From: Roger Turk <73527.1356(--nospam--at)compuserve.com>
Date: Thu, 7 Mar 2002 14:20:34 -0500
It sounds as if you were hired to nit-pick, i.e., be the attorney's "hidden
expert," who is hired to look over depositions and pick out the places where
there might be the slightest deviation from the code. As a "hidden expert,"
you will not be disclosed to the other parties, nor will you be deposed.
To testify as to the "truth" one cannot be concerned about whether anybody
had insurance or not, or how much, or what has been paid in the past. One
must study the engineering facts, and come up with an unbiased, impartial
report. In fact, here in Arizona, mentioning "insurance" during a trial can
result in a mistrial as it is said to bias the jury.
Testimony given during a deposition is given under oath, and is the same as
giving the testimony in court. The difference is that in a deposition there
is no judge to rule on objections, and objections are made so that, if during
the trial, some testimony that was objected to is offered into evidence the
trial judge can rule on it. Typically, in my experience, objections during
depositions goes something like this, "Objection! Calls for speculation. Go
ahead and answer it if you can."
Typically during depositions, the opposing parties want to find out exactly
what the experts know, *and* how they will present themselves before a jury.
I have never had any of my testimony curtailed during a deposition, although
my client's attorneys have advised me before the deposition to only answer
the question and not offer anything additional. If the EOR's attorney
objected to responses that the EOR made during a deposition, I would say that
the attorney felt that the EOR was offering additional and possibly damaging
information that was not asked for.
Several years ago, I was hired by a building owner to investigate the
overturning of a masonry patio screen wall that fell on the leg of a teenage
girl. I prepared my report and forwarded it on to my client. Some time
later, my client's attorney sent me copies of depositions of two engineers
hired by the injured party to review, one was by a traffic engineer and the
other by a structural engineer. I told my client's attorney that the
deposition of the traffic engineer showed that he didn't know what he was
talking about, while the deposition of the structural engineer essentially
said the same thing that I had in my report. When the attorney asked me to
go thru the structural engineer's report word by word and tell him everywhere
the SE made an incorrect statement, I fired the attorney. I then learned
that neither I nor my report had been disclosed to the other parties and
that the attorney had kept me "hidden," as provided for in the Arizona
Revised Statutes or Rules of Civil Procedure.
A. Roger Turk, P.E.(Structural)
Bill Polhemus wrote:
. > NOTE: By "shyster" I was referring to the attorney for the OWNER. If you
. > read the deposition (the deponent was not the EOR, but someone hired by
. > the EOR to do a peer-review after the problem had surfaced), you'd
. > understand what I mean. The guy is SO arrogant and petty. He brow-beats
. > the poor guy every time he says "because that is my professional judgement
. > based upon 38 years of practice." The "shyster" continually makes snide
. > remarks
. > about that "38 years" comment. Such as "so you don't have any rational
. > reason for deciding this other than this alleged '38 years'?" He says
. > "Objection, not responsive to my question" whenever the engineer tries to
. > explain his answers: "If I want any more than what I've asked you, I'll
. > tell you, is that clear?"
. > * * *
. > I don't think some of you understand what I'm getting at here. As I said,
. > I can't authoritatively (at this point) state an opinion. I am doing a
. > bit of "brain storming" (what if *this*? Or how about *that*?) to try to
. > zero in on my opinion.
. > Believe me, I have UTMOST sympathy for this EOR. Do you think I don't
. > worry about "what if it happened to me?" I didn't used to be so concerned,
. > until I hung out my own shingle. Suddenly the burden is SQUARELY on my
. > shoulders. I HAVE to think about it.
. > Consider this, as well: Another big payout by this guy's E&O insurance
. > means one more brick in the wall. All of us who have to pay premiums for
. > E&O are affected by the litigious nature of our work, unfortunately. We
. > recently discussed in one of my committee meetings, the fact that
. > insurance premiums are going up this year for ALL who carry E&O, solely
. > because there has been a marked increase in the past few years in payouts
. > for claims.
. > So please don't surreptitiously construe that I'm trying to "get the
. > goods" on this guy. I'm not. I'm trying to arrive at something
. > approaching "the truth."
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