Subpoena

[asihi]

I'm looking for some advice and thought I'd get some perspective here. I'll try to make this very long story shorter.

I did a job for a client about 3 years ago. They bought a flip from a builder and after moving in they got some major flooding. To shorten the story, they are going after the builder, stating that the builder knew about the chronic flooding in the area.

Fast forward to July of this year, I received a deposition notice from the defendants attorney. I met with the guy and talked for about 15-20 minutes. No big deal.

That was the last I heard anything about this, until today. I got served with a subpoena by the defendants attorney. Along with the subpoena was a witness check that won't even pay for my parking in downtown Chicago.

I know I have to show up, but is this something I need to get my attorney involved in? I'm not sure what I can really add to this situation, plus it was 3 years ago. Other than what's in the report, I really don't remember much about this place. Thanks for your help.

Tony

[kurt]

That's how it always works. Everyone gets dragged in just in case. They always take stuff right to the courtroom door. It's not uncommon to have them settle the night before, or even the day of the trial. If it actually went trial, which is extremely unlikely (judges hate this stuff and attorneys know it), you'd probably not get called.

Ignoring it isn't in your best interest, but if you did, the likelihood of they defendant's attorney going after you for contempt is zilch.

After that, it's a subpoena. You're supposed to go in. And, your attorney doesn't need to be involved.

[John Kogel]

Too bad you couldn't get hired as an expert witness. Or maybe you could. Scott Patterson does a lot of expert work and he has a sample contract that he has posted in the past. You are going to testify that there was no visible evidence of flooding, so you are important to the defense. You should get paid for time lost. Maybe draw up a contract and have your lawyer send it to them?

I'm no authority on US law, tho, and I know is that a subpoena is not something to ignore.

[kurt]

They run that gambit precisely so they don't have to pay him as an expert witness.

[Jim Katen]

You're being brought in as a witness of fact, not as an expert witness.

About all that they can ask you is what happened that day and what you wrote in the report. Expect questions like, "Did you inspect this house on this day for this client?" and, "Is this a copy of the report that you wrote?" and, "Is this what you wrote about evidence of past flooding?" Basically, it's all about yes and no questions.

They should not be asking you about your opinions or about anything that requires special knowledge. You shouldn't answer questions like, "In your opinion, was this house constructed with proper provisions to guard against flooding?" Such a question should get an objection from the defendant's lawyer. If it doesn't you might just turn to the judge and say, "I'm sorry, your honor, but I'm not prepared to present expert testimony today. I would need to review all of my notes and photos and re-visit the site before I could give an opinion about that."

In the past, when this has happened to me, I've called up the lawyer and explained that I can probably be of more help to them as an expert witness. In your case, it sounds like he's already considered that and rejected it. But it might be worth a shot. As an expert, you could name your price.

[tim5055]

If they are not paying you as an expert, you want to limit anything you say to as few words as possible, yes and no work well. Unless the subpoena specifically is requiring you to bring records don't even bring a copy of your report to refresh your memory. As long as it is an honest answer, "I don't remember - This inspection was three years ago and I've inspected hundreds of houses in the meantime, they all run together" is a great answer.

Again, you have to give honest answers to specific questions, but you don't have to read anything into the questions and try to help anyone. Short - sweet and to the point!

[kurt]

I get these occasionally. I call the attorney and am very frank; I explain just what I'm going to provide, which is nothing outside of the report, which I don't remember, and if you bring a copy to the trial to refresh my memory, I'll say I need to go over my notes because the report isn't enough. I've told guys "Put me on and I'll make the judge hate you, or pay me as an expert".

It's Cook county. Push back.

[asihi]

Thanks to everyone that responded. Now that the holidays are over, I'll give them a call to see exactly what they want from me.

In a small very way, I'm kind of intrigued on how this process works. I sat on a jury about 10 years ago and it was interesting. Of course I wasn't in the defendants chair though.

[asihi]

I thought I'd give a little update. This trial, which was initially postponed is back on again. I got another subpoena to show up next Tuesday (3/15). I was subpoenaed by the defendants attorney. (I have not heard anything from my client, the plaintiff).

This attorney wants me to meet with him at his office an hour before the trial to go over the some of the stuff we're going to be talking about and then he said that I'll be in court about an hour. He also said that he's not looking for a freebie and wants me to bill him. Does this sound like an expert witness? If so, I haven't had a chance to do any research or re-visit the property. The only thing that I have to go on is my report, which was written 4 years ago.

I've never done this before and I'm kind of nervous and kind of intrigued as well. I'm curious to see how this system works. Heck I don't even know what to charge the guy. Any advice would be greatly appreciated.

[Bill Kibbel]

I've never done this before and I'm kind of nervous and kind of intrigued as well. I'm curious to see how this system works. Heck I don't even know what to charge the guy. Any advice would be greatly appreciated.

They may want you there just to be able to enter your report as an exhibit. "Is this your report that you prepared for the plaintiffs four years ago?" If he wants any *opinion* about any item or issue, whip out an expert witness agreement and ask for a retainer.

[Marc]

I thought I'd give a little update. This trial, which was initially postponed is back on again. I got another subpoena to show up next Tuesday (3/15). I was subpoenaed by the defendants attorney. (I have not heard anything from my client, the plaintiff).

This attorney wants me to meet with him at his office an hour before the trial to go over the some of the stuff we're going to be talking about and then he said that I'll be in court about an hour. He also said that he's not looking for a freebie and wants me to bill him. Does this sound like an expert witness? If so, I haven't had a chance to do any research or re-visit the property. The only thing that I have to go on is my report, which was written 4 years ago.

I've never done this before and I'm kind of nervous and kind of intrigued as well. I'm curious to see how this system works. Heck I don't even know what to charge the guy. Any advice would be greatly appreciated.

Sounds adversarial (in a civil way), like he's working on you.

If it was me, I'd turn down that one hour in private cause I'm not an expert witness. I'll just show up in court as ordered and confirm only what's in the report.

Even better, don't listen to me. I dunno nothin'.

Marc

[Jim Katen]

This attorney wants me to meet with him at his office an hour before the trial to go over the some of the stuff we're going to be talking about and then he said that I'll be in court about an hour. He also said that he's not looking for a freebie and wants me to bill him. Does this sound like an expert witness? If so, I haven't had a chance to do any research or re-visit the property. The only thing that I have to go on is my report, which was written 4 years ago.. .

An hour is not enough time. Ask him to send you a summary of the "stuff" he wants to go over so that you can review it in advance.

[Scottpat]

I thought I'd give a little update. This trial, which was initially postponed is back on again. I got another subpoena to show up next Tuesday (3/15). I was subpoenaed by the defendants attorney. (I have not heard anything from my client, the plaintiff).

This attorney wants me to meet with him at his office an hour before the trial to go over the some of the stuff we're going to be talking about and then he said that I'll be in court about an hour. He also said that he's not looking for a freebie and wants me to bill him. Does this sound like an expert witness? If so, I haven't had a chance to do any research or re-visit the property. The only thing that I have to go on is my report, which was written 4 years ago.

I've never done this before and I'm kind of nervous and kind of intrigued as well. I'm curious to see how this system works. Heck I don't even know what to charge the guy. Any advice would be greatly appreciated.

So has anyone hired you as an EW on this case? Even if you did the original inspection you are not beholding to anyone at this point. Ask the defense attorney if they want to hire you as an EW. Put it out on the table and let them tell you what they want. Charge the appropriate fees if you are hired as an EW. I have a 4 hour min. for depositions and court work.

[asihi]

So has anyone hired you as an EW on this case? Even if you did the original inspection you are not beholding to anyone at this point. Ask the defense attorney if they want to hire you as an EW. Put it out on the table and let them tell you what they want. Charge the appropriate fees if you are hired as an EW. I have a 4 hour min. for depositions and court work.

From what I understand, I am not an expert witness, though the attorney said that he wants me to write up a bill and give it to him after my testimony. I wasn't asked to do any type of research or re-visit the building. To be honest, I have know idea of how I can help his case or his client.

This thing happened so fast. The subpoena came on Wednesday night and the trial is starting on Monday. The attorney called me yesterday to give me my scheduled time for testimony. From what I was told, I'll be in and out of there within an hour. I'm not really sure what to expect.

[Scottpat]

So has anyone hired you as an EW on this case? Even if you did the original inspection you are not beholding to anyone at this point. Ask the defense attorney if they want to hire you as an EW. Put it out on the table and let them tell you what they want. Charge the appropriate fees if you are hired as an EW. I have a 4 hour min. for depositions and court work.

From what I understand, I am not an expert witness, though the attorney said that he wants me to write up a bill and give it to him after my testimony. I wasn't asked to do any type of research or re-visit the building. To be honest, I have know idea of how I can help his case or his client.

This thing happened so fast. The subpoena came on Wednesday night and the trial is starting on Monday. The attorney called me yesterday to give me my scheduled time for testimony. From what I was told, I'll be in and out of there within an hour. I'm not really sure what to expect.

If it was me, I would not go to the attorneys office prior to the trial. I would tell the attorney that you will be the custodian of record and that you will be at the listed time and date for the trial since you have not be hired as an expert or litigation consultant.

At the trial I would not offer any opinion but only identify that I did write the report. As said in an earlier post, if you are asked for an opinion or additional information that is not in your report you turn to the judge and state that you have not been hired as an expert. The judge at this point will most likely admonish the attorney and tell him to hire you as an expert or change the line of questioning.

[asihi]

So has anyone hired you as an EW on this case? Even if you did the original inspection you are not beholding to anyone at this point. Ask the defense attorney if they want to hire you as an EW. Put it out on the table and let them tell you what they want. Charge the appropriate fees if you are hired as an EW. I have a 4 hour min. for depositions and court work.

From what I understand, I am not an expert witness, though the attorney said that he wants me to write up a bill and give it to him after my testimony. I wasn't asked to do any type of research or re-visit the building. To be honest, I have know idea of how I can help his case or his client.

This thing happened so fast. The subpoena came on Wednesday night and the trial is starting on Monday. The attorney called me yesterday to give me my scheduled time for testimony. From what I was told, I'll be in and out of there within an hour. I'm not really sure what to expect.

If it was me, I would not go to the attorneys office prior to the trial. I would tell the attorney that you will be the custodian of record and that you will be at the listed time and date for the trial since you have not be hired as an expert or litigation consultant.

At the trial I would not offer any opinion but only identify that I did write the report. As said in an earlier post, if you are asked for an opinion or additional information that is not in your report you turn to the judge and state that you have not been hired as an expert. The judge at this point will most likely admonish the attorney and tell him to hire you as an expert or change the line of questioning.

Just so I'm clear on this, if this attorney wanted to hire me as an expert there would be some sort of contract spelling out the terms, correct?

Thanks for your help with this. This has definitely been a learning experience

[David Meiland]

I would stick with testifying as a witness of fact... yes or no answers, no interpretation or opinion, etc. I would not go to the attorney's office in advance, would not bring anything with me, and would do nothing to prepare. If an attorney shows you a report while on the stand, and you can identify it as yours, you state that it is. If s/he asks you to read a part of the report out loud and state that you wrote it, you do so.

If they want to hire you as an expert, that's a whole 'nother ball game. You need to come fully prepared with unassailable facts and opinions that can barely be disputed. You need to expect to be grilled hard by the other side. You need to charge a sizable amount to make it worthwhile, probably $125-150 per hour or more, possibly much more.

I've only been in a handful of these situations as expert but when being questioned I try hard to control the pace. When the attorney asks a question, I intentionally pause briefly before answering, and speak slowly. The other side's goal is to rush you and get you wrong-footed so your testimony appears weak. They may ask ignorant questions to force you into lengthy explanations trying to correct them. They may intentionally mangle what you just said in the next question and try to force you to accept their rewording. It can be really challenging, especially since you don't do it every day, and they do.

[Scottpat]

So has anyone hired you as an EW on this case? Even if you did the original inspection you are not beholding to anyone at this point. Ask the defense attorney if they want to hire you as an EW. Put it out on the table and let them tell you what they want. Charge the appropriate fees if you are hired as an EW. I have a 4 hour min. for depositions and court work.

From what I understand, I am not an expert witness, though the attorney said that he wants me to write up a bill and give it to him after my testimony. I wasn't asked to do any type of research or re-visit the building. To be honest, I have know idea of how I can help his case or his client.

This thing happened so fast. The subpoena came on Wednesday night and the trial is starting on Monday. The attorney called me yesterday to give me my scheduled time for testimony. From what I was told, I'll be in and out of there within an hour. I'm not really sure what to expect.

If it was me, I would not go to the attorneys office prior to the trial. I would tell the attorney that you will be the custodian of record and that you will be at the listed time and date for the trial since you have not be hired as an expert or litigation consultant.

At the trial I would not offer any opinion but only identify that I did write the report. As said in an earlier post, if you are asked for an opinion or additional information that is not in your report you turn to the judge and state that you have not been hired as an expert. The judge at this point will most likely admonish the attorney and tell him to hire you as an expert or change the line of questioning.

Just so I'm clear on this, if this attorney wanted to hire me as an expert there would be some sort of contract spelling out the terms, correct?

Thanks for your help with this. This has definitely been a learning experience

Yes, you should have a contract that spells out your part in the process. Send me an email and I will send you one that has worked well for me for several years. It's not for everyone, you need to have an even temper and most of all you need to be able to understand that it is only a job and you can't take anything personally. Most EW's are paid very well for the work. Most EW's in our profession have fees in the $200 to $300 range, per hour.

scott@traceinspections.com

[asihi]

So has anyone hired you as an EW on this case? Even if you did the original inspection you are not beholding to anyone at this point. Ask the defense attorney if they want to hire you as an EW. Put it out on the table and let them tell you what they want. Charge the appropriate fees if you are hired as an EW. I have a 4 hour min. for depositions and court work.

From what I understand, I am not an expert witness, though the attorney said that he wants me to write up a bill and give it to him after my testimony. I wasn't asked to do any type of research or re-visit the building. To be honest, I have know idea of how I can help his case or his client.

This thing happened so fast. The subpoena came on Wednesday night and the trial is starting on Monday. The attorney called me yesterday to give me my scheduled time for testimony. From what I was told, I'll be in and out of there within an hour. I'm not really sure what to expect.

If it was me, I would not go to the attorneys office prior to the trial. I would tell the attorney that you will be the custodian of record and that you will be at the listed time and date for the trial since you have not be hired as an expert or litigation consultant.

At the trial I would not offer any opinion but only identify that I did write the report. As said in an earlier post, if you are asked for an opinion or additional information that is not in your report you turn to the judge and state that you have not been hired as an expert. The judge at this point will most likely admonish the attorney and tell him to hire you as an expert or change the line of questioning.

Just so I'm clear on this, if this attorney wanted to hire me as an expert there would be some sort of contract spelling out the terms, correct?

Thanks for your help with this. This has definitely been a learning experience

Yes, you should have a contract that spells out your part in the process. Send me an email and I will send you one that has worked well for me for several years. It's not for everyone, you need to have an even temper and most of all you need to be able to understand that it is only a job and you can't take anything personally. Most EW's are paid very well for the work. Most EW's in our profession have fees in the $200 to $300 range, per hour.

scott@traceinspections.com

Thanks for the offer. I will send you an email. By the way, the trial starts tomorrow and I'm scheduled to testify on Tuesday. Even if I wanted to prepare or do some research, I would not have any time.

Another stupid question; I was subpoenaed to testify. I'm assuming that even if they ask me to be an expert witness, I do not have accept. Is that correct? The way that this whole thing is being pushed together, I'd rather just testify and get out of there. Thanks again for your help.

Tony

[kurt]

Don't be surprised if it's settled at the courthouse door. Every one of these I've ever gotten called for settled at the last minute.

[Jerry Simon]

Another stupid question; I was subpoenaed to testify. I'm assuming that even if they ask me to be an expert witness, I do not have accept. Is that correct?

Well, heck no. I mean, first off, you'd at least have to be an expert. . .

[Erby]

Last one I did, I showed up at the courthouse, handed over a copy of the report, the attorneys all disappeared into the back for about an hour while we stood around chatting. When they came out, it was settled and we left. It was a nice day to go fishing. Later I deducted my rather sizable fee from the retainer and returned the rest to the attorney.

As Scott said:

"It's not for everyone, you need to have an even temper and most of all you need to be able to understand that it is only a job and you can't take anything personally. Most EW's are paid very well for the work. Most EW's in our profession have fees in the $200 to $300 range, per hour."

[Les]

Most inspectors make poor experts in any litigation. Takes a particular kind of person and lots of patience and confidence. I have 4-5 files open most of the time. Most settle quickly and without being in court. I have been doing this 25yrs and have never had to explain my report or any report from my company. Just fortunate?

[asihi]

Thanks to everyone that responded. Everyone except Jerry. All of this stuff has been very helpful. Again, with the exception of Jerry (you suck).

Tony