohan, supra.

Good post Ray.

[Raymond Wand]

Hey Marcel, thanks, nice to see your reply too!

Cheers,

[Marcel Cyr]

Hey Marcel, thanks, nice to see your reply too!

Cheers,

Hope all is good Ray.

[John Kogel]

Thanks, Ray. We know where we stand in Canada, but Nick is in Philly, so we are back to maybe so, maybe no.

Nick, I think it would be good to consult a lawyer in your area. It may help to know who the judge will be. The point about you witnessing for the plaintiff is a good one. The defense may use that to dispute any opinion you may have, and then produce an expert of their own. Nevertheless, you should get paid for your opinion if asked for one in court.

No doubt, you should arrange to be paid for missing a day of inspections, maybe several days, even if you are just there to support the facts of the inspection.

[Eric Barker]

I don't really view myself as an expert witness here.

That'd be my approach. I consider myself a generalist. If I call myself an expert, regardless of what I consider myself, then I gotta prove and defend it and more the I build up my qualifications the more someone else will try to tear them down. As my contract says, I provide an opinion that's based upon training and experience and I prefer to avoid claiming much more than that.

[BridgeMan]

And a word of caution for the OP:

Be prepared to be led down an adversarial path by opposing counsel that will try to confuse you and discredit your testimony. Do your best to remain calm and not become emotional, because it will ruin your credibility with the jury. And be prepared for trick questions--"Have you finally stopped beating your grandmother?" obviously cannot be answered with a simple yes or no.

[Jerry Peck]

I suspect that if Nick presents his client with an expert witness contract and reasonable but high fees, that Nick will not be called in to testify. Present it as though are are ready, willing and able to do it ... let her decide not to have you there based on the cost of having you there.

For all the work and preparation which will need to be done, and for blocking out the time for court, the cost will be $xx,xxx.xx - not worth that much to her to have you there.

That will leave it to the electrician which performed the emergency repairs and stated was needed to be done and the electrician who did nothing. The electrician who performed the emergency repairs can very well testify that, based on what they saw, what they did, and what was in the inspection report and was not corrected, that the electrician who did nothing should be found at fault.

[Nick Ostrowski]

And a word of caution for the OP:

Be prepared to be led down an adversarial path by opposing counsel that will try to confuse you and discredit your testimony. Do your best to remain calm and not become emotional, because it will ruin your credibility with the jury. And be prepared for trick questions--"Have you finally stopped beating your grandmother?" obviously cannot be answered with a simple yes or no.

Good advice Bridegman....and everybody else too. This is unchartered waters for me but I do well when put on a spot. And, I'm not on trial. I'll just be there to testify as to what I saw.

The way I see it is if somebody wanted to find fault with my initial assessments of the condition of the electrical system, why would an electrician be at the property making repairs to conditions that did not exist?

[Lon Henderson]

I have only been an expert witness twice and neither time did I actually end up in court. Both cases were settled.

Thanks for the witness contracts. Those are very useful.

[Mark Fisher]

I have only been an expert witness twice and neither time did I actually end up in court. Both cases were settled.

This happens to me, too. In most cases, after deposition, they settle. I like to think it is because I have rock solid evidence prepared to be presented in a clear and irrefutable manner. I charge a lot for that service.

Good luck!

[Keith Gipe]

I can't say how it work in other states, but Florida allows an inspector or other expert to testify as an expert witness even if they were party to prior investigations. I worked several years as an inspector for an engineering firm specializing in construction defect litigation support. We inspected hundreds of commercial properties each year and all of us (principal engineer, field engineers, inspectors and project managers) were regularly subpoenaed to testify and we were paid as expert witnesses). We included "litigation support" and "expert witness" as optional services with the rates in our standard fee schedule (a box in the professional service agreement). Never was a problem with the attorneys except occasionally they wanted to renegotiate the fees or dispute the time we billed for litigation support. Once you're on the stand, either attorney can ask anything they want and you have to answer truthfully within the scope of your expertise and experience. If the attorney that subpoenaed you thought your testimony would hurt his case, he wouldn't have subpoenaed you. Conversely, the opposing counsel can subpoena you if they think your testimony favors their case.

[Nick Ostrowski]

Well, it's 5pm on Tuesday and the case is supposed to be heard at 10:30am tomorrow. A representative from my client's law office called me this past Friday to ask if I was still available for Wednesday morning. That's the last I heard from anybody about the case. I e-mailed the witness contract to the client yesterday and left her a voice mail as well. I hadn't heard from her yet this morning so I called her again and left another voicemail. No response all day. I don't even know where the court location is, town or street address. Oh well. Not my worry at this point. It just leaves my day free and open tomorrow.

[Lon Henderson]

It just leaves my day free and open tomorrow.

Hang out the Gone Fishin' sign and forget about it...........

[Nick Ostrowski]

Hang out the Gone Fishin' sign and forget about it...........

Works for me. I think the fee schedule in the witness agreement I e-mailed to her scared her off. But somebody could have at least called me.

[Eric Barker]

But somebody could have at least called me.

WHAT? Now you're expecting courtesy? Brother!!!!!