Expert Witness

[Jim Baird]

I have just begun my first expert witness experience.

With guidance provided by the esteemed Scottpat and the late Norm Sage, I cobbled together an EW agreement that the lawyer and client signed on to.

Client responded to my request for retainer by issuing 1.5 times amount requested.

Comments and well wishes welcome.

[Jim Katen]

Originally posted by Jim Baird

I have just begun my first expert witness experience.

With guidance provided by the esteemed Scottpat and the late Norm Sage, I cobbled together an EW agreement that the lawyer and client signed on to.

Client responded to my request for retainer by issuing 1.5 times amount requested.

Comments and well wishes welcome.

Remember that you're not an advocate for your client, you're an expert for the court.

You might find that your investigation doesn't support your client's position. If so, don't be afraid to say so and, if you're comfortable with it, advise them to settle.

If you get to deposition or trial, take lots of time to think about the questions and your responses. Every time I've spoken hastily, I've regretted it.

- Jim Katen, Oregon

[Scottpat]

As Jim said, your finding might not go hand in hand with your clients wishes. Their attorney on the other hand will be very thankful. I can't tell you how many times I have had to tell an attorney that they needed to settle because they would have a very difficult if not impossible time fighting the issue in court.

Unfortunately when trying to defend home inspectors and after talking with other folks who do EW work for/against home inspectors across the country, a vast majority of the time the attorney is being told that they need to settle and cut their losses. I can't help to think that this goes hand in hand with the large number of new folks entering the profession over the past 5 or so years.

[Jim Baird]

Thanks for the replies.

I will meet with attorney and client tomorrow on site.

This client is not typical by any means, and I will find out, hopefully, tomorrow just what he is after.

He lives on vast acreage, has a chicken farm, and told me once he has never borrowed a dime in his life.

I did three inspections for him in '06, and he is still sore. He was living in a double-wide next to the "dream-house". The lawyer is new to the client too, so we will both be learning. The area is very rural, with no inspection at local level, though state codes apply even if no local enforcement.

Scott I used your contract and Norm's as models, which both you guys shared with me in '02 or '03, when I was dragged to the edge of the courthouse steps by another client.

It should go without saying that this forum has been and remains a great resource.

[Richard Moore]

"I did three inspections for him in '06, and he is still sore."

Jim, please note that I'm not questioning your ethics in the slightest, and just playing Devil's advocate a bit. Couldn't that be percieved and/or used by the opposing counsel to indicate a business relationship and bring into question your objectivity as an unbiased expert witness? Or is your "testimony" directly related to those inspections?

I'd also like to ask what he was sore about, but it's probably best not to have that on record here.

[Jim Baird]

Richard,

The reason for repeat visits was that the house was under construction, and my returns were to check on corrections. It is curious, in my thinking, that while my role as inspector is to advocate for my client, I have to stand off as a witness.

I trust his attorney will help me draw and toe that line.

[Scottpat]

With EW work it is always best to have no prior knowledge or relationships with the defendant or plaintiff, sometimes it can't be helped and in those cases it is paramount to disclose any and all relationships. Now if you are just performing as a litigation consultant, then this is not that big of an issue.

Remember that you are not an EW until you are declared as such by the court.

Jim, I'm glad that you have been able to use those agreements. Norm helped me a great deal over the years. That agreement was developed by him and Jerry Peck and then I added to it with some additional input and help from Don Lovering and Scott Warga. Needless to say some of the better EW folks have helped on it.

I still keep a PM that Norm sent me on TIJ. He was in love with a cheesecake that I made for his wife and him, it was a Thank You gift for his help. He lost the recipe after he moved and wanted me to send it to him again.

[Les]

Had an unusual thing happen this week during a trial. I had been recognized by that court several times as an expert, but the defendant had subpoenaed me as a material witness at 15.00 per day. I figger I am pretty sharp and can nullify the subpoena - wrong. Worked out ok because it involved two other home inspectors and one was being an ass and the judge knew it. So the judge qualifies me as an expert for some testimony and as a material witness for another session of testimony. Pretty clever and I got a good exercise in fact testimony vs opinion testimony. Attys went nuts. My side won as an expert and lost as a material witness! Made more than $15.00 too.