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Litigating
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Litigating a Vibration Damage Claim Litigating is time-consuming, expensive and frustrating, but it may be your only option if you have substantial vibration damage from construction heavy equipment use nearby. It can easily take years to get your case to trial. You may have to take the lead role in assembling the case, probably educating the attorney in the process. You will have to participate in (and pay for) depositions in the case. Expert witnesses will have to be located and you will have to pay for their time and travel, even if you find an attorney who will take your case on a contingency basis. The more parts of the case that you can do, the more money you can save in legal-related costs. So, expect to spend a sizable amount of your own time assembling the facts and documentation (see the CVDG Pro documents, Working With An Attorney and Researching A Claim, for more on this topic) for the case. This chapter has basic information about the litigation process, for those who may be unfamiliar with it. Damages There are two basic types of damages that you can seek in a "tort" (i.e. a civil wrong, not criminal charge) claim, compensatory and punitive damages. Compensatory damages are those that can be granted to reimburse you for your direct monetary loss. You will have to document that loss thoroughly with repair and other estimates. Even if you have documented the loss well, it can be expected that the construction company, their insurer, and their attorney will do everything in their power to minimize or call into question part or all of your compensatory damages claim. Punitive damages are separate from compensatory damages and can be awarded by a jury over and above compensatory damages. While I'm not an attorney, a layman's way of describing punitive damages is that they can be awarded only if the jury finds the defendant to have acted in a willful, disregardful, fraudulent, unlawful or reckless manner (or, in some documented cases, all of the foregoing) in causing the damage. An attorney in your jurisdiction would probably include some other, or different, descriptions as well, depending on the law there. Thus, you can receive compensatory damages and not be awarded punitive damages. In most situations, you cannot be repaid for the time you invest in keeping down your legal fees nor can you obtain reimbursement of legal fees themselves. Punitive damages are about the only way you can get these items covered, at least in effect. Damages can be awarded at trial only after you have established to the satisfaction of the jury (or judge) that the Defendant was guilty of one or more causes of action named in your lawsuit. Causes of action are violations of law, propriety, normal concern, accepted procedure or contract terms (among others), which you can show contributed to or caused your damage. These are stated in your lawsuit as reasons for the suit, along with facts supporting the causes of action. The Tort Claim Notice In most jurisdictions, your attorney must file a tort claim notice, or similarly named document, with the prospective Defendant(s), prior to filing of the lawsuit itself. Your own written notification of the Defendant(s) of the damage and its presumed cause is not a replacement for the tort claim notice. The formal legal notice allows the Defendant(s) to learn of the claim and obtain or notify legal counsel. The tort claim notice should be filed by your attorney as soon after you become aware of the damage as is practical, if you intend to sue for damages. There can be a considerable period of time between the filing of the notice and the filing of the actual lawsuit. This time is often used by the attorneys for the parties to attempt to work out some reasonable settlement of the claim, thereby saving the time, expense and frustration of litigation for all involved parties. Filing Suit The lawsuit itself is usually written by your attorney. That said, you will have to provide the attorney with a great deal of factual information to support the drafting of the suit. Once the suit is drafted, you must read it carefully, making any changes to wording that you think are necessary to state correctly the facts. This is critical, because you understand the facts better than the attorney, even though you probably don't know the law as well as he/she does. You will have to live with every word in the lawsuit, so make certain the lawsuit is factually correct in every detail. In reading it, you may also identify possible causes of action that have been omitted. You should discuss any of these you may find with the attorney. Once the suit is completed, the attorney will file it with the relevant court. Discovery Discovery is a process by which each side finds out about the available facts in the lawsuit, after it has been filed. Discovery is time-consuming and expensive, but it can be helpful in resolving the suit before the expense of a trial. It is done through interrogatories (questions asked in writing to the opposing side and answered in writing under penalty of perjury), productions (providing requested copies of relevant documents, media and other potential evidence to the opposition), admissions (asking the opposing side in writing to admit certain facts to establish those factual areas which are not in dispute) and depositions (pre-trial testimony "on the record" to questions asked by the opposing attorney). Both sides carry out discovery, and it includes not only the litigants, but, in most jurisdictions, any expert witnesses (see below) who may be called to testify by the litigants. There are often multiple iterations of each of these processes in the course of a lawsuit. Filing the first set of interrogatories and discovery requests with the suit is often wise, as a means of showing that the suit is serious in intent. Because vibration damage claims have many technical aspects, discovery in such cases must be done thoughtfully and thoroughly. Since discovery requests are usually compiled by the attorney, I will not include a listing of their likely contents here. The attorney should probably enlist the aid of an expert early in preparing interrogatories, production requests, admissions and deposition outlines, especially if the attorney has limited experience in such cases. The homeowner plaintiff should review discovery requests for completeness. Our CVDG Professional Edition page, Production Requests, has a long listing of the scientific and technical requests that a plaintiff in a vibration damage suit should consider making to a defendant contractor and/or the sponsor of the work. Commonly, one or both of the sides make discovery demands that are well beyond the bounds of the lawsuit facts. This is often referred to colloquially as a "fishing expedition". It is just as common to refuse some unreasonable, irrelevant, or even unsafe, discovery demands (for example, requests for your Social Security number(s)). Consult with your attorney, if you feel some requests to be "overly burdensome", irrelevant or unsafe before you respond to them. Just as you may refuse some requests, the opposing side likely will refuse some of yours for good, or bad, reasons. If the information sought is both relevant and critical, e.g. clearly missing vibration monitoring data and reports, and you cannot get them after multiple requests, you can file a Motion to Compel with the Court to force production of those items. If they turn up missing or destroyed after the Court rules in your favor in such a Motion, you can seek to have all that testimony and evidence excluded at trial and/or seek sanctions against the opposing side. If the evidence sought is important to both sides and hasn't been produced, don't assume that it simply can't be gotten. Don't be afraid to fight to get it produced completely or have that incomplete evidence and any relevant witnesses stricken (removed) from the case. Witnesses You and your attorney will need to identify potential witnesses in the case during discovery. These fall into two basic classes, fact witnesses and expert witnesses. Fact witnesses give testimony on the facts surrounding the case; they are not permitted to speculate or guess, give opinions, or relate information outside their personal knowledge and observation. Typically, a plaintiff will appear in the case as a fact witness. Other fact witnesses in a vibration damage case might include neighbors who observed the work or who have damage themselves, representatives of firms who have provided estimates for repair, employees of the project sponsor, and employees of the construction company, among others. In essentially any litigation in which scientific or engineering issues appear, including vibration damage litigation, there will also be expert witnesses on both sides. Ideally, expert witnesses are people who, by training, education and experience, are qualified to offer knowledgeable scientific and engineering opinions that help to explain the case facts.[1] Scientific experts will usually have a Ph.D. in a scientific discipline, plus relevant experience and/or training. A qualified scientific expert should have a significant record of publication in the peer-reviewed scientific literature (i.e. say, more than 10 publications), perhaps including a book or books. Ph.D. engineers are relatively rare, so an expert engineer may not have a Ph.D., but should have real and relevant experience and/or training, as well as publications in the peer-reviewed literature of his field. Your attorney will usually identify possible expert witnesses, though you can help if you are aware of some possible ones. An honest, hard-working, forthright, strong and knowledgeable expert witness can be a great resource for you and the attorney in understanding scientific issues, preparing interrogatories and production requests, and getting the attorney ready for deposition and trial. His knowledge, if he can communicate it well, can actually save you money by reducing the attorney fees, even though you are paying the expert. A good expert can also be a huge help in pointing out weaknesses in and potential counterarguments to your case, at least in his area of expertise. A bad expert can do more harm than good for you, even if he toes your line to the letter. Chances are he'll cost you just as much or more money than a good one. There are many people these days who may look like "experts" on paper and who may have expert witness experience. But, if you find they are reluctant to do actual work to forward your case, have trouble understanding important elements of your case in their area of expertise, won't think about your case outside meetings with them, or simply seem untrustworthy, you should shy away from them. Just as importantly, an expert who is unwilling to disagree with you on scientific grounds, when he thinks you're wrong on some aspect of the case in his area of expertise, likely will not stand up to cross-examination by the opposing attorney. A good expert must believe in your case - not because he likes you or is being paid a lot of money, but because he knows he can cite scientific studies which strongly support his opinion. A good expert may ask for a few days to think about it after viewing information relating to your damage before he renders an opinion. If so, give him that time. When talking with a potential expert, your goal should be to place the most important facts before him, but let him come to his own conclusions. You'll get a stronger expert that way. An experienced expert should have electronic copies of at least some of his previous deposition and or trial testimony. Ask him to forward to you by e-mail a copy of the testimony he believes to be the most relevant to your case, so that you can review it before you make a final decision. A transcript of a full day of testimony usually is smaller in "byte size" than a single photo from a modern digital camera; it's a matter of public record in most examples. Experts normally get copies of their transcripts for verification, so giving you a copy is easily accomplished. You should be an active participant in meeting, talking with, and making a final decision upon whether or not you'll use a particular expert in your case. Make your decision based on whether the expert shows honesty, candidness, expert level knowledge as applicable in your case, a willingness to stand strong in supporting his opinions with published and accepted scientific work, and an ability to help you and your attorney prepare the case - not necessarily simply on whether he appears to agree with you in every aspect. You should also consider how a non-technically trained jury might react to the personality of the expert, if your case goes to trial. Giving Testimony in Deposition and Trial Giving testimony, either at trial or in deposition, cannot be described as "fun" or "easy" - a fact well known to me from a great deal of experience as a scientific expert and as a plaintiff in a vibration damage case. However, you need not fear the prospect of testifying. Your attorney will help prepare you to give testimony, both in deposition and trial. Listen to and follow his advice. Prepare yourself well on the facts, so that you can give testimony with confidence and accuracy. Giving strong testimony is both an art and a science. For much more information on this topic, see the CVDG Pro chapter, Giving Testimony. Approaching Trial Trial is the culmination of those few cases which cannot be settled, usually because the damages are extensive and expensive to fix. Every trial has its own dynamics, largely dictated by the facts of the case, the quality of the attorneys, the makeup of the jury and the decisions of the judge. One of the most important trial-related events actually occurs before the start of trial in a so-called "motions in limine" hearing. Prior to this hearing, each side files motions (requests) with the Court to limit (that's the Latin in limine part) what testimony can be heard by the jury and/or what witnesses can testify. Usually, each side also files a response to the opposing side's motions in limine. The judge makes legal, not factual, decisions on what evidence gets into the trial and what stays out. The content of the evidence the jury gets to hear often determines the outcome of the trial, so considerable thought and work should go into preparing for these hearings, both on your part and that of your attorney. Picking a Jury Choosing a jury (a long topic in itself),[1] is as much an art as a science. There are many jury consultant firms across the country who will give advice on how to choose jury members from the pool picked for a trial by the jurisdiction. In the end, your attorney will have the best understanding of the people and the jurisdiction. However, you, and he/she, should keep in mind the prevalence of "construction can't cause vibration damage" biases among those involved in the construction and allied industries. It may be wise to use peremptory challenges to excuse those prospective jurors who express such biases in the pre-trial juror interviews or those who are connected with the construction industry. If possible, it is wise to do what you can to prevent other potential jurors from hearing such biased, and scientifically unsupportable, opinions during the juror interview process prior to trial start. Trial Once the jury is chosen from the jury pool, the trial starts. Plaintiff(s) present their case first and have the burden of proof. The standard of proof is a "more likely than not" standard in civil litigation, compared to the "beyond a reasonable doubt" or similar standard in criminal cases. The course of trials is determined by many factors, usually individual to each case. Sadly, perhaps, the outcomes of trials are only occasionally determined by the "facts" established by documentation, testimony and science. Emotional connection with the jury is just as important as the case facts. Your attorney will help you structure your testimony so that the jury likes you and can really feel the burdens placed on you by the construction vibration damage to your home. Each witness will normally get both a direct examination by his attorney and a cross-examination from the opposing attorney. There can be additional re-direct and re-cross examinations with many witnesses. Occasionally, the judge may ask a question from the bench. In some jurisdictions, jurors can also submit questions to be asked of a witness. No matter what the source of the question, witnesses should maintain the same demeanor throughout the various phases of questioning. One thing that homeowners with vibration damage should keep in mind is that all trials have ebbs and flows and changes in "momentum". If you or one of your witnesses does less well than you expect, don't get upset, especially in front of the jury. Move on and, through the vehicle of your attorney's questions, present your case undeterred. Things which seem bad to you may not have been understood or simply completely missed by the jury. If you become upset by such things, you are, in effect, pointing out to the jury something to which they might have paid little attention. Your attorney should make whatever "repairs" are necessitated by the performance of any witness, through questions in redirect of that witness or through questions to other witnesses. Expect that the opposing attorney will make some minor progress against you and your witnesses in cross-examination - no matter how strong the testimony. He has had years to prepare; he is not under oath. If all else fails, he can simply misrepresent the evidence during cross and close. If that last statement sounds cynical, it is based on actual observation of many attorneys over the years in quite different types of cases, both as a scientific expert witness and as a plaintiff in a vibration damage case. That prospect means that you and the other witnesses must be alert to the possibility that some of the representations made to you in questioning by the opposing attorney may be literally false. Prepare well and point out those misrepresentations briefly, where necessary. Pointing out clear misrepresentations in questioning can hurt the attorney's credibility with the jury, so he will stop them if they are revealed as such to the jury. Try not to react too much in front of the jury to testimony of other witnesses which you believe to be false, in error, or misrepresentative of facts. Your attorney will have a chance in cross to challenge such testimony. You can, and probably should, take notes during the trial regarding issues that come up that you might want your attorney to cover. You can pass the attorney an occasional note when he is cross-examining an opposing witness, if the testimony is inconsistent with the facts as you know them. For those who haven't been through it, trial is incredibly intense and draining on all parties. The attorneys will often be working every night, sometimes through the night, preparing witness testimony scripts or cross outlines and meeting with the witnesses to go over direct exam scripts. You may have to prepare trial exhibits on short notice or answer questions late into the night, losing sleep yourself. In this environment, it is understandable if people get short-tempered and say things they wouldn't normally say. If that happens, write it off to the intensity of the situation and the stakes involved. Try not to get offended or hurt. Be as cooperative with requests from your attorney as you can. Most trial teams have more than one attorney on each side; cooperate as much with your attorney's colleagues as you would with him/her. Throughout the trial, try not to "bug" your attorney unnecessarily, but don't hesitate to help him with facts during breaks. Although some might disagree with this advice, I think that you should let the attorney run the case as he sees fit at trial. He may make some decisions that you might question, but he has probably thought through the implications of each piece of testimony and evidence, where you may not have done so. If you feel strongly about some issue, bring it up in a break, at lunch or after court. Appeals Because there are usually large amounts of money at stake in vibration damage trials, it is often true that the losing side will appeal. Since the "finding of fact" by the jury usually cannot be appealed, an appeal must based on a recitation of legal "mistakes" made by the judge in handling the case and trial. Appeals can go on a long time and at considerable cost, so any large jury award is often negotiated downward post-trial to avoid the appeals process. Justice for All? It is important to keep in mind that the courts constitute a legal system; it is only incidentally a justice system. You would be well advised to remember that fact at all times as you undertake litigation of a vibration damage claim. Doing so will save you frustration at the least. This "brief" description can't portray all the dynamics of litigation generally or the specifics of vibration damage litigation. The intention of it is to familiarize homeowners with some of the workings of the litigation process, based on my over twenty years of experience and over 50 occasions giving sworn testimony, both as a scientific expert and fact witness. If the advice of your attorney contradicts anything said here, follow your attorney's advice and counsel.
Disclaimer: The Construction Vibration Damage Guide is not offered, and should not be considered, as advice on the law in any jurisdiction or form. Seek the advice of an attorney with construction vibration damage claim experience and knowledge, if you need legal help. Trademarks appearing in the CVDG are the properties of their respective owners and are used in the CVDG only for the purpose of identification. |
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