Preparing to Give a Deposition

Civil Engineers Often Required to Defend Clients Through Depositions

Oct 1, 2009 David Todd

Lawsuits are unfortunately a frequent aspect in development and construction. The civil engineer will be called on to testify. Proper deposition prep is important.

A civil engineer hopes to be able to sit at a desk, behind a state-of-the-art computer system, and work in relative simplicity. However, civil engineers are often involved in lawsuits. So much of civil engineering involves construction, or the pre-planning of future construction, and construction is a litigious business.

All too frequently the engineer’s client is being sued, or someone is suing over construction issues. The engineer will be called upon to testify as to the facts of the project.

Or the engineer’s work maybe called into question and the engineer may become the source of a lawsuit. Claims of negligence, incompetence, fraud, etc. may result in the civil engineer being a party to a lawsuit and having to defend himself.

Also, issues concerning non-payment by clients can result in the engineer being the plaintiff in a lawsuit rather than the defendant.

Purpose of a Deposition

It is common practice for the attorneys for each side in the lawsuit to learn what witnesses for the other side intend to testify concerning. The opposing attorney will want sworn testimony from the engineer. For example:

What happened during the project?
Why did the engineer make that decision?
Why wasn’t a different decision made?
What criteria did the engineer use for decision making purposes? What are the references used?
What does this or that document mean?
The attorney is trying to come to the facts of the case to evaluate how strong his client’s case is, but also wants to probe how well the engineer will do on the witness stand, under both direct- and cross-examination.

The deposition becomes a tool in the attorney’s hand. Months later, when the trial actually takes place and the engineer testifies before the court, the attorney may use the deposition testimony to impeach the credibility of the engineer.

Sequence of a Deposition as it Related to Deposition Prep

Deposition testimony is given under oath. A court reporter will be present, and the witness is sworn in. The opposing attorney begins questioning. The attorney for the engineer’s side will be present, and can object to any question asked. However, testimony proceeds in a different manner than in a typical courtroom proceeding.

In a case involving civil engineering, documents are frequently a focus of a deposition, since the opposing attorney wants to know what a document is and how it might help his side.

The attorney for the engineer’s side may ask questions, or may elect to save most of his questions for the trial rather than give his strategy away.

Research in Preparation for a Deposition

When the civil engineer must provide in support of a client, or in support of himself (as opposed to testifying as an expert witness), a key element of preparation is research. The engineer will be asked what happened during the project or the time period in question.

That often happened long enough before the day of the deposition that quick and full—or even partial—recall or events and activities will be difficult. So research to refresh the mind is essential.

When preparing to testify about past events, checking the following items can aid recall.

Design Drawings: It is best to review all drawings in the project file, to become familiar once again with the project. This includes not only the drawings applicable to the issue of the lawsuit, but also previous versions of those drawings and related drawings.
Specifications: If the lawsuit is over a construction issue, most likely construction specifications are involved. Review these either in detail or by scanning as the situation warrants.
Correspondence: Correspondence (both paper and electronic) are a log of sorts of what transpired during the project. It shows specific dates for activities.
Telephone Memos: If key telephone calls have been summarized in a hand-written or typed memo is a powerful indicator of interaction. Review these if available.
Diaries: The engineer should re-read whatever type of log of daily activities is kept, as a memory refresher. This includes to-do lists, if these have not been discarded.
Timesheets and Expense Reports: If daily diary records are not available or are not very complete, timesheets and expense reports (if the project included such) are a way to demonstrate that the engineer did work on the project on certain days. These might assist recall.

Advice of Legal Counsel is Important Preparation for a Deposition

These are key building blocks for aiding recall of specific project activities. At times, however, the deposition may get into technical reasons behind decisions made. Most civil engineers have a good grasp and recall of engineering principles and science behind their technical decisions, including instant recall of many formulas and parameters needed in daily activities.

Other formulas, parameters, and principles are used less often. To be able to testify honestly and fully about these decisions, review of textbooks, design guides, reference manuals, and example calculations.

The attorney for the civil engineer’s side will give specific instructions on preparation, and would supersede recommendations given in this article. The attorney may prefer little preparation by the engineer as a legal strategy.

As always, seek and follow the advice of counsel.

The copyright of the article Preparing to Give a Deposition in Engineering is owned by David Todd. Permission to republish Preparing to Give a Deposition in print or online must be granted by the author in writing.

Deposition Testimony is a Court Proceding