NICFI Presentation 1 2015.Roland.Vierra.pdf · Small claims court “expert” witness for Mohawk.My report stated nothing was wrong.Mohawk submitted my report as their evidence.Judge

This is usually a much longer presentation . . . I’ve condensed it to fit in the available time so I may not cover some items of particular interest . . . If there is anything specific you’d like information on, you can always contact me directly – at the end of the presentation I will share my contact information

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Name, Company name

I’ll put a slide up with my contact information at the end of the presentation

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Name, Company name


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My favorite quote, from one of my most favorite people I always ask for everyone to ponder this quote for a few seconds before I proceed with the presentation. A moment of Zen, if you will

When Ralph asked me if I would do this presentation, I said, sure, why not. I was not a member of this fine organization but I liked just about everyone associated with this group

And I was thankful that some folks were not associated with the group

And, just like everthing else Ralph has asked me to do, this too has been harder than hell

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Cool name

I came up with it all by myself!

Use it in my literature – my brochure – with the questionmark

People smile

Personality is a big part of your success. Have a personality

Floor inspectors that walk into a home and say nothing – grumpy gusses

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Let me tell you a story – it’s story I call “The Ladder”

I was fortunate because when I was first starting my journey up this ladder, I had a very knowledgeable mentor and that person is Ralph. I might not have even started this journey without his encouragement (and lot’s of vodka).

I had ralph, but back then I sure could have used Rosalie as well. It’s only been recently that she’s entered my professional loife and while I do not get everything done as quickly as she would like I rely on her far more than even she realizes –PLUG her Expert Communbications newsletter is a monthly must read for me

.Small claims court “expert” witness for Mohawk

.My report stated nothing was wrong

.Mohawk submitted my report as their evidence.Judge read the report and promptly refused to accept it as anything more than drivel.According to the judge, the report

)Represented nothing more than a lay persons opinion)No substance ‐ not industry standards or guidelines cited)Opinion not built on any clear path of reasoning

.I was embarrassed

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.Mohawk was amazed that they lost the case ‐ after all, my report was every bit as good as all the other reports that they receive

.Reflection/introspection on that experience ‐ what did I learn and, more importantly, what changes would I make to ensure this would never happen to me or my client again

.It was that experience that started my journey up the ladder

.Some might call this journey up the ladder as the journey to success. It is not

.The journey is to a new, exhilarating level of professionalism.

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Lets talk about the move from floor inspector to

The entire journey starts with a frame of mind

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The floor expert

Not too long after my encounter with that small claims court judge, I experienced a professional metomorphisis

It began with my view of myself.

I looked around me, I looked at my competition, and with all due respect to every single person in this room, I did not want to be like you

I didn’t want to be like my competitors. I did not want to be an inspector.

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I was done with classes by IICRC or this “expert” or that “expert” I felt like was one of the herd, continuing to inbreed every single yearJust to get my “credits”

I no longer cared about being certified – I cared about knowing more than everyone else

I wanted more

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This is where you start You become an expert

Believe it or not, it is not difficult to do – assuming the mindset that we spoke of earlier is put into place

Many of you have at least taken initial steps – you’ve tipped your toes into the water, as they say.

You belong to this august body of professionals

You rely on continuing education outside of the normal agenda‐driven organizations out there ready and willing to take your money and then re‐visit your wallet annually when it comes time for re‐certification and continuing education

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Nowhere in my definition of expert does it say you must know everything

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Other than small claims court

.Most of our litigation work will come from the construction defects field

.As exciting as construction defects work can be, it seldom ever makes it to court..Most construction defects claims are fairly complex and boring ‐ I’ve heard judges tell attorneys that they do not want to hear this case so they better settle.

.What is your bread and butter as an expert?

.A strong, well‐reasoned and accurate opinion to your

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client ‐ even if that means you need to tell your attorney there‐ is‐ no‐there‐there.Assist with and participate in mediation conferences

.What is a mediation conference?.Assist with deposition preparation (your attorney) as he/she gets ready to depose other experts.Offer strong deposition testimony (verbal communication)

.So let’s look at the path into and through a typical construction defects case

.The stories you are about to hear are true ‐ only the names have been changed to avoid a libel suit

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Your Retention in this case

.Your original retention is generally not as an expert

.You are usually retained as a consultant ‐ they can’t (and shouldn’t) commit to you without first knowing your take on things.

.An attorney calls and in a few minutes attempts to explain to basis for the case

.The attorney should always start the conversation by.Identify the name of the case.Identify the names of the principals and opposing attorneys.Ask if you have an conflicts

.If the attorney does not ask those questions, you need to ask those questions before talking about any case details

.The attorney then briefly describes the issues (watch your clock ‐ he should not get so detailed that a 5 minute discussion turns into a 30 minute question and answer session ‐ it you see that happening, he’s looking to get lot’s of free information from you and you need to end the conversation.

.Mr Attorney, I’m enjoying our discussion but I’m late for an appointment.

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Can I send you my CV, my fee schedule and my retention agreement?

.What you need to know.Your attorneys theory of the case.Without knowing the details, is his case theory plausible with your

understanding of the best practices and the type of material involved.

.If the attorney has a level of comfort with you, he will ask that you forward a copy of your rate sheet and you CV

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.This is the case of Dumb v. Dumber

.Plaintiff (Doctor Dumb) files a complaint against his general contractor (Dumber Brothers Builders ‐ Moe, Larry Curly) for any number deficiencies with a recently constructed surgical center.Dr Dumber hired a jack‐of‐all‐trades expert, usually (but not always) a person that does plenty of plaintiff’s work and very little defense work..Plaintiff’s expert does exactly what he should do ‐ he looks for and finds anythinbgand everything that is wrong or might be wrong and he reports it to Dr Dumb.

.Dr. Dumb hires a reputable attorney and we’re off to the races!

.The GC receives the formal complaint and he hires his own attorney

.The defense attorney reasons he, we were only the GC ‐ others did the real work so lets cross‐complain ‐ we’ll sue everyone.The defense attorney will usually cross‐complaint to everyone else involved in the original construction instruction ‐ shit rolls downhill, always, so even the little guys (the landscaper) get’s brought in.

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How many of you have a CV

)The basics of a CV)Lot’s of examples on line)Simple and direct

.Before you start copying examples on line.Talk to Rosalie ‐ she’s great and she did wonders with my CV.I didn’t think the CV that I created could be any better and boy was I wrong!

.Send the CV and rate sheet promptly.E‐mail is almost always fine but confirm with the attorney before hanging up.Include a brief cover letter (or e‐mail) thanking the attorney for calling, telling him that the case sounds interesting and you believe you’re a good fit for the project.Invite him to call if he has any other questions about your qualifications

.No more litigation questions until after he retains you

.Usually, in a week or 2 or a few months, the attorney will call and express his desire to retain you ‐ this initial retention is almost always as a consultant

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.Ralph will cover retention agreements and Rosalie is an expert at retention agreements so I’m only going to suggest that all of you that are serious about climbing the ladder listen to Ralph and get together with Rosalie

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How do know how much to ask for up front?

.Again, a valuable tip from Rosalie)I usually figure about 10 hours as reasonable for my initial retention

)NOTE: On some smaller cases, especially those involving a homeowner against a flooring contractor or a general contractor, I become a softie and I do not ask for a retention. But I do bill out in real time and I will stop work if an invoice is not paid promptly

)This usually involves cases where I was originally retained by the client, then he begins an action against whoever.

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Be professional, by all means, but also be a person. There is nothing unprofessional with being reasonable, fair and sympathetic.

.Example: some of the worst advice given to “inspectors” is don’t say anything. I have seen guys walk in, say hello, and then answer every question with “I can’t talk to you”..Any of you that do that are doing yourself a huge disservice. Be conversant and be smart..Being personable goes a long way with towards developing you “professional persona”.

.I want to bring this up because, for whatever reason, many of will decide to stay in the residential claims inspection field and that’s great

.As an example:)Homeowner: So, what’s your opinion?)Me (with a smile on my face); I really haven’t had time to develop an opinion. I still have some research to do.)Homeowner: What research?)Me: (with a smile on my face): I want to review the product data

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sheets and I want to review the published installation instructions. So you can see, this was the fun part ‐ now my real work begins (with a smile on my face).

)Excuse my digression!

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Now What ‐ You’ve been retained as an expert and you’ve received you retention check.

.Ask for all pertinent documents for your review

.Schedule a site inspection

.Develop your professional opinion

.Discussion with the attorney

.Never write a report until the attorney asks for a report ‐ and he won’t ask for a report unless he’s satisfied with your verbal opinion

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Mediation

.Mediation is a meeting of everyone named in the litigation set up for the purpose of settling the case..Usually run by a designated special master ‐ this special master can be appointed by the court or hired by the parties to the case.

.Begins with a presentation by the special master.he will usually make sure that the people that have authority to settle this case, i.e., have access to money, are present and are ready to settle if conditions are right

.Separates the parties into their own private rooms

.The Special master engages in a kind of shuttle diplomacy, going from room to room, cajoling, probing, trying to get everyone to move towards a common center.

.The most common mediation outcomes

.Possible repair scenarios are discussed (that’s why the expert is there)

.Everyone comes away with a better understanding of what the case is

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“worth” to the other parties.Basis for further mediation conferences are laid and agreements to “do this again soon” are made

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Deposition

.Know your area of expertise, be conservative rather than expansive if in doubt.Always be in your comfort zone.The appropriate mind‐set for staying within your comfort zone

)You know way more about the subject matter than any attorney in the room)You are the expert in the room, do not forget that

.What is a deposition? What is the purpose of a deposition? Why do you need to be deposed?.Do not go into a deposition without first going through a deposition meeting with your attorney.What records do you need to bring to deposition

.No laptops or tablet computers.Payment for deposition

.Letter to attorney)The fee will be)Payment is expected

)5 days before the scheduled deposition )Upon completion of the deposition

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)State so on the record at the start of the deposition.Print all of your case records, organize them.Who pays for what

.Deposing attorney pays for the time in the deposition

.Your attorney pays for your preparation, including costs of printing and organizing the case file

)This includes your time AND your expenses

Thank You

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Documents

NICFI Presentation 1 2015.Roland.Vierra.pdf · Small claims court “expert” witness for Mohawk.My report stated nothing was wrong.Mohawk submitted my report as their evidence.Judge