Depositions are a critically important part of the plaintiff's strategy. They enable the plaintiff to bring out facts that trigger insurance coverage. They also enable the plaintiff to obtain testimony that, among other things: (a) authenticates important documents; (b) lays foundations for other testimony; (c) provides fodder for impeachment of witnesses at trial; (d) gives plaintiff the opportunity to create a record that can be used to defeat summary judgment motions at the close of discovery and to support the opinions of its expert; and, (e) most importantly, enables the plaintiff to sustain its burden of proof at trial. We often spend months preparing for depositions of important witnesses such as project managers, design professionals and product manufacturers, since those depositions can be of seminal importance. A great deal of thought, preparation, experience and skill is required in planning and executing your deposition strategy because those depositions—properly done—set up the entire case.
The Stark & Stark Construction Litigation Group spends substantial amounts of time and money doing intensive investigations of non-parties and their documents. Disgruntled former employees, competitors and municipal officials can be a fountain of useful information. In addition, representatives of manufacturers of materials that were used on the project often do site inspections that result in interesting meetings, letters, e-mail and other documents that can be extremely useful at trial. Counsel should do plenty of thinking about discovery strategy, because it can turn a valuable case into a gold mine if properly conceived and executed.
We are amazed at the lack of knowledge of many project managers and superintendents we depose. These project managers and their subordinates are entrusted with supervising the work of hundreds of people costing tens of millions of dollars. We typically prepare by learning every nuance of the details and specifications governing the issues in the case. We spend quite a bit of time mastering those details and specifications because we have learned over time that the project managers and their subordinate superintendents typically do not have much understanding of those details and specifications. Devastating testimony can be developed by going through those details and specifications with the project manager and his subordinates. The obvious goal is to elicit testimony from then that enables counsel to put on testimony at trial raising the question: how can you possibly evaluate the acceptability of the work of the subcontractors in a competent way if you do not understand what they were supposed to do?
One final example is worth describing. You never know where your next bombshell is going to come from. That is why we try to talk to as many people who worked the project as possible. We spend a great deal of time and money tracking down missing subcontractors –especially those who are out of business and may have a good story to tell. Disgruntled former employees and subcontractors are a veritable fountain of valuable information about what transpired on a job. We have taken depositions where disaffected subcontractors who were not paid a few thousand dollars and were thrown off the job come back years later at depositions and do enormous harm to the developer-general contractor. For example, in one particular instance, the now- defunct subcontractor responsible for applying the roofs to a series of condominium buildings was upset because he did not get paid his last $20,000 of a contract worth over $1 million. When asked why he did not follow the manufacturer’s installation specifications for installation of ice and water shield and why he failed to use ventilated, pressure treated stirrups to attach the concrete roof tiles, he threw the project manager under the proverbial bus with great enthusiasm. He testified that he pointed out the details and specifications of the roof tile manufacturer to the project manager but the project manager told him to ignore them because the builder did not want to spend the money for these details. He even went so far as to get his ex-wife, who held the defunct company’s records–to give us documents he had that we used to help support his story. The carriers for the roofer and the general contractor eventually threw in their full policies to settle the claims.
It takes years of experience to be able to effectively handle a complex construction litigation case involving claims arising from design defects and /or construction deficiencies. These cases are an interesting challenge and a great deal of fun to handle. There is nothing quite like being the plaintiff representing completely innocent, totally victimized clients in a complex case involving tens of millions of dollars in claims and appearing at depositions, court hearings and trial with 50 or more lawyers arrayed against you. The fact that your clients had nothing to do with creating any of the construction n deficiencies and design defects in question gives you a powerful moral and legal advantage over the defendants. Careful thought, planning, preparation, use of the right experts, and lots of hard work and hopefully some good luck can get you a result that is emotionally fulfilling and financially rewarding for both your client and your firm