And They Built A Crooked House, by Ruth S. Martin
PART IV: WE ARE JERKED AROUND BY THE LEGAL SYSTEM.
THEN JERKED AROUND SOME MORE.
Depositions - First Round
A man is not honest just because he has had no chance to steal.
Baxter deposed four people on January 12 and 13, 1988: Nelson, Cooper,
Rabin (Nelson's expert) and Anderson (the insurance com-pany's).
Because these four took longer than expected, Murdock's deposition was postponed
(he was not deposed until April 27, 1988).
Depositions are question and answer sessions taken under oath, before a
legal stenographer. They are routinely used by lawyers to discover strengths and weaknesses of
a case before it gets to trial. Legal counsel for the plaintiff `deposes' or questions
defendants and their experts, and defendants' counsel deposes plaintiffs and their experts.
A lawyer representing the deposed witness may `object' to any question, and instruct
his client whether or not to answer it. These objections become part of the record,
and may determine what evidence is actually presented in court.
(Depositions take anywhere from one hour to several days, de-pending on the
complexity of the testimony and the `pickiness' of the lawyers. No matter how long
they take each deposition is trans-cribed word for word. Our bill for these four
depositions, which was just for the court reporter's time and printing of transcriptions,
came to $1509.)
One use of depositions is to learn answers to questions before they are raised in
court. The first rule of trial lawyers is never to ask a question in court to which
you don't already know the answer. If the witness changes his answer the deposition
can be quoted and the testimony discredited. (This is the theory; as we would later
learn, reality in the courtroom is very different from theory.)
We reached one of our lows the evening of January 12, after Baxter called to
report on that day's depositions. After pleasantries Tom said: "Ruth, what would
you say if I told you the floor in the foyer doesn't slope?" During the deposition
Rabin had convinced our attorney, with some engineering mumbo jumbo, that the foyer
floor only "dipped" from the way tiles were laid, and that structurally it "did not
slope." Baxter somehow thought that Rabin's opinion, if true, weakened our case.
I was appalled by this semantic nonsense. What did our lawyer mean? The floor
slopes! Who cares WHY?
|FOOTNOTE. Ironically, the Judge had toured
our home only four days earlier, on January 8, accompanied by Baxter, Sloan, and
Russell representing our side, and Webster, Collins and an associate of Pierce's for the other side. We were told not to be there. That same evening Baxter called to report that the Judge found sloping floors "everywhere," even in areas we had not complained about. The Judge also noted the general sloppiness of the finish work, particularly in the master bathroom. Despite these judicial observations, gratifying to us at the time, we knew the case would still rest on legal maneuvering and expert opinion. Obviously we couldn't use our judge as an expert witness.|
When Larry came home he found me a basket case. He thought I had misunderstood
Baxter so he called him at home. Larry was told the same thing.
"Tom, I just don't understand," Larry said. "What do you mean the floor doesn't
slope? This is like Orwell's 1984. `War is Peace', `Slavery is Freedom'. Don't
you understand what this case is about?"
My husband's voice rose and I motioned him to control himself. He continued
speaking, a little calmer.
"Tom, it doesn't matter anymore the exact cause of the defects, or whether it
cost only fifty or one hundred and fifty thousand to fix our house. This case is
larger than the specifics of what's wrong with the house, or why the floors slope.
You're getting too bogged down in details."
Baxter was not intimidated. "Dammit, Larry, the details are important.
You have to prove what's wrong with the house."
"Fine, I agree," Larry said cautiously. He certainly didn't want to alienate
our lawyer. "But how much do you have to prove wrong? We contracted for a new,
custom-built home and we got garbage! It just doesn't matter why the floors slope.
They slope, and that's not normal! Look what we've been through. Look how much
damage everyone does agree to. Even the Judge saw it! Look what we're spending
just to get these guys to admit the obvious. We can't sell our home because of
the sloping and all the other defects! Is this what we contracted for? Tom,
can't you see what this case is all about?"
Tom was right about the importance of detail in a legal case, but Larry was
right also. A sense of perspective was missing. The defendants were arguing
the case as if the structure they built was a warehouse. This was our home!
Eventually Larry and Tom agreed on mutual goals and the conversation ended
amicably. Tom would continue to gather as much detail as feasible to prove our
case and get back to us afterwards.
Larry and I rehashed the conversation with Baxter. "What does Tom mean
`The floor doesn't slope'? This is crazy," I said. "It makes no sense, no sense at all."
I was devastated. More than ever I felt abused by these incompetent,
uncaring, self-centered men who built our house and who were now hiding behind
lawyers and no-nothing experts. I began sobbing. "Larry, I can't take much more of this. It's not fair! Why are they doing this to us?"
We felt depressed, oppressed, powerless. Should we hire another lawyer to supplement Baxter? He seemed to be bogging down in details and losing the essence of our case. Tom seemed too analytical, too cold. Perhaps, we thought, he needed help from a gut-fighting plaintiff's lawyer, the kind who can convince any jury on the emotional issues alone.
* * *
On January 13, 1988 Baxter deposed Cooper and Nelson, but he didn't call that night.
On January 14 he called Larry at work. This time the news was better. And so was Baxter.
"Jake was a gold mine," Tom enthused. "A real gold mine." At first Larry thought
he meant rich, as in money. No, he meant that Cooper's defense was so absurd as to be
almost perfect for our case. Cooper's reason for never responding to us or our lawyers?
He didn't like the way Larry handed over the $50,000 check to his wife! Then came
a pleasant surprise. Regarding the conversation two nights earlier, Baxter said:
"You were right Larry, this case is larger than the specifics of what's wrong with
the house. You contracted for a quality home built to acceptable code, and you didn't get it."
"What happened two nights ago?" Larry asked.
"I got sidetracked by Rabin. You don't deserve what Jake's done to you.
He washed his hands of you the minute you handed his wife that check. You never had a
chance with him. The Judge will be appalled by Jake. There's more than enough here
to warrant recision."
When Larry reported the conversation to me that evening I felt a sense of
overwhelming relief. I had become almost incapacitated by anxiety anxiety over the
defective house and our unending legal and financial nightmare. I needed a quick fix
and Baxter's turn-around was it. He was on our side after all, he understood our
position. We no longer thought of hiring another attorney.
Transcripts of the depositions arrived about two weeks later. It is difficult
to summarize the individual depositions. Not unexpectedly, they included a mixture
of lies, truths, and half-truths. Nelson's truths served to affirm his incompetency
in designing and inspecting our home. When Cooper spoke the truth his irrational
and vindictive behavior became apparent. (How, or how could we have been so stupid
to do business with him? I am a psychiatrist and was completely fooled. All
the factors we considered as safeguards his verbal assurances, his signed
contract, his son living next door, his large family in the area, his wealth
were a facade for truly sociopathic behavior in our case.)
In the following excerpts all questions are posed by attorney Tom Baxter.
Page numbers are taken from the official deposition trans-cripts.
ANSWERS BY ARCHITECT JAMES R. NELSON IN DEPOSITION, JANUARY 13, 1988
Q. Did you consult a structural engineer in connection with the Martins' house?
A. I did not.
Q. Why not?
A. Because it was a simple house with simple spans, no large expanses of glass, no
cathedral ceilings, no real eccentric types of design elements within the house.
A. It was pointed out to me that on subsequent structural evaluation done by the Martins that those [steel] beams were somewhat undersized and should be supported in the middle.
Q. Did you agree with that?
A. Yes, I did.
Q. And by being undersized and needing the additional support, isn't it a fact that those beams unsupported did not comply with the building code?
A. There was deflection in those that would probably under ultimate loading conditions exceed that allowable by the building codes.
* * *
Nelson did not consult a structural engineer. And he did not design our house to code. Two years earlier he had written us a letter stating proudly that our house was one of his "stronger designs." A year earlier he had written that the sloping kitchen floor was an "optical illusion."
ANSWERS BY MR. JACOB COOPER IN DEPOSITION, JANUARY 13, 1988.
Q. Now, the price mentioned in Exhibit 3 for the construction of the dwelling is $203,000, is that right?
Q. Now that's what Frank T. was going to charge you to build the dwelling that you had agreed to pass on to Dr. Martin, right?
A. That's what he did charge me.
Q. We're talking about the agreement. That's what he agreed to charge you?
Q. Is that right?
Q. And that's what he did charge you?
Q. So you made approximately $50,000 profit on that sale?
Q. Mr. Cooper, I'm handing you what has been marked as Plaintiffs' Exhibit 7 which appears to be a copy of a letter from Larry Martin to you dated January 24 of 1987. Could you please take a look at that and tell me if you can identify that?
Q. Did you contact Larry Martin after receiving this letter?
Q. What did you do?
Q. Okay. This letter of January 24 of 1987 indicates that he was also enclosing his first letter, the letter of December 15 of 1987, right?
Q. And Larry Martin also indicates, he indicates he just received your letter, right?
Q. Probably your letter of what, January 22 asking for the $850?
Q. And he responded to you by saying either you didn't receive our last letter or you did and have responded with extreme insensitivity and callousness. Didn't you, Mr. Cooper, think it was ----
A. He apparently felt that way because he was probably not aware of that whenever I did get a letter from him that I contacted Frank T.
Q. And you certainly never told Larry Martin that you did, did you?
A. I never talked with Larry Martin. You see, I don't think he wanted to talk much with me because when he returned the $50,000 amount of money which I was kind enough to extend to him, he came to the door, rang the bell and pushed it in my wife's hands and left and didn't say hello or good-by or thank you or nothing.
Q. The $50,000 also included interest, didn't it?
Q. Paid you interest, didn't he?
Q. He was kind enough to pay you interest, wasn't he?
A. Kind enough.
Q. Now, Dr. Martin also indicates in this letter of January 24 that he is enclosing a second letter which he has just prepared for you, Mr. Cooper and Frank Murdock, is that correct?
Q. That's what he says there. He also says, and I quote, "You may not feel responsible for these construction defects, but your name is on the contract and the checks were made out to you," end quote. Did you think he was wrong in that conclusion?
A. That was his opinion. I didn't judge whether he was right or wrong.
Q. You didn't think twice about it.
Q. Why is it, Mr. Cooper, that you never thought it appropriate to pick up the phone and call Dr. Martin, the person with whom you had a $307,000 contract with?
A. Because when somebody is nasty, has a nasty personality, in my opinion, then I refuse to have anything further to do with them.
Q. And when was he nasty to you?
A. I thought he was very nasty in coming to the house and putting this check in my wife's hands the way he did. There's little nuances about the way it happened that are difficult to explain.
Q. Well, like what?
Q. Like what, what type of nuances?
A. Nuances that I said are hard to explain.
Q. Well --
A. If I said they are hard to explain, why do you ask me to explain them?
Q. They are unexplainable or hard to explain?
A. Difficult for me with my vocabulary to explain.
Q. Would anybody be able to explain those nuances, like your wife?
A. I don't think so.
(Here our attorney is questioning Mr. Cooper regarding the letter inviting him to attend the meeting at our house on May 12, 1987; Mr. Cooper had ignored the letter and the meeting.)
Q. Do you remember getting this letter and reading that paragraph?
Q. And there was, in fact, a meeting held on May 12, wasn't there?
A. I don't know.
Q. You didn't go, did you?
Q. And you didn't send a lawyer, did you?
Q. You didn't send any type of representative, did you?
Q. And you never indicated to me that you weren't going to be there, did you?
Q. Did you indicate to anyone that you wouldn't be there?
Q. You just didn't show up?
A. I didn't find it necessary to go.
A. Because of the things that are written here are things that you write. I don't necessarily have to agree with everything that you wrote in your letter.
Q. You didn't think it was important to attend such a meeting? Is that what you don't agree with?
A. It wasn't important for me because I am certain that you were having other people there who were more directly involved.
Q. And you didn't consider yourself responsible or liable for any of the problems with the dwelling?
Q. Is that correct?
Q. No, that is not correct or that is correct?
A. It is correct that I did not feel responsibility.
* * *
There was no rational basis for Jake Cooper's attitude toward us or for
his total abrogation of responsibility. His comment about Larry being "nasty" to
Mrs. Cooper is utter nonsense. Jake Cooper's business ethic seemed to be based on
vindictive greed, period. Perhaps, despite having pocketed $50,000 in profit,
he felt cheated and angry that we had not paid him the extra $850 and so was going
to `punish' us for the insult. In truth, had he but responded to our letters or
to our lawyers' letters, and worked actively toward a resolution, the whole affair
would have probably settled without a lawsuit. Instead, he chose to spend many
times $850 to defend his breach of contract.
ANSWERS BY MR. MITCHELL ANDERSON, EXPERT FOR THE BUILDER'S INSURANCE COMPANY, IN DEPOSITION JANUARY 12, 1988.
Pages 7 and 8
Q. Have you been actively involved in construction management for residential dwellings over the past five years?
A. Not for residential dwellings.
Q. Have you ever been involved with any kind of a building in Emerald Heights previously, to your recollection?
A. Not to my knowledge.
Q. Okay. You were retained to look at the Martin residence on behalf of Frank T. Construction and Frank Murdock, were you not?
A. I was originally retained by the [Insurance Company], Mr. Don Henderson, to look at the home.
Q. And [the insurance company], do you know who [they] insured?
A. I did not initially know that. I, of course, became aware of that since then, yes.
Q. And who does [the Insurance Company] insure?
A. Frank T. Construction and Frank Murdock.
Q. Do you remember what Mr. Henderson first told you when he first contacted you?
A. Just that he had two homes in Emerald Heights that had some problems. One was the Martin residence, and one immediately next door, which I think is owned by Cooper. I initially looked at the second of the two, the Cooper residence.
Q. And what did you look at in the Cooper residence?
A. There were some problems with shrinkage cracking in the basement walls. That was the extent of it.
Q. And did Mr. Henderson ask you for your opinion with respect to those cracks or cause or remedy for them?
A. He asked me what was my recommendation, and I recommended, if I recall, that the exterior of the walls, that the cracks be excavated, and if there was any problem with the waterproofing, that it be repaired. I believe that was done.
Q. Did you observe any cracks in the basement of the Martin residence?
Q. Were they similar to the cracks that you observed in the Cooper residence?
Q. And would you recommend the same type of remedial action for the Martin residence as you recommended for the Cooper residence?
A. Basically so, yes.
Q. Have you made that recommendation?
A. I have not made any recommendations as to repairs, to my knowledge, on this particular dwelling.
* * *
Although our basement had the same problems as the one next door, at no time was any offer made to fix it. Anderson's deposition continued:
Pages 9 and 10
Q. Okay. Now, you have visited the Martin residence?
Q. How many times?
A. I have been there twice, to the best of my knowledge.
Q. Did you observe any -- did you observe anything that you considered to be reflections of construction problems?
A. I observed the fact that there were some areas of the kitchen, dining room, family room that there were some doors missing from their openings and some unfinished drywall.
Also, some problems with various finish problems with bathrooms, and I believe some exterior loose nails, and some staining that occurred on the exterior.
Q. Did you observe any sloping in the laundry -- of the laundry room floor?
A. No, because the laundry room floor was unfinished, and I couldn't determine anything as to that area.
Q: Okay. Did you observe any sloping of the foyer floor?
Q. Did you observe any sloping of the family room floor?
Q. Did you observe any sloping at all in the residence?
A. Not to my knowledge, no.
Q. Did you observe anything in the residence which would lead you to believe that there may have been a problem with the structure of the dwelling, the structural design?"
A. Not that I can recall personally, no.
Q. Were you called upon to review the structural design of this dwelling?
A. I was not.
Q. Did you?
A. I did not.
* * *
Anderson was the only expert (to our knowledge) ever retained by a multi-billion
dollar insurance company whose client was being sued for incontestably faulty construction.
Did someone at the insurance company make a conscious decision not to thoroughly investigate
our claim? We'll probably never know. In any case, sloping of the floors was subsequently
proved beyond doubt and Anderson was never called to testify in court.
-- continued --