"If You Win You Lose"
The advice I always give anyone considering legal
That spring there were several more depositions. Baxter deposed Murdock for five hours on April 27, and over the next few days Pierce deposed Russell, Banks and Ralph, the contractor. First, as they say, the good news. Shortly after Banks's deposition Pierce called Tom to discuss a possible settlement, admitting (for the first time ever) that the insurance company had an obligation to fix the entire house. When Tom called to report on Pierce's overture our immediate reaction was negative. Pierce had made no specific offer, only a general proposal to "fix the house." No legal fees, no expert fees, no move-out costs, no apology for pain and suffering.
Larry was vocal: "Tom, they're liars. We don't trust them. We're going to trial. Where was Pierce eight months ago? And besides, why should we move twice?"
Larry had a point. They had jerked us around for over a year and now, for reasons known only to Pierce, we were to be jerked around some more with half-way offers.
"Larry, just consider it," said Tom. What would you say if they paid for everything. Would you be willing to have the house fixed?"
"Tom, if they paid for everything, if they made us whole, and that includes legal fees, we would have the house fixed rather than go to trial. Of course we would. We know we can lose with a trial. But Tom, they're not honorable men. They're just trying to postpone the trial. They have no intention of fixing our house."
"But you and Ruth would consider having the house fixed if they agreed to do it, under our conditions?"
"Yes, if that's the only choice we have." Tom promised there would be further discussions with Pierce.
Now the bad news. A few days' later Tom called to report that Ralph's deposition "was a disaster," and that he would not be a good expert at trial. Twelve long months had passed since Ralph had provided his estimate to fix the house. On several occasions we had asked Tom to call in other builders, not so much for other estimates but simply to buttress our claim that the house was poorly built and needed extensive repairs. One such occasion was in January 1988. Tom, Charles Banks and Sam Russell were at the house discussing arcane points of engineering and beam construction. Our lawyer was still skeptical about the sloping floors (this was before Mr. Noble came in to prove it with rod and level). "For god sakes," Larry remarked, "get some builders in here! All this theoretical discussion is mostly beside the point. The floors slope! Any builder can tell you that."
"You're way ahead of yourself," Tom answered. "We have to prove what we're claiming," by which he meant we had to have hard engineering data.
"I agree, Tom, but aren't we missing a major point of this case? We didn't get what we paid for. That's something a builder can easily tell a jury."
"When did you go to law school?" Tom shot back.
`When did you lose the total equity in your home?' Larry thought to himself. What's the use of arguing with your own lawyer? So Tom never did ask another builder to see the house. And now, a week before trial, Tom called to say that Ralph the contractor was "blown away" at his deposition.
"None of his figures made sense. He couldn't show how he arrived at $102,000 to fix the house. He included some figures twice, and his numbers simply didn't add up. It was a total embarrass-ment."
"My god," Larry said, once again feeling the pain of total defeat when victory should have been ours months ago, "What are we going to do?"
"We're going to continue Ralph's deposition next week. In the meantime I'll work with him to try to clean up his figures."
"Tom, does it really matter all that much? They've admitted the damage. They don't have any estimates of their own. They don't even have any experts! Why can't Ralph just go to trial and say it cost $75,000 to fix. The damage is there for anyone to see. A jury would believe him."
"Larry, it doesn't work that way. Pierce will get up and say, `Mr. Contractor, you're aware these men are being sued for repairs that are needed to the Martins' house? You're aware that the outcome of this trial depends on how much it will cost to fix the house? Now, could you please explain your discrepancy between the figures you supplied in April 1987 and the figures you're telling us now? Could you please explain why it cost $40,000 more to fix the house in April 1987 than in April 1988?' Larry, he'll look like a fool."
In short, according to Tom, Ralph was not a believable expert. Tom had to work on him, and fast, so he could salvage his estimate for the trial. There was no time to call in another builder. We never suspected Ralph's testimony would be a problem (and do not believe it would have been had he actually testified). He has a fine reputation as a contractor and seemed quite sure of his first estimate. Tom met with Ralph on May 7 and the contractor's deposition continued on May 11. Tom didn't call that day but instead came over to the house on May 12, as we had planned, to go over trial preparations. When he walked in we saw the bad news on his face.
"Let me explain what happened with Ralph," he began. "I met with him for several hours before the deposition, and went over everything. I gave him a detailed list of what needed to be fixed. But he blew it. They ripped him apart."
Tom explained what happened. Ralph had included some items twice in his calculations, such as an estimate to paint each room individually, then another estimate to paint the entire house. Other repair items didn't match up with the defects listed in Russell's letter. On one occasion Ralph made reference to a subcontractor's estimate which could not be substantiated. And so on. Imagine our situation, only four days before the trial. We have incurred an estimated $50,000 in legal and experts' fees. Our legal position is strong and we have a structural engineer and architect ready to testify. To wrap up the case (according to our lawyer) we just need a contractor to state how much it will all cost to fix. And Tom is telling us that our expert contractor's estimate, which we've had for the past 12 months, won't stand up in court.
Larry and I were numb, not so much from Ralph's deposition as by Tom's reaction to it. He did not think we should go to trial! "Let me explain my thinking at this point." Tom pulled out a diagram from his brief case, drawn on a yellow legal pad. It showed all the possibilities, which he summarized as follows: "If you lose you lose. If you win you lose." We could lose recision and the jury could then award a nominal amount to fix the house, but no legal fees, no punitive damages. We could win recision, but it would surely be appealed and tie us up for another two years, with no guarantee of the eventual outcome, except continued legal fees. They could offer to fix the house toward the end of trial, but if we accepted we would be down the legal fees incurred at trial. Worst of all, Tom felt we could lose the recision case with Ralph's testimony.
"Here's what I'd like to do," he said. "I'll call Pierce tomorrow, and tell him the Martins are definitely interested in having the house fixed, and that we should postpone the trial to discuss the matter further. Then we'll proceed with a settlement discussion if he's sincere. In the meantime I'll get at least two other builders to come in and give estimates that'll stand up in court."
"What if the Judge doesn't go along with it?" The trial had already been postponed once and was definitely on the docket for Monday, May 16.
"Then we go to trial Monday morning."
Two and a half hours later Tom left our home. We had suffered miserable nights because of this house but that Thursday night, May 12, 1988, was one of the worst. We each got only a few hours sleep.
Friday, May 13, was confusing. Pierce readily agreed to a delay, but the Judge couldn't be reached (he was away at a conference.) A message was left with his bailiff but no decision was reached. Pierce was supposed to get back to Tom that afternoon but never did, and by 7 P.M. Tom was unsure of what was happening. He called from his car phone to tell us of the non-events. "I have a bad feeling about these people," he said. Larry's response was reflexive: "Welcome to the club." On his way home Tom dropped off Murdock's deposition. We read it that same night and found no major surprises. Murdock admitted we were never abusive to him or his workmen (thus con-tradicting Cooper's testimony). He glossed over the hell he had put us through a year earlier and mis-remembered a few facts, but nothing major. He certainly did not come across as vindictive and irrational as had Jake Cooper. Mostly his testimony reflected our perception of him: a weak builder who neither understands house construction nor accepts full responsibility for his mistakes.
Since Larry was to testify the following Monday, over the weekend he re-read Cooper's deposition, plus all the letters we had sent to Murdock and Cooper a year earlier. It was painful to relive the frustration and aggravation we experienced before we ever hired a litigator.
The trial would cost us another $15,000-$20,000, depending on how long it lasted. Our $70,000 in expenses, added to at least $60,000 for the other three defendants, meant that over $130,000 would be expended before any judgment was rendered. The house could have been fixed a year earlier, we now knew, for under $100,000. We were up early on May 16, and wrote the following journal entry before leaving for the Justice Center: