By Zoe Gaik,
Architectural Forensic Associate
RGA Design Forensics
While many of you are not yourselves forensic architects, it is still valuable to know how your forensic architect expert witnesses can be prepared for a deposition or trial. The preparation leading up to a deposition or trial is important, if not just as important, as one’s performance during deposition or trial. This article will guide you through what information and documents are necessary to provide during, and leading up to, the date. 1. Executed contracts In trial, providing the contracts signed between the expert and attorney is essential to prove to the judge that the expert’s payment is fulfilled, and not contingent upon the expert’s performance at trial. To give an air of transparency, we also like to include the contract as an addendum to our reports. This impression can mean a great deal in deposition or trial.
2. Expert credentials Although Florida is once again a Daubert state, providing the expert’s credentials is still important to include in order to prove whether the expert is qualified to make an opinion in their area of expertise. In addition, as mentioned above, this also gives an air of transparency. 3. Inspection notes If the lawsuit deals with premises liability, negligence per se, or construction document breach, it is imperative that the forensic architect inspects the premises in question prior to a deposition or trial. This is crucial, even if the condition is clearly visible in prior photographs, because it enables the expert to simply say, "I’ve seen it with my own eyes." As an expert, inspecting a site in person is also a standard of care for us in each lawsuit we serve, gathering the tangible information ourselves as to appear to the court and opposing counsel to be unbiased in our conclusions. In some cases there may be pertinent information that the original photograph taker (whether it be the Plaintiff, a witness, or the attorney) has missed, such as a vertical rise over ¼”, the proximity of the area to an exit door, or location on an accessible route. In addition, some premises owners will have remedied the situation after the incident occurred, in which case it is still important for experts to assess the new conditions because they may still be deficient. Also, other valuable site information can still be gathered, such as those conditions mentioned above. So, it is important to bring notes from the inspection to the deposition and trial, because experts will likely be questioned heavily on the condition of the site.
4. Photographs This goes hand in hand with inspection notes. Any photographs reviewed or taken at the inspection should be brought to a deposition. Many times, it is beneficial to document measurements taken during the inspection with photographs. This makes it more difficult for the credibility of an expert’s argument to be defeated if there is photographic proof of the deficient or compliant conditions.
5. Code research One of the most important things to bring to a deposition or trial is the research an expert has done within the applicable codes and standards. As mentioned in #2, Florida is a Daubert state, which makes it all the more imperative to provide solid evidence of any deficiency or compliance found onsite. Further, it is crucial to provide the dates each code or standard was adopted into Florida law, to ensure the codes’ governance during the date of the building’s construction or governance during the date of the incident.
6. Timeline This one is VERY IMPORTANT. Throughout our years of experience in depositions and trial, this has been the number one thing we get considerable questions about. Therefore, it is imperative the expert has all their ducks in a row, having chronologically laid out the sequence of events pertinent to the case. The date in which each code or standard cited became active or adopted, the date of the building’s construction (if known), the date of any renovations that may have taken place between construction and the incident, the date of the incident, and the date of inspection should all be included in one’s timeline.
7. Reports A report is an excellent way to utilize the inspection notes, photographs, code research, and timeline together to communicate the deficiencies/compliances found onsite. There are two approaches going into a deposition or trial: the first, going in having studied the case and relevant facts and conveying your opinion strictly from memory. The second, going in having a clear broken-down description of the conditions found, supported with photographs, measurements, and pertaining code provisions all laid out in front of you. We typically choose the latter because it makes our testimony more concise and more difficult to obfuscate.
8. Visuals Lastly, visuals can aid an expert in deposition or court. By visuals, I mean graphically communicative boards showing a simple representation of the case at a glance. We like to use visuals because along with all of our words and facts, it drives the point home in a different way. Our boards include large key photos that can easily inform any viewer about the deficiencies or compliances onsite. Sometimes we use short descriptions as well, maybe five words or less, that describe the condition shown. However, other times in trial, some boards with words on them can be thrown out. So sometimes we make two copies, one with words and one with just photographs, to ensure at least one set of our boards can be used in court no matter the judge. In conclusion, from our experience juries respond well to more concise and easily understandable information, as opposed to pages of code provisions that may become confusing. But confusion may be your game, depending on what case you’re fighting, which we understand too. We hope this list gives you a good idea about what to bring to a deposition or trial and has maybe even given you a couple new ideas about how you can communicate your information more effectively during these times. Shoot me an email if you have any questions or if you would like to discuss a case: ZGaik@RGA-Design.com. See you in court!