Testifying as a Percipient Witness in an Arbitration or Lawsuit
Architects and Engineers Involved in the Legal System
Arthur O'Leary, FAIA, MRIAI
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Receiving the Subpoena
Your heart sinks when you are handed a subpoena commanding you to appear as a witness in a legal proceeding. It could be to attend a deposition, an arbitration hearing, or a courtroom trial before a judge. You are not being sued but are being called to testify because you are involved in some way or know something about the facts underlying the situation giving rise to a difference of opinion between two other parties.
It is most likely, but not always, a dispute between a general contractor and the owner, your client. You designed the building and prepared all the contract documents that are now being carefully dissected and examined, as they define the rights and obligations of the contractor and owner. If you used the standard AIA contract forms for your own agreement (Note 1) and for the construction contract (Note 2) and also included the AIA general conditions (Note 3), then AIA’s dispute resolution procedures will be in effect. All of the AIA documents provide for arbitration administrated by the American Arbitration Association.
A question that immediately springs to mind: Do I really have to go? The short answer is Yes. Subpoenas carry the weight of legal compulsion. Your failure to appear could result in a court order that cannot be ignored.
A Deposition Hearing
Your subpoena may be to attend and testify in a deposition. This is an informal hearing, often held in a lawyer’s office, attended by the lawyers representing each party and sometimes by the litigants themselves. You will be required to answer the questions asked by each of the lawyers. The questions and your answers will be recorded by a court reporter. Later a verbatim transcript will be prepared, in the form of a bound booklet that looks like a set of construction specifications. It will be in question and answer format, just as in the hearing. You will be asked to review the transcript, correct it if necessary, and sign it. Should you decline to sign it, it probably will be used anyway, but without the benefit of your corrections.
A deposition is part of the discovery process used by lawyers in researching the factual situation underlying the dispute. Although the procedure appears informal and no judge is present to conduct the hearing and rule on objections, you will be testifying, usually under oath, under the penalty of perjury for false statements. If your later testimony at an arbitration hearing or a court trial differs in any material respect from your deposition, you will have to reconcile the discrepancies.
Compensation for Your Time
Another question will undoubtedly occur to you: Will I be paid for my time? This question must be settled before the deposition. Otherwise you could be out of luck. Usually the party who benefits by your testimony is willing to pay your normal consultation fees rather than incur your ill will. In some states, there is provision in the law for nominal (normally inadequate) witness fees and travel reimbursement.
According to B141-1997, your client is obligated, under the provisions of Paragraph 1.3.3 Change in Services, to pay you for any services required in connection with legal proceedings. (Note 4)
Upon receiving the subpoena you should get in touch with the lawyer who has caused it to be issued to find out what is expected of you and what documents you should have with you.
If the deposition happens to be scheduled for an inconvenient time you may be able to negotiate a mutually acceptable date and hour. If you feel that there is any legal threat to your own position, or if you are not sure, it would be advisable to contact your own lawyer or professional liability insurer. Remember, neither your client’s attorney nor the contractor’s is representing you and either might have a conflict of interest in advising you.
An Arbitration Hearing
Arbitration hearings are not usually as formally structured as court trials before judges. However, arbitrators can conduct the hearing as formally or casually as they wish. Witnesses are generally required to testify under oath and swear to tell the whole and complete truth. You will be questioned by the lawyer who requested or compelled your presence and then you will be cross-examined by the other lawyers present, and finally by the arbitrators.
Arbitration panels are made up of experts in the field of the dispute. Construction matters are usually heard by arbitrators who are also construction industry attorneys, architects, engineers, or contractors. The panel could also consist of other relevant experts when the dispute has a significant component involving insurance, accounting, real estate, finance, or other specialized matters.
In the Courtroom
Construction industry trials are held both with and without juries. The hearing is presided over by a judge who may or may not know anything about architecture or construction. The judge’s primary function is to conduct the proceeding in an orderly and fair manner, make rulings on all motions of counsel, and to explain to the jury its duties and applicable law. When there is no jury the judge single-handedly decides the case and renders the verdict.
You will always be sworn in as a witness in court. You will be seated in the witness box next to the judge’s bench, in good view of the jury if there is one. You will be questioned by the lawyer who called you, cross-examined by the other lawyers present, and occasionally by the judge, particularly if there is no jury.
Regardless of the forum, your role as a percipient witness (Note 5) is to answer the questions asked of you completely and truthfully. You must listen carefully to each question and make sure you completely understand it before undertaking your answer. Do not base your answer on what you think the questioner is trying to get at. If the question is inartfully worded or unanswerable, ask that it be explained or rephrased. If the question is compound, that is, two or more questions in one, ask that they be separated and asked one at a time. If the questioner uses words or phrases unfamiliar to you, ask that they be defined or explained. Some lawyers are skilful at phrasing technical questions and some are not.
You are not required or expected to know everything about everything. So, if a question is asked that you do not know the answer to, just swallow your pride and say, I do not know. If you do not remember, the truthful answer is, I do not remember.
You will suffer a severe loss of credibility if you equivocate, stall, or hedge on your answers. As soon as you have a complete understanding of a particular question, and have sufficiently thought it through, then answer it forthrightly and truthfully. Do not wander aimlessly beyond the precise scope of the question asked.
Many questions can be answered simply Yes or No. You do not have to explain the answer unless you are asked. However, if a Yes or No is demanded to a question that you feel must be explained (Note 6), then try to get permission for an explanation before answering. If the opposing lawyer feels that an explanation is necessary or would be enlightening, then undoubtedly that question will be asked of you during your re-examination.
If you are asked for an estimate of something, do not guess. If you cannot base evaluations on rational estimates of quantities or valid unit prices, it would be better to decline to speculate. If you do undertake to provide an estimate, you should be prepared to explain your premises and assumptions.
If you are asked questions relating to documents such as specifications, invoices, correspondence, reports, or drawings, insist on having the documents in front of you for reference before answering. You are not required to perform spectacular feats as a memory expert.
Another strike against your credibility and objectivity occurs when you persist in advocating positions or appear excessively defensive. It is better to leave the argument and defence to the lawyers, as that is what they are trained to do.
Some inquisitors are very tenacious in their questioning technique and whether purposely or not will succeed in antagonizing the most peaceful of witnesses. Angry or intemperate outbursts, no matter what the provocation, will not further your cause and might undo all of your previous noteworthy efforts. Smart aleck, know-it-all, or allegedly clever answers are out of place and are sure to demean your testimony. It is also futile to engage in fencing and sparring with or to match your wits against a skilled trial lawyer.
When testifying before a judge or jury, technical explanations should be kept simple, exact, and in plain understand-able language, devoid of construction jargon and arcane architectural terms. Keep in mind that clear, precise, and unambiguous communication is the primary objective.
If, after a question is asked, one or more of the lawyers voices an objection, do not begin to answer the question until after all objections have been ruled upon by the arbitrators or judge. In a deposition, where no one has the power to rule on objections, hold up your answer until all the lawyers have placed their objections on the record. Then you will have to use your own judgment whether or not you will answer the question. If your own lawyer is present, you will be advised whether or not you are required to answer. In the absence of your own counsel, gratuitous advice or instructions offered by the other lawyers present may or may not be in your best interest.
The Expert Witness
Architects, engineers, and other technical experts are called upon to testify in various legal proceedings. They are relied upon to render objective professional opinions. They must disclose conflicts of interest and must have no interest in the outcome of the controversy. They must be well informed, appropriately educated, impartial, candid, truthful, and articulate. Often, they are asked to consider and answer hypothetical questions.
When you, as a construction industry professional, appear as a percipient witness, often the lawyers, even those representing adverse parties, will treat you as an expert witness just because you are there and available. They recognize you as an architect or engineer and accept your obvious expertise. Even when you are testifying as a percipient witness you will often be asked questions involving professional opinion. In such cases, it is best to avoid giving offhand opinions unless you are given ample time to research all relevant facts and conditions and have properly considered what an appropriate opinion should be. Spontaneous, off-the-cuff, unstudied opinions upon later and deeper reflection might be regretted.
Always be wary of overreaching into related areas beyond your expertise, such as into soils, structural, mechanical, or electrical engineering. This is unnecessary and can seriously damage your credibility.
1. Standard Form of Agreement Between Owner and Architect with Standard Form of Architect’s Services, AIA Document B141-1997.
2. Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum, AIA Document A101-1997, or Standard form of Agreement Between Owner and Contractor where the basis of payment is the Cost of the Work Plus a Fee with a Negotiated Guaranteed Maximum Price, AIA Document A111-1997.
3. General Conditions of the Contract for Construction, AIA Document A201-1997.
4. B141-1997, Subparagraph 22.214.171.124: “If any of the following circumstances affect the architect’s services for the project, the Architect shall be entitled to an appropriate adjustment in the Architect’s schedule and compensation: .6 Preparation for and attendance at a public hearing, a dispute resolution proceeding or a legal proceeding except where the Architect is party thereto.”
5. A percipient witness is usually one who is personally involved in some way in the matter being litigated either as an eyewitness or a party or as an employee, advisor, supplier, or contractor to one of the parties or who may have knowledge relevant to the issues in the matter.
6. Such as the oft cited, “When did you stop beating your wife? Answer Yes or No.” Either answer requires an explanation.
This article first appeared in Design Cost Data in the Oct/ Dec 1994 Issue. All of the AIA document citations have been updated to the latest editions. Additional reading on the subject will be found in “A Guide to Successful Construction - Effective Contract Administration,” Third Revised Edition, by Arthur F. O’Leary, FAIA, MRIAI, published by BNi Publications.
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