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Gibsonguy

First Time Going To Court

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Hi Guys,

I'm being subpoenaed to go to court as an expert witness for a specialized balcony inspection I did this year. The bozo contractor covered the balcony with tar paper, as it was over an existing garage. He cut the metal hand railings so he could install a flashing (like a parapet wall) and left it as is... Overall, it was a good roofing job.The thing is, he did not slope it at all towards the scupper, and he didn't install a drain so the balcony filled up like a swimming pool when it rained. It was just plain wrong.

I have been inspecting now for 4 years, and am a member of AIBQ (CAHPI in Quebec)

Can I charge for appearing in court? Or am I being forced to appear? I'm sure the legislation in the US is different from here in Canada, but I don't want to waste 2 days of my life, if I don't have to. The client called me last week out of courtesy, before his lawyer got a hold of me. I told the client that I charge $75 hour to go to court.

Not sure how to proceed with this, the court date is in mid January. Any ideas?

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Send him an a letter informing him that you'll be invoicing him per the previous conversation. If he refuses to pay, take him to small claims court and put your case before a judge.

ONE TEAM - ONE FIGHT!!!

Mike

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You have been subpoenaed. That does not sound like you have been hired to be an expert witness. I think you need to talk to your client and his lawyer as to what their intentions are.

You have no choice but to appear. As a witness, maybe it's called witness to the fact, you can just read from your inspection report. If someone asks you for your opinion, then you are entitled to payment.

Just a witness? You are just doing your civil duty for free. You can ask them to call you first, so that 2 or 3 days don't get frittered away out in the hall.

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The attorney said I will be receiving a subpoena shortly. And that I am to have my credentials ready as I am appearing as an expert witness, for my client who is suing his contractor for damages after the contractor refused to come and fix the problems. They had to hire another contractor to remedy the problem. The amount is more than the small claims court cap (not even sure what that is)

The attorney said I will most likely testify on the first day of the hearings.

Thanks for your input guys. This is uncharted territory for me

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I was subpoenaed in a dispute between my client (buyer) and seller of a restaurant. The summons arrived two years after the inspection.

My inspection noted many shortcomings in the property and referrals to specialists with respect to cooking equipment, walk-in freezer and on and on. Property also had severe roof problems (flat roof).

Lo and behold, after close/sale of property, there was a huge/long rainstorm and a portion of the roof caved in causing damage. Insurance paid for everything so (supposedly) no harm no foul.

Well, buyer (my client) decided they wanted to get insurance or seller to pay for additional remodeling that was not part of the insurance claim. So they (buyer) started to muddy the waters and filed a lawsuit seeking $$.

Goes without saying I was nervous and after my first visit with the buyer's attorneys I had some, but not much relief. Both sides had called in high-dollar companies for their professional opinions as to all the circumstances. My report was sort of in the middle of the whole she-bang ... but none of the reports I was able to see (I did see them all) took any exception to what I did/reported on. (Whew)

Anyway ... yes, I was called as an 'expert witness' (sort of), but it was termed as a 'fact witness' and thus being I was on my dime and not allowed to charge anyone for my time.

This suit went on for yet another two years and I had to contact my attorney to review all the documents to ensure I wasn't being set up. That cost me $$ that I could not recover as well.

Anyway ... bottom line is that 1/2-day before the supposed actual court session (the court data had been set/cancelled/reset 5 times over 2-1/2 years) the buyer's attorney called and said they had settled out of court.

BTW - I was never contacted by the buyer (my client) about this and never once talked with them after I went over all my findings that were in my report at the time of the inspection.

I honestly don't like getting calls like that or knocks on my front door from the local sheriff with a subpoena. Thank goodness I've only had one and that is enough.

.

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If he subpoenaed you, you are not obligated to be an expert witness. You are a witness to a fact and/or custodian of records.

"Yes, this is my report that I prepared on xx/xx/xx." would be the only thing they would get from me, if they did not sign my expert witness agreement and pay the rate listed for court appearance. Experienced expert witnesses here, qualified by the courts get 3-4 times what you suggested for an hourly rate.

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What Bill said. And if you ARE brought in as an expert witness, make sure you are paid a retainer in advance. ALWAYS get paid in advance for EW work.

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$75/hour is painfully low for the hassle of participating in a lawsuit. I would try to double that. If your experience is like mine, you will be asked many questions that vary slightly, and your responses compared, looking for inconsistencies. Listen carefully and ask them to repeat if you're the slightest bit unclear what they mean. Think even more carefully about your answers, give them slowly, and add nothing extra. It is very different than normal conversation, and very taxing. You can sit there for hours on the hot seat.

It's hard to see how you'll be considered a witness to fact. The opposing side will want to know if, in your opinion, there is any possible alternate interpretation of anything. As soon as that happens you're an expert. If I had any question about that I would ask the judge to clarify my role right away.

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I have a friend who's a surgeon, and I asked him about this sort of thing a while ago. He said that no doctor would ever have to appear in court or at a deposition without charging a fair (but hefty) consulting fee, even if they're just testifying to facts. I don't see why your situation is any different. To Bill's point about just authenticating your report, maybe some sort of affidavit would suffice.

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My hourly fee for court time is 3 times your fee with a four hour minimum. You need to find out what the laws are in your area that cover "witness of fact" and " expert witness". As Bill pointed out if you are a "witness of fact" you just answer questions about the report you wrote and you never offer an opinion or expand beyond the report. Once you do this you are entering the "Expert" area and you should be paid for your opinion.

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Ian,

It is really easy to call the attorney and ask. Legal stuff, here in the states, is quite different than in Canada. I think all inspectors must be prepared to be a witness of fact and very few inspectors should be expert witnesses.

I know inspectors that have been doing this inspection work for decades and are really poor at being an expert witness. Expert work is lots of fun, very stressful and not something you should do until you are experienced and beyond reproach with your skills. Some of the posters above are very skilled at being an expert, but they will surely tell you that it can be "not much fun."

You can't just charge what ever you want, you should have a published fee schedule.

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Ian,

Some of the posters above are very skilled at being an expert, but they will surely tell you that it can be "not much fun."

I have read several good books sitting out in the courthouse hallway over the years!

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The couple times I've done it, it's been entirely unpleasant. Your guy makes you look brilliant and their guy makes you look like an idiot. The good ones make you look like a total moron. It's amazing how they can take facts that any of us would agree upon, and turn them around into something else. You go in confident of your knowledge and walk out thinking you're dumber than a bag of door knobs.

On the plus side, both times my side "won", so at least I didn't continue thinking I was a door knob.

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The couple times I've done it, it's been entirely unpleasant. Your guy makes you look brilliant and their guy makes you look like an idiot. The good ones make you look like a total moron. It's amazing how they can take facts that any of us would agree upon, and turn them around into something else. You go in confident of your knowledge and walk out thinking you're dumber than a bag of door knobs.

On the plus side, both times my side "won", so at least I didn't continue thinking I was a door knob.

This is so true! I had my ego (what little I have) handed to me on a silver platter last year on case because I went to four universities before I finished. The attorney made it sound like I could never complete anything I start and that I was not worthy to even park cars at a junk yard because I had a degree that is unrelated to my profession. It took the judge to step in and tell the attorney that his son has a law degree and owns a B&B in Gatlinburg TN! That kind of ended that line of questioning....

The best thing that came out of this case besides my client winning, is that I now know how to handle this type of question and situation if it comes up again.

EW work is not for everyone, you have to be willing to be humble and humiliated from time to time. What makes it worth it besides the money is that your knowledge is helping somebody.

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I enjoy the work even 'tho you know it can be quite silly at times. I have had my butt handed to me several times, usually during discovery.

Been held in contempt twice; expressing my opinion regarding the value of consortium and using the F word. $500 and $50 respectively.

Been questioned about an argument I had with an ASHI conference presenter in 1994 during a trial in 2006! A good atty is a worthy opponent.

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