The unit owners in your condominium have been noticed for deposition in the pending transition litigation. Now they have come to you, the property management team, with questions. What should they expect at the deposition? What kinds of questions can they be asked? Did they do something wrong? Will they have to testify at trial? While these are all terrific questions, there is no reason for unit owners to stress over the fact that they will be deposed.
The first question in unit owners’ minds is usually, 'Why am I being deposed?' The answer varies depending on the particular circumstance, but unit owners are typically deposed because they reported some issue in their unit, or with the common elements that the defendants wish to further explore. Most unit owners will not have been deposed before, and may be wondering what the process entails. Essentially, a deposition is a question-and-answer session between an individual and opposing counsel in a lawsuit before trial. Its primary purpose is to develop the factual record for trial. In a transition litigation, the attorney (or attorneys, depending how many parties there are in the case) will ask the unit owner a series of questions which she will need to answer to the best of her ability.
Although depositions often occur in attorney’s offices or other locations outside the courtroom, everything the unit owner says is under oath as if she were sitting in a courtroom at trial. For that reason, it is extremely important that unit owners tell the truth at their depositions. The facts are the facts. Although unit owners may be tempted to exaggerate their testimony in a misguided attempt to help the association’s case, the reality is that doing so can only hurt the association. Any inaccurate or contradictory testimony given during a deposition can be used to impeach that witness at trial, which will hurt that witness’ credibility and ultimately undermine the association’s case. The bottom line is that there is nothing for a unit owner to be stressed about, because their only obligation is to tell the truth.
It is important for unit owners to understand that in a transition litigation, the case typically comes down to a 'battle of the experts.' The association’s expert will opine as to the cause of the construction defects being alleged, who is responsible for those defects, and how much repairs will cost. The defendants – meaning those responsible for the design and construction of the condominium – will have their own experts to refute the association’s expert(s). The testimony of a unit owner, however, is typically limited to observing the symptom(s) of a defect, such as a leak or a crack. This could be compared to a medical malpractice case, where an injured plaintiff may testify about the symptoms they're suffering from, but ultimately would not provide an opinion as to the cause of those symptoms. That testimony must come from an appropriately qualified expert.
The same holds true for construction defect claims. Because their lay observations of defects in their own units or in the common elements do not qualify as expert opinions, under normal circumstances a unit owner's testimony should not make or break the association’s case, and offers little in the way of cause, responsibility or the appropriate manner in which those defects should be repaired. Thus, while a judge or jury, as the case may be, will have to consider and compare all of the testimony in ultimately deciding the case, the weight of the testimony considered is that of the experts.