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1 THE PRESERVATION AND PROSECUTION OF CONSTRUCTION CLAIMS Cincinnati, OH – May 30, 2008 William M. Mattes, Esq. Dinsmore & Shohl LLP 175 S. Third Street,

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Presentation on theme: "1 THE PRESERVATION AND PROSECUTION OF CONSTRUCTION CLAIMS Cincinnati, OH – May 30, 2008 William M. Mattes, Esq. Dinsmore & Shohl LLP 175 S. Third Street,"— Presentation transcript:

1 1 THE PRESERVATION AND PROSECUTION OF CONSTRUCTION CLAIMS Cincinnati, OH – May 30, 2008 William M. Mattes, Esq. Dinsmore & Shohl LLP 175 S. Third Street, Suite 1000 Columbus, Ohio (614)

2 2 Alternative Dispute Resolution vs. Litigation of Construction Claims William M. Mattes, Esq. Dinsmore & Shohl LLP 175 S. Third Street, Suite 1000 Columbus, Ohio (614)

3 3 I. Mediation Neutral party hears both sides of story and tries to informally settle a case Cost is low Willing parties usually good results will occur

4 4 Pre-Suit Mediation Mandatory: –Make it part of contract –Tends to settle a large number of disputes –Keeps disputes business-like v. personal –Allows motion to dismiss or motion for stay Optional: –Easier to ignore –Can lead to increased litigation costs Personally: –I know of no good reason why pre-suit mediation should not be mandatory in every construction contract

5 5 Hiring An Appropriate Mediator Know Your Mediator –Style –Temperament –Ability to relate to construction clients Know The Facts –Mediator has no time; you have plenty –Make sure appropriate facts are given to mediator Know The Law –Educate client, opposition and mediator –Make sure appropriate legal arguments are given to mediator Know What Is Reasonable –Appropriate mediator will be reasonable

6 6 Keys to Successful Mediation Hire the best Prepare a legal outline Force client to draft key factual disputes/outline Prepare as you would for court –Do a mock mediation –Plan situational responses Think outside the box –High low agreements –Non-monetary items Ten hour days – be wary

7 7 1.Determine value of all claims 2.Determine cost of litigation 3.It is a numbers game 4.Who holds authority to settle -Counsel v. company representative Strategy

8 8 How to Handle the Mediator Respectfully Firm Information to share v. private Situations –Well then were done –Thats just unreasonable –Do you think the jury will buy that –Do you know how much this will cost to try –Meet them halfway –Lets schedule another day

9 9 –Let the business people talk –Can I speak to your client… Alone Frankly On item x –If you come to x and I get them to come to y… –They are willing to stay all night –Ok – now get me your best offer

10 10 When To Walk If client distrusts mediator If no movement from other side If opening demand/response is too far off When client is tired, upset, irrational When it becomes clear opposition has no clue on facts, law or reality

11 11 Mediation Conclusion: It is still the most cost-effective manner to realistically evaluate your case and the other sides resolve/valuation You may also see your claims/defense through the eyes of the mediator and catch something you missed If you are drafting/reviewing contracts and need/want an ADR clause, use a pre-suit mediation requirement.

12 12 II. Arbitration 1. Mandatory v. optional 2.AAA v. Alternatives (alternatives are generally less expensive) 3.Location, location, location (always try to get a local panel)

13 13 Arbitration Number & Qualifications of Arbitrators 1 or 3 Arbitrators Contractual provision Can be laypersons, engineers, lawyers, judges, etc. Cost concern Time concern

14 14 Arbitration: FINALITY & APPEAL Gives you finality May only overturn on Appeal in Ohio if you can prove: –The award was procured by corruption, fraud or undue means –Evidence of partiality or corruption on part of arbitrators, or any of them –Misconduct of panel in refusing to postpone, refusing to hear evidence or any other misbehavior by which the rights of any party were prejudiced –If arbitrators exceed their powers or so imperfectly executed them that a mutual, final, and definite award on matters submitted was not made Ohio Revised Code §

15 15 Arbitration DISCOVERY In most cases it will be limited in amount In most cases it is a short schedule No real judge to rule on disputes Client forced into a lot of work in a short amount of time

16 16 Arbitration EXPERTS If an engineering case and engineers on panel, they tend to be their own experts Helpful to explain concepts Still a battle of which experts win the beauty contest Make sure experts know or dont know the arbitration panel

17 17 Arbitration MAKING A RECORD Despite limited ability to overcome adverse verdict, must make/keep record (corruption, fraud, impartial, misconduct, failure to accept testimony/evidence, failure to rule on motion submitted) Treat as trial transcript Do not allow panel to go off the record

18 18 Arbitration: COST Can be, usually is, most costly form of ADR Pay for panel, room, record and filing fee Time constraints tend to increase cost Very expensive opening/filing fees based on value of claims Legal Fees can be assessed against you

19 19 Arbitration: CONCLUSION If finality and time concerns are key, I recommend using arbitration If cost is a concern this can be the most costly form of ADR On a personal note, I NEVER recommend arbitration

20 20 III. Litigating Construction Claims State v. Federal If the option is available, most will choose federal If in an outlying county imperative to have local counsel

21 21 Preparation 1. You must prepare your witnesses for deposition as if the entire case depends on testimony…it does! 2. Meet early and often with witnesses to prepare 3. To be prepared, have your witness understand, review and discuss the same things the lawyers will review: complaint answer & affirmative defense contract key documents expert reports literature internet all documents sent/received time-line all of your publications all of your companys advertising/promotional material

22 22 4.Time you must be more prepared than opposing counsel take several days to review and reinforce no distractions expert v. fact witness (more time needed and expected) 5.Set date, time & place – when and where client is most comfortable clear your schedule days before and after A.M. or P.M. early or late in week 6.Eat, Drink & Sleep all affect how client will testify do not change any routine a well rested witness is a good witness

23 23 Deposition Day 1. On the Record: remind client it is all recorded 2. Dress: business casual – make sure they are comfortable 3. Discussions off Record: nothing about the case 4. Routines: keep them 5. Breaks: early and often no more than 1 hour without a break insist on a lunch break no more than 7 hours of testimony in a day 6. Video Deposition: if you know video – practice 7. Objections: listen carefully

24 24 Deposition Rules Rule #1 Be 100% honest Rule #2 Yes, No or I do not know Rule #3 Answer the question and only the question Rule #4 Do not assume anything Rule #5 Take your time Rule #6 Wait until the question is complete Rule #7 It is an interrogation, not a conversation Rule #8 Ask to see the document – then READ it Rule #9 Do not help opposing counsel Rule #10 Never forget rule #1

25 25 After the Deposition 1.Get copies of all exhibits 2.Read, correct and sign deposition transcript 3.Keep copies

26 26 Expert In Construction Cases Rule #1 Never Act. Either you are an expert or you are wasting everyones time and money. Juries and judges know actors and fools Rule #2 Limitations are Good – limit your area of expertise The Ohio Administrative Code that regulates Professional Engineers requires that any expert opinion be founded: -upon adequate knowledge of the facts -with technical competence in the subject matter -honest conviction of accuracy and propriety of the expert opinion

27 27 Rule #3 Know what you have done Publications – remember public statements and certification are limited by the Ohio Administrative Code in a manner similar to expert opinions. Prior testimony Prior reports Draft reports Rule #4 Read all expert reports Rule #5 Draft, edit and review your report as if the case depended on it – it does. Rule #6 Review everything opposing counsel reviews Pleadings: complaint, answer, discovery responses Time-line: know it Key documents: know them Your report: typically the attorney knows it better than you do – do not let that happen

28 28 Rule #7 Admit the obvious – do not attempt to deny everything Rule #8 Do Not Help Opposing Counsel Rule #9 Meet with the real client and the attorney Know the case better than they do Seek input and help early and often Do not delegate if at all possible – do it yourself Rule #10 Know your own billing records

29 29 Expert Testimony Daubert Supreme Court case on admissibility of expert testimony The theory or technique must be reliable (i.e tested), peer reviewable, error rate must be known and there must be some scientific basis (i.e. generally accepted methodology in the scientific community) To help, your opinions must be admissible Must keep in mind when drafting your expert report

30 30 Rules of Evidence In Ohio, to testify as an expert your testimony must: Relate to matters beyond knowledge of common man or dispel a common misconception; and You must possess knowledge, skill, training, education and experience that qualify you; and The theory must be based on scientific or technical information that is reliable, can be tested or verified, and if a test was performed – it must be proper with accurate results.

31 31 Expert Testimony Required: Expert testimony is necessary to establish professional negligence of design professionals - whether the designer exercises reasonable care in preparation of his designs depends upon the standard of care which licensed architects/engineers must follow. Simon v. Drake Constr. Co. (1993), 87 Ohio App.3d 23, 621 N.E.2d 837; Vosgerichian v. Mancini Shah & Associates (1996), Nos , 68943, 1996 WL (Ohio App. 8 Dist., Cuyahoga County). Simon v. Drake: A worker was injured after falling from a fixed ladder inside a city parking garage. The worker sued the project architect alleging negligent design in the fixed ladder. However, the worker failed to present any expert testimony that the architect did not meet the standard of care required of a licensed professional architect in Ohio; thus his claim was dismissed.

32 32 Expert Testimony Required: Capital Dredge & Dock Corp. v. City of Avon Lake (1978), No & 2728, 1978 WL (Ohio Ct. App. 9th Dist., Lorain County): Two consulting engineers to the City could have been primarily liable for the negligently-prepared plans and for negligently approving shop drawings for an outfall sewer project in Lake Erie, but the plaintiff did not retain an expert witness to testify as to the standard of care required of an engineer in similar circumstances. Thus, the claim failed.

33 33 EXPERT CASES IN OHIO Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 687 N.E.2d 735: This is a products liability case involving the design of a football helmet. The Court found the plaintiff's expert testimony – consulting engineer in the field of mechanical and biomedical engineering - was sufficiently reliable, as the opinion was based on tests that measured the helmet's compliance with nationwide standards governing the manufacture of athletic equipment, and evidence showed those standards existed to prevent head and neck injuries.

34 34 EXPERT CASES IN OHIO The Court used four factors to evaluate the reliability of scientific evidence: (1) whether the theory or technique has been tested; (2) whether it has been subjected to peer review; (3) whether there is a known or potential rate of error; and (4) whether the methodology has gained general acceptance. (using Daubert as a framework).

35 35 EXPERT CASES IN OHIO The Court expanded the scope of analysis, writing, "a trial court's role in determining whether an expert's testimony is admissible under 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof at trial."

36 36 EXPERT CASES IN OHIO Shreve v. United Electric & Construction Co., Inc. (2002), No. 01CA2626, 2002 WL (Ohio Ct. App. 4th Dist., Ross County): An employee sued his employer after the wall of a ditch collapsed on his shoulder. In finding for the employer, the court held that the employee's expert testimony regarding the soil's propensity to slide was not sufficiently reliable to be admissible. The expert stated his testimony was based on the assumption that the soil was clay-based; however, the expert never tested the soil in question, nor did he provide an explanation as to why the clay-based soil carried a propensity to slide.

37 37 EXPERT CASES IN OHIO In sum, t he court found that because the expert did not adequately examine the soil or adequately explain and support the theory underlying his opinion, and he did not set forth an objectively verifiable theory to support that opinion, his testimony did not meet the Daubert reliability test.

38 38 EXPERT CASES IN OHIO Radford v. Monfort (2004), No , 2004 WL (Ohio Ct. App. 3d Dist., Mercer County): A pedestrian sued a restaurant owner and the owner of a construction company, alleging he was injured when he slipped on a wet sidewalk outside the restaurant.

39 39 EXPERT CASES IN OHIO Before granting summary judgment in favor of the defendants, the court excluded the pedestrian's expert testimony. The pedestrian's expert was a civil engineer and licensed surveyor hired to determine whether the walkway outside the restaurant was safe.

40 40 EXPERT CASES IN OHIO He measured the coefficient of friction of the walkway in accordance with the nationally recognized standards; however, he then deviated from those procedures by factoring in the degree of slope on the surface.

41 41 EXPERT CASES IN OHIO Such a deviation was not set forth in the standards, nor was it supported by any other recognized industry standard. So the court found his testimony was inadmissible because it was not based on a reliable method or industry standard.

42 42 Reasonable Degree of Engineering Certainty Lee v. Barber (2001) No. CA , 2001 Ohio App. LEXIS 2980 (Ohio Ct. App. 12 th Dist., Butler County): A property owner sued his neighbor for allegedly causing excess water and sewage runoff to enter his property, causing the foundation of his home to crack. His experts testimony was excluded because he could only testify as to what possibly or may have caused the damage… The appeals court noted that he did not express that there is a greater than fifty percent likelihood that [the runoff] produced the occurrence at issue in the case. The testimony, therefore, did not meet the reasonable degree of engineering certainty standard and was properly excluded.

43 43 EXPERT TESTIMONY - CONCLUSION- 1.Meet regularly with counsel 2.Do not delegate 3.Test accurately 4.Use standards – no deviations 5.Peer Review 6.Edit carefully 7.Meet with client before finalizing report 8.Understand your opponents position

44 44 Trial Testimony -- Key Tips 1.Be a Teacher - judges & juries want to be spoken to and taught 2.Never talk down to the judge, jury or opposing counsel 3.KISS – Keep it Simple Stupid 4.Relate to judge/jury - use everyday concepts 5.Dress the Part Expert: Suit & tie for men, business attire for women Fact: Business casual – fly the colors of the company

45 45 6.Honesty is still the best policy 7.Do not change your demeanor on cross and questions from the judge 8.The eyes of the world are following you 9.Confidence is key 10.RESPECT the process the parties the judge the jury opposing party/counsel

46 46 CARLA MARTIN Does anyone know who she is and why she is famous?

47 47 Witness Trial Preparation: Post Moussaoui Concerns Government attorney who prepped witnesses for death penalty phase of Al Qaeda suspect Zacharias Moussaoui Judge barred all witnesses she prepared

48 48 Moussaoui case FRE 615 – witness sequestration order issued Purpose - Keeps witnesses from tailoring testimony Aids in detection of less than candid testimony Martin sent copies of offices testimony to witnesses Told witnesses how to testify to shore up weaknesses in case Life in prison was sentence: much of the evidence was kept out due to Carla Martin

49 49 Witnesses should be coached, so long as they are not coached to play dirty…not all coaching is bad. Superior Oil Co. v. Mississippi 280 U.S. 350 (1930). Justice Holmes Witness preparation may be promoted as a truth-seeking device to help witnesses recall facts and details previously overlooked. Nix v. Whiteside, 475 U.S. 157, (1986) (Justice Stevens)

50 50 Witness Preparation To represent to best of ability – must prepare Cant offer false or perjurious statements Must be ethical Must be truthful Must review exhibits New York Times – would you say it for quote on cover page Meet separately to avoid impropriety

51 51 Judge v. Jury Most cases waiver is warranted Stipulations – very helpful to Judge Keep it short – attention span is low

52 52 Appeal Make a good record Appeal can change case 180° Keep as many critical issues available for appeal This is the key advantage over mediation and arbitration

53 53 Conclusion Mediation – least costly, non-adversarial usually best result for client Arbitration – Costly, quick (usually) and final Litigation - Costly, Judge for discovery issues, ability to appeal – long time to get there William M. Mattes, Esq. Dinsmore & Shohl LLP

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