There is No Crying in Baseball . . . Facility Construction

Mark O. Morris and Zaven A. Sargsian | Snell & Wilmer | September 25, 2018

The Utah Court of Appeals recently decided Camco Construction, Inc., et al. v. Utah Baseball Academy, Inc., et al., 863 Utah Adv. Rep. 58, 2018 UT App 78. The case involved the plan of Athletic Performance Institute LLC (“API”) to build an indoor athletic facility, which it would then lease to the Utah Baseball Academy Inc. (“UBA”). Robert Keyes owned both API and UBA. Unfortunately, the baseball facility was not built and no one came. Rather, the project became mired in a dispute and litigation.

API’s plan to build an indoor athletic facility began smoothly. To obtain financing for the project, API reached out to a banking institution (the “Bank”). The Bank agreed to provide API a 12-month construction loan, which would then convert to a 20-year, $1.9 million loan. Mr. Keyes and UBA guaranteed the loan to API, and hired Camco Construction as its general contractor for the project. After beginning construction, things took a turn for the worse. The project faced several difficulties, including funding issues and a floor elevation issue that made the sports facility suitable for only baseball—even though the plan was to make the facility usable for basketball and other sports.

When API and Camco could not resolve the construction-related dispute, Camco filed a mechanic’s lien and, eventually, a lawsuit against API. The legal battle, however, spread to the Bank. After Camco filed its mechanic’s lien, the Bank refused to fund API’s draw request. This refusal became a source of conflict between API and the Bank, and API, UBA, and Mr. Keyes (collectively, “Owner”) asserted multiple claims against the Bank in the litigation. Among its many claims, Owner claimed that the Bank caused intentional infliction of emotional distress, breached the loan documents, acted in bad faith by failing to fund its draw request, failed to cooperate with Owner’s attempt to refinance, and demanded a larger payoff than the Bank what was actually due.

The Bank ultimately prevailed on all counts. During a long and complex case, the trial court struck Owner’s jury demand, granted the Bank summary judgment on several of Owner’s claims and, after a bench trial on the remaining claims, ruled in favor of the Bank. Owner appealed from the ruling, raising numerous issues on appeal. Although many of the issues were easily affirmed by the Court, and do not deserve attention in this article, there are three things that can be learned from the Court’s opinion.

First, a claim by a corporation of intentional infliction of emotional distress (IIED) is not viable. At the district court, API and UBA had argued that the Bank’s failure to fund its draw request was “outrageous conduct” giving rise to an IIED claim. This claim was dismissed on summary judgment and the Court of Appeals affirmed. After noting that API and UBA were both corporations, the Court held that corporations cannot suffer emotional distress. The Court explained that it “is a logical tenet . . . because a corporation lacks the cognizant ability to experience emotions,” and therefore “cannot suffer emotional distress.”

Second, jury waivers are enforceable against sophisticated parties, even if the parties, as a matter of fact, did not—but had the chance to—read the waiver. Here, although Owner had signed multiple jury waivers in the loan documents with the Bank, Owner argued that the “right to a jury trial may only be waived if done knowingly and intentionally.” Owner argued that if the documents containing the jury waiver were not read, then the right to jury could not have been knowingly and intentionally waived. In discussing Owner’s argument, the Court of Appeals assumed the federal requirement that a jury waiver be made knowingly and intentionally applies in Utah for purposes of deciding the case. The Court, however, rejected Owners’ substantive argument. The Court explained that it has repeatedly held that a sophisticated party cannot assert failure to read a contract as a defense to a claim that it waived its rights. In this case, the Court was incredulous as the jury waiver was contained in 20 of the loan documents. The Court stated that, to the contrary, Owner’s failure to read a jury waiver, 20 times, operated to support the trial court’s decision to strike Owner’s request for a jury.

Third, attorneys need to adequately brief all arguments on appeal. No less than seven times, the Court of Appeals refused to consider Owner’s arguments because they were inadequately briefed. This included (1) Owner’s challenge to the district court’s dismissal of their fraud claim; (2) that the jury waiver provision was an adhesion contract; (3) that the jury waiver was overbroad and ambiguous; (4) that there was a fiduciary relationship between the Bank and Owner; (5) that the Bank failed to cooperate in the refinance process; (6) that the Bank breached the loan documents by demanding more than it was due; and (7) that Owner was entitled to a mistrial. The Court cautioned that “[a]n adequately briefed argument contains the contentions and reasons of the appellant with respect to the issues presented with citations to the authorities, statutes, and parts of the record relied on. . . . A reviewing court is not simply a depository in which the appealing party may dump the burden of argument and research.” Thus, attorneys need to adequately brief all issues raised on appeal lest potentially winnable arguments are disregarded by the Court.

Construction Arbitration: The Pros and Cons

Jason T. Strickland | Wardand Smith | August 29, 2018

It’s an unfortunate fact that many construction projects end in disputes, driving the parties into some form of dispute resolution.

Many of these construction disputes are resolved through arbitration, which is a process by which the parties in dispute, instead of going to court to resolve the matter, agree to submit their case to a third-party neutral, known as the arbitrator, who acts as a judge and jury.

How is Arbitration Different?

Arbitration is often confused with mediation and, sometimes, with a lawsuit.  Each involves different forms of dispute resolution.

Mediation is a settlement conference in which the parties meet (typically in person) and use a third-party neutral to act as a settlement facilitator.  The third-party neutral is called the mediator.  Although the mediator has authority to conduct and administer the mediation, the mediator has no power to force or compel settlement.  The parties submit their dispute to the mediator either because a court or a contract provision requires that they do so, or because they feel the mediator will be able to facilitate a settlement that might not otherwise be achieved without a mediator’s assistance.  However, ultimately, the parties can refuse to settle.

A lawsuit is conducted in a court of law and usually is initiated by a plaintiff filing a complaint, in which the plaintiff will ask for some form of relief from the defendant.  The right for the parties to have their dispute adjudicated in a court is provided in state or national constitutions, or statutes passed by legislatures. The court where the lawsuit will take place is a government institution from which, by law, the parties are entitled to seek a decision as to their rights and obligations.

Arbitration is essentially a lawsuit but without court involvement.  The parties agree (either in a contract before a dispute arises or, through a subsequent agreement to avoid a lawsuit) to submit their dispute to arbitration rather than to pursue a lawsuit in court.  The parties’ agreement gives the arbitrator the power to issue a decision as to the parties’ rights and obligations, and such decision will be legally binding on all parties.  Thus, arbitration is very different from mediation because the third-party neutral provides a legally binding decision.  However, arbitration is not mutually exclusive with mediation.  In many cases, parties will have a dispute resolution provision in their contract that will allow, or require, the parties to mediate first, and if the mediation is unsuccessful, to then submit their dispute to arbitration.

The Major Differences Between Arbitration and Lawsuits

Because arbitration is primarily an alternative to a lawsuit, the two processes have similarities, but there are also stark differences.  The following are the major distinctions between arbitration and litigation in court:

The Decision Maker and the Decision Process

In a lawsuit, the dispute is ultimately decided after a trial before a “finder of fact.”  The judge is a government employee who has the authority to oversee and administer the case and the trial. The judge decides questions of law.  At trial, frequently a jury will decide the facts, although in some cases, the judge will determine both the law and the facts.  The judge decides the law and applies the law to facts to reach the outcome.

In arbitration, the contract or agreement setting up the arbitration controls the process.  The parties have great latitude to define the procedure and rules that will govern the arbitration.  However, there are some limits to this latitude.  For example, an arbitration clause that provides that the parties will flip a coin to decide the result will probably not be enforceable.

In arbitration, there is a private arbitrator (or a panel of private arbitrators) who acts as both the judge and the jury:  administering the case, deciding the facts, and applying the law. Arbitration ends after an evidentiary hearing that is similar to a trial in a court of law.

Typically, the arbitrator is chosen by the parties (or, sometimes, by a court) based on the subject matter of the dispute.  Thus, construction arbitration will likely have a construction lawyer or someone with extensive construction experience serving as the arbitrator.  This reduces the time and effort necessary for the attorneys to “educate” the arbitrator on construction issues and makes the arbitrator better suited to render a decision in the case.

Unlike a construction specialist serving as an arbitrator, in a lawsuit, the judge is a generalist.  Although the judge may have some experience hearing construction cases, it is likely that most of the cases the judge has heard are not related in any way to construction matters.  Similarly, a typical juror will have little experience with the highly technical issues presented during construction arbitration.

Rules

Arbitration is intended to be less formal than a lawsuit.  The rules of evidence and of civil procedure are typically not strictly enforced and an arbitrator has wide latitude to frame the process for conducting the arbitration.  Because of this informality, disputes regarding process and rules commonly arise in arbitration.   Generally, however, the parties, working with an arbitrator, will agree to a scheduling order that sets forth the deadlines, process, and rules for conducting the arbitration.  This order will typically include provisions for how long the discovery period will last, where and when the evidentiary hearing will occur, the content of the arbitrator’s final award, and the amount and type of discovery that will be allowed.

In a lawsuit, depending on the court in which the litigation is conducted, there are a set of rules (typically called the Rules of Civil Procedure) that dictate how the parties will conduct themselves and present their claims.  Although these rules allow some limited flexibility, and although a judge will sometimes allow deviation from strict adherence to them, the Rules of Civil Procedure allow the parties less flexibility than in arbitration.

Arbitrations tend to be (or, at least, are intended to be) a more efficient and economic means of dispute resolution.  This is achieved by the less formal nature of arbitration and the ability of the parties and the arbitrator to craft a process for conducting an arbitration that is the most efficient for their particular needs, without regard to the formal rules of evidence or civil procedure.  However, many parties (and/or their attorneys) frequently turn arbitration into what attorneys call “arbigation” in which just as much discovery is conducted in arbitration as would be the case in litigation.  Combined with the cost of the arbitrators, this can make arbitration as expensive, if not more expensive, than litigation.

Appeals

There is typically no appeal from an arbitrator’s decision.  This is primarily because appeals create significant costs and delays, the very things arbitration is designed to avoid.  If a party believes that an arbitrator has made a mistake of law or determined facts incorrectly, it will be very difficult for the dissatisfied party to pursue an appeal of the arbitrator’s award.  The only real bases for asking a court to overturn an arbitrator’s decision is fraud (the arbitrator took a bribe), bias (the arbitrator clearly evidenced an overt favoritism toward one of the parties), or that the arbitrator decided an issue that was not within the scope of the arbitration.  These bases rarely exist and are even more rarely provable.

The lack of an appeal process in arbitration is good in the sense that a final result can be achieved more quickly and less expensively.  It’s bad in the sense that a party may be stuck with an undesirable result which is the product of an arbitrator’s clearly erroneous decision.  It’s also bad because over the last couple of decades, as more and more construction cases are resolved with arbitration, there have been much fewer published court decisions on issues that are prevalent in the construction industry.  Therefore, there is little or no precedent on these issues to guide even a diligent and thoughtful arbitrator.

In contrast to arbitration, in litigation, the parties can appeal the final decision of the trial court to an appeals court.  Frequently there are multiple levels of appeals courts and, as a result, there can be multiple levels of appeal for any party dissatisfied with the outcome of a lawsuit.  Unlike arbitration decisions, many appellate court decisions are published and available for precedential guidance.

The Ability to Add Additional Parties

Construction disputes routinely involve claims between nearly every party on the project at issue, and the number of such parties is often quite large.  The ability to add parties to arbitration is more difficult than with a lawsuit.  Arbitration is limited to those parties who have agreed to resolve their disputes through arbitration (and this agreement typically will only be easy to obtain at the beginning of a project when the project contract is being negotiated).

In a lawsuit, the parties can generally add other parties to the dispute so long as the court has jurisdiction over those parties. Such jurisdiction will generally exist if the party to be added lives in the state where the court sits or has substantial connections to that state—one or the other will probably exist if that party has agreed to join in a construction project.  A lawsuit makes it much easier to join those parties.  This is beneficial as, among other reasons, it avoids the potential for the inconsistent results that can occur if there are multiple separate arbitrations or lawsuits concerning the same subject matter.

In situations where some, but not all, of the parties to a lawsuit have an arbitration agreement, the judge will typically order the parties with the agreement to arbitrate and stay or suspend the lawsuit until the arbitrating parties have finished their arbitration.  This allows the judge to effectively “delegate out” to arbitration the part of the dispute that is between the parties subject to the arbitration agreement.

Recovery of Attorney and Other Fees

Attorney’s fees are recoverable in arbitration if they would be recoverable in a matter of the same type in litigation.  To be recoverable in litigation, there must be a statutory provision allowing for the recovery of attorneys’ fees in that type of case or in the type of claims being asserted in that case.  The North Carolina Revised Uniform Arbitration Act (“NCRUAA”) also requires that the arbitration agreement include a provision authorizing an award of attorneys’ fees.  Therefore, arbitration, in and of itself, does not make it any easier to recover attorneys’ (and other) fees than if the matter had been heard in a court of law.

Court Involvement in the Arbitration Process

Even with arbitration, it is likely that a court will be involved in some capacity.  If one of the parties to an arbitration agreement refuses to engage in the arbitration, then a court can compel that party’s participation.  Absent a court exercising its inherent governmental power to compel arbitration, the recalcitrant party might refuse to honor its arbitration agreement and then the dispute would be forced into a lawsuit to resolve the issues—a development directly at odds with the parties’ intent as evidenced in their agreement.

The court’s ability to compel arbitration may be found in the Federal Arbitration Act (“FAA”), which applies to cases involving interstate commerce, and most construction cases fall under this definition.  Basically, the FAA requires that agreements to arbitrate be honored and enforced.  This allows a party seeking to enforce an arbitration clause to get the assistance of the federal courts to compel the other party to arbitrate.  However, the FAA doesn’t contain many, if any, specifics on the process for conducting the arbitration.  Thus, if a party is relying solely on the FAA to enforce an arbitration agreement, the process and rules used in the arbitration will likely be drawn from the parties’ arbitration agreement, directed by the court, or agreed to by the parties.

Many states, including North Carolina, have adopted some form of the Revised Uniform Arbitration Act.  The NCRUAA functions much like the FAA.  Importantly, however, the NCRUAA contains numerous procedural mechanisms for setting up and conducting arbitration.  These include, among others, provisions on compelling parties to conduct an arbitration, appointing the arbitrator(s), staying pending court cases while the arbitration is conducted, seeking the court’s assistance in conducting discovery, and enforcing an arbitration award in court.  The FAA and NCRUAA ensure that if a valid arbitration agreement exists, it will be enforced regardless of whether a case is first filed in state or federal court.

Avoiding Unfavorable Local Law

Arbitration can also have the (arguably unintended) result of allowing the parties to avoid application of local substantive law on issues like evidence, jurisdiction, venue, and choice of law.  This can occur because most federal courts have held that enforcing a requirement to arbitrate includes not only compelling arbitration, but also enforcing the process within the arbitration agreement by which the parties agreed the arbitration would be conducted. For example, if the parties agreed, in the contract, to “arbitrate any and all disputes arising from the contract in Wake County, North Carolina,” then a court will likely hold that enforcing the arbitration agreement includes enforcing the requirement that the arbitration occur in Wake County—even if there is a state law providing that the particular dispute should not be heard in Wake County.

Thus, parties seeking to avoid particular state laws regarding venue and choice of law will include an arbitration clause as a mechanism to allow them to choose a venue, choice of law, or other procedure or rule that would otherwise be barred by the applicable local state law.  This is significant because the state statute, generally, would otherwise control over the terms of a contract.  The state law can be avoided because the FAA pre-empts, or is superior to, a contrary state law and it allows the terms of the agreement to control.

A practical example of why a party might wish to rely upon the terms of the arbitration agreement in a construction contract is that many any large construction projects in North Carolina involve out-of-state general contractors.  The out-of-state contractors prefer to litigate disputes with their subcontractors in the general contractor’s home state, not in North Carolina.  However, North Carolina has a statute that requires that a case involving a construction project in North Carolina be heard only in North Carolina courts with the application of North Carolina law.  By including an arbitration clause in the construction contract providing a non-North Carolina venue, an out-of-state party can, in most cases, avoid the state law requiring the case be heard in North Carolina and instead have the matter heard in the party’s home state.

Third Party Administration of Arbitration

Several different organizations administer arbitrations.  The two most common are the American Arbitration Association (“AAA”) and JAMS.  These organizations serve as facilitators of the arbitration process and allow an arbitration to be conducted with even less court involvement.  Use of these services will increase the cost and time of arbitration, but using one of these services can help to move the arbitration process along in cases where one of the parties is stonewalling.  In most cases, in order for one of these services to be involved there must be a prior agreement to arbitrate that includes the requirement to use of one of these services.

Many standard form construction contracts contain arbitration clauses, and many of these clauses also require that AAA oversee the arbitration.  Once a dispute arises, the parties will sometimes attempt to opt out of this requirement and arbitrate under the AAA Rules while waiving the requirement of AAA administration.  The parties should be careful when doing this because the AAA rules require that AAA administration be included.  At least one court decision holds that if the parties agree to administer their arbitration per the AAA rules, they are also agreeing to AAA administration of the arbitration.

Conclusion

Most parties involved in a construction project have a contract that defines their responsibilities and many of these construction contracts also contain arbitration clauses.  Therefore, participants in the construction process must be aware of the pros and cons of arbitration.

Anatomy of a Construction Dispute- An Alternative

Christopher G. Hill | Construction Law Musings | July 18, 2018

Over the past three weeks, I’ve discussed three “stages” of a construction dispute from the claim, to how to increase the pressure for payment, to the litigation. While these three steps are all too often necessary tools in your construction collection arsenal, they are expensive and time consuming. No well run construction business can or should budget for litigation. The better practice would be to engage a construction attorney early in the process and avoid the dispute altogether if possible. Unfortunately, even the best of planning can lead to the need to hire a construction lawyer for the less pleasant task of assisting you in getting paid.

This post is about an alternative to the scorched earth of stage 3 of the process that can and should be at least considered either before or after the complaint or demand for arbitration has been filed. I am of course speaking about voluntary mediation. Why did I emphasize “voluntary?” Because to me mandatory mediation (as required in many construction contracts) is a bit like forced volunteerism, it is something that the parties will go through to “check a box” but will not have their hearts in it. Remember, by the time the mandatory mediation clause kicks in, the parties are likely at an impasse in their construction dispute and are ready to fight. Being forced to mediate, especially from the party seeking payment, can (and in my experience often does) make the parties just go through the motions at best and be hostile to the process at worst. Neither of these attitudes are conducive to resolving a dispute.

All of that said, and as anyone that has followed Construction Law Musings for any period of time knows, I am a HUGE fan of voluntary mediation. I am such a fan that I went through the additional time and effort to become a certified mediator here in Virginia. As opposed to mandatory mediation, when the parties decide that, as business people, they will sit down with a third party and try to come to a resolution that is at least one that they can live with, the process usually leads to the end of the dispute. Even in those instances where the process does not lead to an immediate resolution, mediation has its benefits.

I have personally gone into a mediation thinking that either my client (when I’m wearing my construction attorney hat) or the parties (when acting as a mediator) have no chance of settling their differences short of walking out and continuing to court and, with the help of a qualified mediator, have left with a resolution that seemed impossible. The parties managed to get past the anger and the “my way or the highway” battle cries of the arbitration and litigation worlds and find a way to walk out of the mediation at least equally displeased with the outcome. The two sides also walked out having removed the risk of a poor result in litigation and the certainty of a much higher attorney fee bill.

In short, before charging to the end of what I call “Stage 3- The Last Straw,” I always recommend that mediation be considered as an alternative to the long, expensive and risky litigation or arbitration process.

I recommend that you look to my ADR page here at Musings for more of my (and others’) thoughts on mediation and its benefits.

Contractors/Owners: Watch What You Say When a Dispute Arises

Earl K. Messer | Taft Stettinius & Hollister LLP | August 14, 2018

After carefully negotiating the precise terms of a construction contract, parties sometimes let down their guard and become much less careful with communications regarding problems as the project proceeds. This can result in costly mistakes and litigation. A recent case illustrates how imprecise wording in a contractor’s attempt to collect outstanding payments resulted in costly litigation and allegations of fraud. Although the fraud claim ultimately was defeated, the parties went through the costly process of document exchanges and review and depositions, detailed motions and an appeal.

In Parmatown South Association v. Atlantis Realty Co., Ltd., a property owner sued a then defunct construction company’s principals for fraud following an incomplete construction project. During construction, the property owner stopped making payments to the contractor who, in turn, stopped making payments to subcontractors.

In a 2009 letter, the contractor requested that the property owner pay $21,000 to satisfy outstanding pay applications and two change orders. The contractor wrote that once the payment was made the contractor would “be willing to return and complete the work.” The contractor noted, “[T]here is no way…to get subs back onsite without ‘cash in hand.’” Additionally, the letter stated that full payment plus consideration for re-mobilization costs, subcontractor replacement costs, and material price changes would also be due upon completion of the project.

The property owner made the $21,000 payment, but the contractor never completed the project. Then, an unpaid subcontractor filed a mechanic’s lien on the property. When a third party filed a foreclosure action on the property, the property owner sued the contractor for breach of contract. Before the lawsuit was resolved, the contractor ceased operations.

Because the general contractor became insolvent, any breach of promise claim against the general contractor would be worthless. The property owner went after the contractor’s principals instead. The property owner claimed that the principals committed fraud by falsely representing that the contractor would complete the project in return for the $21,000 payment when, to the contrary, the principals allegedly had no intention of having the general contractor finish the project. The trial court granted the principals’ motion for summary judgment that there was no basis for a fraud claim. The property owner appealed the decision.

The appellate court found that the communications from the principals of the general contractor did not support a claim for fraud. The proof that is necessary to succeed on a claim for fraud is much higher than it would have been if the claim had been against the general contractor for breach of a promise. To prove fraud, the owner was required to present credible evidence that the principals made promises that they did not intend to keep, that the owner reasonably relied on those promises and paid the $21,000 on that basis. If the claim had just been against the contractor for breach of promise, the proof necessary would have been meaningfully less: that a promise was made and the owner relied up it to its detriment.

The lesson for a contractor from this case is twofold. Inducing an owner to make payment based on representations of what may happen as a result of such a payment may (1) land individuals who actually made the statements in court as defendants facing a fraud claim—which they ultimately may well win because fraud claims are hard to prove, but which costs precious time and money to address; and (2) land the general contractor in court as a defendant in a breach of promise claim—which is easier to prove and which may take a full-blown trial to resolve.

Parmatown could have been decided very differently if the contractor’s letter used only slightly different language, especially if it had not been a fraud claim against the individuals. Imagine that the phrase “would be willing to return and complete the work” was replaced with “will return and complete the work.” With a small language change, no more than a spelling check suggestion or auto-correction, the contractor’s letter would have read like a promise to complete the project. This small difference could have created a large impact on litigation costs and, perhaps, the ultimate liability of the principals in this fraud case, or of the general contractor had it been a breach of promise case.

The importance of precise language in construction disputes is not exclusive to contractors. Property owners and other parties also need to be conscientious and disciplined communicators. For example, a property owner might tell subcontractors that she will “take care” of the subcontractors if they complete work when a general contractor has not paid them. Such a communication could create the complications seen in the Parmatown decision.

Finally, this case is also a reminder of the time and expense of the litigation that can result from dispute communications. Small misstatements or missteps can have long-lasting and expensive effects. In Parmatown, the contractor and its principals had to defend against the property owner’s claims in a trial court. Despite winning in the trial court, the contractor’s principals also had to defend against an appeal. Nearly nine years passed between the contractor sending its letter requesting the $21,000 payment and the appellate court decision. In a claim involving ambiguous or less favorable language, litigation could last as long as the Parmatown case or involve a full trial.

How to Be an Effective Expert Witness in a Construction Dispute

Kent B. Scott | Babcock Scott & Babcock, PC | June 28, 2018

Being an expert witness in a construction dispute can be a difficult and stressful experience, but one that is made easier by following a helpful set of rules that govern the process. An expert witness is placed in a very controlled environment where every question is calculated and precise. This setting is atypical of daily life and as a result, being a good witness will take practice and refinement over time. Faced with the task of being an expert witness in a construction dispute, it’s not just about intelligence and experience. Instead it’s about preparation, understanding the audience, the rules, and the “central themes” of the dispute. Giving testimony is not a conversation, it has its own language and its own rhythm. Question, listen, pause, answer only what is asked, stop. Guessing, interrupting, and volunteering are wrong and dangerous in the narrow and artificial world of testimony, where every word is taken down, under oath, and scrutinized.

In this world, the questioner (lawyer) appears to be in control. That’s a lie, but even the
most experienced expert witness can fall victim to it. The expert witness has the right and the responsibility to take control. When it comes to meetings or other interactions, most people know that the way to take control of the situation is not by shouting the loudest, but by using clearly established techniques and rules. Being an expert witness is just a different kind of meeting, a way of communicating, and there are rules to be effective and be in control. The purpose of this article is to give you the rules and techniques to help you and your expert witness in a construction dispute.
Rule #1 – Instruct Your Expert To Take Their Time.
The first thing an expert witness should always remember to do is slow down and control the pace of the questioning. Lawyers often come with a strategy that involves rapid fire question and answer in the hopes that the witness will make a mistake that can be used to strengthen the opposing lawyer’s case. This tactic is easily counteracted by a witness slowing things down and taking time to think through an answer before giving it.
Rule #2 – Remind Your Expert They Are Making A Record.
It is important to remember that everything said as a witness is going to be recorded.
Every answer given in a deposition or in trial will be used by each side and can either you’re your case, or it can hurt it. It is crucial that witnesses remember to think through answers and to convey them as intended. This will be very difficult to master but is vital to the process.
Rule #3 – Tell The Truth.
While this initially seems obvious, it is often much harder to do than anticipated. This is
because telling the truth in an expert environment is a very narrow concept. Answers given in this setting should be restricted to only what the witness saw, heard or did.
Rule #4 – Be Polite.
The lawyer sitting across the table will frequently try to attack the credibility of a witness.
In order to do this, the lawyer may personally attack the witness. If a witness becomes hostile or defensive it is unlikely they will be thinking clearly and can say things that may be misconstrued. Stay focused and be polite. This will allow the witness to continue to control the pace and flow of the questioning to say what they intend to.
Rule #5 – Responding To Vague Questions.
It is imperative that a witness not respond to any questions they do not understand.
Don’t be afraid to speak up an say “I don’t understand your question.” If a question is vague or unclear, they must simply ask the lawyer to restate it or rephrase it. It is more important to take a little more time and truly understand the intent of the question, than guess or speculate when answering.
Rule #6 – If The Witness Does Not Remember.
Situations will arise for a witness where an attorney will ask a question the answer to
which the witness has no recall. Litigation often carries on for years and it can be difficult to recall certain details if questions are directed later on in the process. If a witness is presented with a question they do not remember, it is important to say “I don’t recall” and stop. Remember this is not a test; they are not being graded on how much they remember.
Rule #7 – Do Not Guess.
While in daily life it is appropriate to guess or infer particular things into a conversation, it is extremely dangerous to do this as a witness. A witness is only expected to answer to the best of their ability as to what was seen, heard or done. A witness should not take it upon them self to try and answer questions if they do not know the answer.
Rule #8 – Do Not Volunteer.
The rhythm of a witness should ultimately be “question, listen, pause, answer, stop.” The lawyer may ask broad questions in the hopes of discovering new information but it is critical the witness stick strictly to the question they are presented with.
Rule #9 – Be Careful With Documents.
Oftentimes lawyers will use documents to supplement their arguments or to ask specific
questions. It is important that the witness treat these documents mechanically and keep in mind documents are just written versions of what someone believed. There is a simple, unvarying protocol witnesses should follow when asked a question relating to a document: (a) ask to see the document. Don’t allow anyone to draw your expert witness into a debate with a document without the document being in front of you. (b) It is important the witness read it. The three issues that will pertain to any document are credibility, language and context. (c) The witness must ask for the question again. It is basic fairness, once the lawyer has read the document and picked a small piece to talk about, the witness be awarded the same time to review the document and answer.
Rule #10 – Use Your Lawyer.
A witness’s strongest ally will be his or her lawyer. You – as the lawyer – is there to object to any questions the witness shouldn’t be answering and are also aware of what the goals in the litigation process are. It is important the witness utilize their lawyer and ask questions if they are unsure of anything throughout the process. While the lawyer cannot answer the questions for the witness, you are there for support and will be the best tool to get the desired results.
Remember, these rules will not come easily. Being a good expert witness involves acting and speaking contrary to what is typical in the everyday world. The rules conflict with what your expert is used to and are often counter-intuitive. But, if they are practiced they can impose a degree of discipline and control on the legal process that makes it significantly more fair and productive. I hope that when you find yourself using an expert witness in a construction dispute these simple rules will help your case.
Kent B. Scott is a shareholder at the Salt Lake City based construction law firm of
Babcock Scott & Babcock, PC. Licensed in Utah, and all levels of Federal Court, including the U.S. Supreme Court, his practice focuses exclusively on the construction industry. He can be reached at kent @babcockscott.com or (801) 531-7000.