CONSTRUCTION LAW AND LITIGATION May 2012

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1 I suggest the following simple ten ways to avoid malpractice in litigation: CONSTRUCTION LAW AND LITIGATION May 2012 IN THIS ISSUE Lawrence J. West gives us a Top 15 List for Preparing the Expert Witness for Deposition. Checklist for Attorneys When Preparing an Expert Witness for Deposition ABOUT THE AUTHOR Lawrence J. West has practiced civil litigation in Houston for twenty-four years and is AV rated by Martindale-Hubbell. He is a founding partner of Johnson, Trent, West & Taylor. Mr. West defends individuals, partnerships and corporations in all types of civil litigation, including Construction Defects, Work Site Accidents and Premises Liability. ABOUT THE COMMITTEE The Construction Law and Litigation Committee consists of lawyers who represent general contractors, design/build firms, subcontractors, construction lenders, architects, engineers and owners. The Committee provides an opportunity to keep up to date on the latest developments in construction law, as well as a good networking and referral source for experienced construction litigators throughout the country. Members can also obtain information on liability and damage experts with inquiries to the Committee. Learn more about the Committee at To contribute a newsletter article, contact: Tamara L. Boeck Vice Chair of Publications Stoel Rives LLP (208) The serves a distinguished, invitation-only membership of corporate and insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit the civil justice system, the legal profession, society and our members.

2 - 2 Have you ever presented an expert witness for deposition and his/her performance was less than ideal? If the answer to this question is yes, then perhaps a checklist of items would be helpful in preparing your expert. As the old saying goes: There are no poor witnesses, only poorly prepared ones. To assist you during your depo prep session, below is a checklist of items to cover with your expert witness. 1. Update Your Resume Prior to the Depo Make sure your resume is accurate (read and re-read your resume). Make sure educational history, degrees obtained and dates of employment are accurate. In advance of your depo, think about who your previous supervisors were, what your job title was and what your responsibilities were at previous jobs. 2. Organize File and Know Your Report Be familiar with your file so you can use it as reference material. Consider the depo an open book exam. Your report is the most important part of your file (read it). Does your report memorialize all of your significant opinions or do you expect to prepare an additional report? 3. During the Depo Prep Session, Leave Time for a Mock Cross Examination Putting your expert under a Mock Cross Examination always reveals a weakness that would be helpful to discuss (particularly if the witness is not a seasoned veteran). 4. Consider Answers to Introductory Questions When were you first contacted? Who contacted you? What were you asked to do? Did you meet with the attorney to discuss your assignment? How many times did you meet with the attorney? What materials did he/she give you? Did you request additional information (documents or depo transcripts)? 5. Don t be Fooled by the Informalities of the Depo Location Same penalties for perjury apply as though you were in court. Transcript and perhaps video will be made of all your answers. Transcript and video can be used at trial so your answers are important. Dress in a coat and tie (even if lawyers do not). 6. During the Depo Listen Carefully to the Question Typically deponents begin thinking of an answer while the question is being asked and are not paying close enough attention to the question. Be patient and disciplined to listen carefully to the question. Jurors listen carefully because they are not preparing for a response.

3 - 3 You control the pace of the depo and timing of breaks (don t be afraid to ask when you get to a stopping point, could we take a short restroom break ) Do not speed up the cadence of your answers. o That plays right into the hands of opposing counsel. o He has thought in advance of all of his cross-examination questions. o You have not thought of all your answers in advance. o If you speed up the cadence of your answers, you are likely to get trapped. Answer the question fully but do not expand on your answer. Listen carefully when the Plaintiff s attorney tries to summarize as it will always include words and descriptions that you did not previously give (that is why he/she wants you to agree). Do not let the lawyer put words in your mouth. o The lawyer will likely ask: Isn t it possible Your response should be based on the data we have today, it is unlikely. Look out for the malignant statement followed by the benign question. o Usually the malignant statement comes in the form of a summary of your words. o You can always ask the attorney to repeat or rephrase his question - and typically the rephrased question will not be as sharp. If the other lawyer does not ask you all you know, do not volunteer information not called for by the question. If a yes or no will truthfully and adequately answer a question, then simply say yes or no. If you do not know the answer to a question, say I don t know. o Do not feel that just because the question is asked you are expected to know the answer. Give factual information in answer to a question only if you have first-hand knowledge of the facts. Do not base your answer on guessing, surmise or speculation. Be cautious in estimating distances and elapsed time periods. Take your time in answering the questions (but not to the point where it s unnatural). o This will give the attorney that hired you a chance to object to the question if need be, and will give you an opportunity to think about your answer. Do not ask the attorney that hired you if you are required to answer a certain question. 7. Opposing Counsel s Agenda During Depo Plaintiff s counsel wants to establish what documents/data you looked at and what you chose not to look at. Plaintiff s counsel wants to flush out all of your opinions: those that support his client s position and those that do not. Plaintiff s counsel wants to pin you down to a story that he can later develop testimony to rebut at trial. Plaintiff s counsel wants to lock you into a story you will be unable to change without contradicting your deposition testimony.

4 - 4 Plaintiff s counsel wants to give you a hypothetical to get you to concede if the facts were X you would support his client s position. o Try not to get trapped by a hypothetical but you must balance that with the overriding need to be a credible witness that concedes the obvious ( If the facts were X it would be important to do Y ). o Watch out because he will blow that up to show the jury that since your attorney s client didn t do Y in this particular case, they are negligent. o Listen carefully to any summary of your testimony. 8. Do Not Be Condescending or Argumentative to Opposing Counsel Do not say counselor. Do not be angry or argumentative ( I didn t schedule this depo, you did ). Do not say I want to talk to my lawyer. o If you have previously given a depo where you reached a different conclusion on arguably similar facts, re-familiarize yourself with those facts. If you need documents from the attorney that hired you tell him/her before the depo. 9. When Asked About Critical Opinions, Do Not Use Weasel Words I don t think so or maybe not. o If you are charged with murder and on the witness stand asked whether or not you murdered someone, if you say I don t think I did the jury is going to believe, of course, that you did do it. So when you arrive at the ultimate issue of the case, be more assertive. If you need to leave yourself some wiggle room, say based on the facts available to date 10. Do Not Be Afraid to Admit You Met With the Attorney That Hired You Every competent lawyer has conferences with his client about upcoming depositions. If you are ever asked about what the two of you discussed in your meetings or telephone conversations, you discussed the facts and opinions. If you are asked did he tell you anything about the deposition today? you testify that your lawyer merely instructed you to be completely honest about all you know. If the same question is asked five times, don t be afraid to give the same answer. If the question is have you gone over your testimony, the answer is we met to discuss the opinions and conclusions you have in this case and you intend to provide those same opinions here today. 11. Tell the Truth Tell the truth to the best of your knowledge. o Do not be afraid to admit that you have had discussions about the facts of the case with the lawyer that hired you. o Every competent lawyer has conferences with his client about upcoming depositions. o But he/she did not influence your opinions. o You must be credible and independent.

5 - 5 Do not be afraid to say you cannot remember. o If any document would help you remember, please ask for the opportunity to pull that document from your file. o When you get tired, feel free to ask for a break or to go to the restroom. 12. Avoid Nervous Ticks Keep your hands away from your mouth. Don t unscrew cap to water bottle and take a sip before each answer. Don t rock back and forth in your chair. 13. Remember a Written Transcript is Being Made Answer each question with a verbal response, the court reporter cannot take down the nod of a head. After the depo, read the transcript for transcription errors. Use correction pages at back of the depo transcript (example: if you used the word incident and the court reporter typed instant you will want to make that change). 14. To Avoid Misunderstandings, Use Terms Everyone Knows 15. Get a Good Night s Sleep Before the Deposition

6 - 6 PAST COMMITTEE NEWSLETTERS Visit the Committee s newsletter archive online at to read other articles published by the Committee. Prior articles include: JANUARY 2009 Managing Risks in Sustainable Design and Construction Kevin Gleeson and Maria Meldrum NOVEMBER 2008 In Pursuit of Partial Indemnification By Brian P. Heermance and Kevin A. Hickman MAY 2008 Defenses in Construction Defense Cases By L. Franklin Elmore and Steven B. Johnson MARCH 2008 The Loss in Progress Doctrine After Montrose By Christina L. Dixon APRIL 2007 Prejudice to the Compensated Surety as a Defense to Liability By Mark D. Herbert, Bradford C. Ray and Kevin A. Croft FEBRUARY 2007 The Contractual Liability Exclusion By Thomas V. McCarron DECEMBER 2006 Construction Deficiencies: An Overview of Construction Defect Categories and the Latent Defect Exclusion By Tamara L. Boeck

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