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RE: META-DISCUSSION: How Participation on SEAINT Can Hurt You...Bill Please Read

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Bill,
I sent this privately because I was not sure if you would pick it out on the
SEAINT list. This same thing happened to me, and we lost the case, but I
know it was not because I was considered any less of an expert that then
other side. Here is what happened:
I was hired to review the work that the owner of a pool did who claimed that
the original builder (my client) was deficient on. My client was a GC who
hired a pool company that was no longer in business and the ten year statute
for construction defects was just about up.
The new owner of the home hired a contractor to remove the existing plaster
(structural) finish of the pool and to replace it. This contractor ended up
taking a jackhammer to the pool and removed not only the 1-inch of plaster
(or less) by nearly two to three inches of the Gunnite and in some cases
exposing the steel.
I needed some information on Gunnite and on pool design and sought the help
of engineers on the List in order to find an expert in the business that
might be able to help me answer some questions I had. I knew that the owners
expert was on the list and, in fact, this is a small town that the owner
engineer happened to be a friend of mine.
I noticed that she made some serious errors in her calculations that
ultimately reflected her opinions in a report - for example she claimed from
the testing agency that the thickness of the walls of the pool did not
exceed three to four inches when the industry standard was six.
Her mistake was that the testing agency, after pulling cores, trims off the
ends in order to reduce the diameter to height ratio and to simplify their
crushing tests and shear tests. 
Furthermore, I found out later (after we lost and the client was ordered to
pay the new owner some sum of money not disclosed to me) that my friend
never really saw the pool and that the owner, who was a lawyer and pleading
the case himself, was cheap and limited the amount of work she was allowed
to do.
I sought other information including some issues about the code compliance
issues for pools from Scott Maxwell.

At the arbitration, this was all brought up - none of which did I deny. The
other lawyer tried to disqualify me as a witness because he claimed that
while I designed Gunnite structures for the reinforcement of buildings, I
never designed a pool or did so only once or twice while his engineer
designed 90% of the pools in the area. It was true that his client designs
most of the pools but this is because a contractor can walk in, plop down
$150.00 and receive a Xerox copy of a standard calculation for a six inch
pool that is used over and over again as well as some generic drawings and
take them to the city for a permit issued.

There were also dozens of pictures and the owner/lawyer tried to prove that
it was impossible for me to tell how thick the pieces were that the
contractor jack hammered away. I stuck to my guns and indicated that if the
steel was exposed and that the convention was to have two to three inches of
Gunnite to water and Gunnite to soil then the cage was in place in the
center of the wall and knowing that the cores were cut down, the owner
removed close to three inches in spots to expose the steel.

Bill, the problem that led to a favorable decision for the owner is that the
arbitrator did not understand the technical information provided him by me.
As much as I attempted to keep it simple and to explain the facts, he simply
could not comprehend what I was testifying. 

Later when I discussed with my friend who designed the fix, she agreed to
all including not knowing that the testing lab trimmed their samples. This
would have made her write her report with a different opinion. 

The GC I was defending could have appealed the decision but felt it was
better to let his insurance company pay the claim. I admit that my ego was
hurt, but I did what I had to do and I did not take any of it personally.
During the depositions, the owner/lawyer tried to get me to lose my temper
and make statements that he could spin. I was much better than he was on
this and had been warned that if I felt I was about to get nasty, I was to
ask for a break or suggest that I needed to consult with the attorney on my
side. 

I don't get rattled here. The facts are the facts and nothing the other side
can say or do should affect the decision or professional opinion you yield.
This is what a good expert will do whether it is in deposition, arbitration
or in front of a jury. There are societies that help engineers who wish to
become expert witnesses. If I can find the material that another friend who
spent 30 years as a high priced expert gave me, I'll e-mail it to you in PDF
format. 

I might not have had the look, I might not have made the arbitrator
understand - however, he did not disqualify me as an expert but he also did
not see the damage that the owner did that should have make his decision in
favor of the GC. 

Finally, if my client is at fault, I will inform his attorney and attempt to
back out of the case. Anything you put in writing that is not specifically
used during discovery can be the property of the attorney and is not allowed
to be disclosed. However, whatever you write in public - on the List or
whatever, can be obtained. Not only can it be found, it is your
responsibility as and expert to disclose the e-mails that you posted since
it is part of the discovery that belongs to both sides. Don't be ashamed at
seeking help. My argument against the other lawyer was that the SEAINT
Listservices is intended for peer-to-peer discussions and to seek experts
that can offer advice and help or simply to review your opinions and to
debate or offer other sides. It is fact checkers that can help you solidify
your opinions in court rather than show you as less than an expert. It all
depends on how you testify and explain the use of the listservices as a
reference the same as you would if you sought the use of a technical book to
base your conclusions.

You win some and you lose some. As long as the pot of gold exists, it will
always be cheaper to settle than to litigate. I find the work as an expert
to be very rewarding as it offers me the opportunity to dig into a project
and find out literally everything I can - including the mistaken assumptions
on the other side.

Nothing on the SEAINT List can hurt you unless you admit to being ignorant
of the code or method of design. However, if writing with a case in mind,
keep it simple and straight forward. You want to look for information to
justify the decisions you believe to be true but need to seek references
that may have additional information that you need to if there is any
question as to the legitimacy of the conclusions you have drawn. Never go
into court or arbitration unprepared, and this List is an excellent
reference tool. Use it as one and don't let another attorney spin it to
suggest your lack of experience or knowledge.

Good luck,
Dennis

-----Original Message-----
From: Bill Polhemus [mailto:bill(--nospam--at)polhemus.cc] 
Sent: Wednesday, November 10, 2004 1:02 PM
To: seaint(--nospam--at)seaint.org
Subject: META-DISCUSSION: How Participation on SEAINT Can Hurt You

I've been meaning to mention this here for some time, but have been 
quite busy.

Not long ago I had the distinct privilege of participating in my first 
actual "trial" as an expert witness. Heretofore I have been fortunate in 
my forensic engineering work to not have to deal much directly with 
attorneys. Typically, my work has been for owners who simply need 
information on how to solve a problem. I have done a couple of 
depositions, and lots of reports and other correspondence but this is 
the first time in the ten years I've been doing this sort of work that 
things actually went to "court."

I'm using quotes because in this case it was a "binding arbitration" 
rather than a jury trial. However, aside from the fact that you aren't 
testifying in front of a jury made up of John and Jane Q. Public, but 
rather a panel consisting of two engineers and another attorney, 
everything else is the same. You call witnesses, are sworn in, and are 
direct- and cross-examined.

When I first got involved with the case, it was simply to provide some 
engineering analysis and advise the client's attorney about engineering 
issues. Many of those issues dealt with interpretations of the building 
code as well as some esoteric analysis topics. At that time, nearly two 
years ago, I came onto SEAINT for some consultation, gathering opinions 
and direction. Of course, at that time it didn't occur to me that this 
could actually come back to haunt me.

As it happens, thanks to GOOGLE, everything you do online is public 
knowledge, and the plaintiff's attorney apparently has done quite a bit 
of that kind of research.

I should mention here, parenthetically, that what you see on the movies 
and what you see in real life are exactly opposite. That is, if you see 
a movie about civil torts--one such that comes to mind that I have seen 
is an adaptation of John Grisham's "The Rainmaker"--they always depict 
the plaintiff's side made up of a couple of scruffy lawyers living out 
of their car, and the insurance company's side is a huge lawfirm with 
tropical fish tanks in the lobby wall and scads of lawyers and paralegals.

It's actually the other way around. The insurance companies are too 
cost-conscious to shell out for an army of lawyers. It's usually the 
plaintiff's attorneys--by virtue of the time-honored rite of 
"contingency fee"--that has the army and the fish tanks in the wall.

Anyway, back to my main point: The plaintiff's lawyer was able to make 
it appear that, since I "had to ask" questions of SEAINT, I obviously 
don't know what I am doing. Oh, and didn't I say in my sworn testimony 
earlier, that I had not spoken to anyone about this case? Etc.

It didn't help that this particular gentleman could serve as the model 
for the classic Texas trial attorney, complete with sneering asides, 
asinine editorializations and lots of yelling and hitting the top of the 
table. Anyway, not having foreseen any of this I was not able to answer 
very clearly--wasn't even sure what he was trying to get at anyway--and 
probably did very poorly in that part of my testimony.

In the end, we lost a case we should have won, because we were, in my 
opinion, completely in the right. I wonder how much effect was had by my 
being blind-sided by this attorney, and "confronted" with the "damning" 
evidence of my obvious ineptitude in the form of actually having to ask 
questions of other engineers.

I thought I'd mention this because I am aware of a few of us who deal 
with legal matters, and if this has never come up before, be advised 
that by my own example, it could.

Beware our legal brethren. They're out to get you.

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