DISCLAIMER: THE INFORMATION CONTAINED HEREIN IS SOLELY FOR EDUCATIONAL PURPOSES. IT IS NOT LEGAL ADVICE OR LEGAL AUTHORITY AND IS ONLY THE AUTHOR’S INTERPRETATION OF INSPECTIONS AND SUBPOENAS IN CONSTRUCTION LITIGATION IN NEBRASKA.
Sarpy County has consistently been one of the fastest-growing counties in Nebraska. With growth comes the need for development and construction. Inevitably, there will be issues with construction that lead to litigation. In Part Three of this five-part series, Adams & Sullivan, P.C., L.L.O. will inform you of the inspection and subpoena process throughout construction litigation in Nebraska.
Part 3: The Process of Inspections and Subpoenas in Construction Litigation in Nebraska
Construction litigation often stems from work that has allegedly been performed in an unworkmanlike manner. When this is the case, it is common for each party to conduct inspections and issue subpoenas to gather evidence to support their position.
An inspection is likely conducted by a person who will be considered an expert witness, as discussed in Part 1 of this series. A subpoena is a document served at the request of either the plaintiff or the defendant requiring either a third-party to produce documents as specifically requested in the subpoena, or a person to appear and provide oral testimony. This post from Adams & Sullivan, P.C., L.L.O. dives into the process of inspections and subpoenas to provide a better understanding of each and emphasize the important role they play in construction litigation.
Inspections
The Process
Inspections are carefully scheduled by and through the legal counsel of each party. Upon request by a party’s counsel, permission may be granted to allow inspections to take place by inspectors. In the event permission is not granted, a party may obtain an inspection via subpoena. The individuals who perform the inspections on behalf of each party will likely be designated as expert witnesses to later testify to the results and findings of the inspection at trial.
It is important to have an experienced attorney, such as those at Adams & Sullivan, P.C., L.L.O., evaluate the knowledge, skills, and reputation of the inspector chosen to inspect on your behalf, as their opinion will play a role in determining the outcome of the case.
The Timing
The timing of inspections is imperative. Inspections should be conducted in the early stages of litigation to provide the most accurate depiction of the allegations asserted in the suit. Any remedial work should be delayed until each party to litigation has had adequate time to schedule and execute an inspection of the work completed, or lack thereof. Photographs and video evidence should be obtained as soon as possible in order to preserve the condition of the work, or lack thereof, as litigation can take years.
Inspector Selection Process and Importance
It is important to select an inspector who has credibility in their field with knowledge and experience in the subject matter because their opinion will have a great effect on the outcome of the litigation. The inspector will likely become an expert witness to testify to their findings, so ensuring that they are experienced and reputable is key. Their testimony will be scrutinized by the opposing party, the Judge, and possibly a jury. Working with a knowledgeable attorney from Adams & Sullivan, P.C., L.L.O. ensures you have the right professional representing your best interests.
Subpoenas – The Process
There are two types of subpoenas – a subpoena duces tecum and a subpoena to testify, both of which are important in construction litigation. Nebraska Supreme Court Rule §6-334(A) governs the rules of subpoenas.
A subpoena duces tecum is used when a party desires to obtain documents from a third party. Counsel of either the plaintiff or defendant can or cause to be served a subpoena upon a third party, wherein the third party will be allowed a certain period of time to produce documents as requested. The issuing party must be specific in their request for documents. Examples include banks for statement records, suppliers for purchase or delivery receipts, or city offices for building permits or inspection reports.
A subpoena to testify is used when a party desires to summon a third party to testify, typically at trial and/or deposition, regarding the issues giving rise to the litigation. Subpoenas to testify require the receiver to appear at the location on the date and time specified in the subpoena. This type of subpoena can be helpful in enticing reluctant but important witnesses to testify. Additionally, subpoenas may be used to require the receiver to allow an inspection, test, or sample to be conducted.
Attorneys at Adams & Sullivan, P.C., L.L.O. have extensive experience managing both types of subpoenas to ensure compliance with Nebraska law and to strengthen their clients’ cases.
Conclusion
Inspections and subpoenas are important tools frequently used to gather evidence in support of a party’s position in construction litigation. It is essential to have an experienced construction litigation attorney ensure that inspections are properly conducted by reputable inspectors and that subpoenas are issued in accordance with Neb. Sup. Ct. R. §6-334(A). The attorneys at Adams & Sullivan, P.C., L.L.O. provide skilled legal guidance for clients, whether owners or contractors, to protect their interests throughout the litigation process.
About the Author
Travis M. Jacott
Adams & Sullivan, PC, LLO
Travis joined Adams & Sullivan in 2015. His practice focuses on litigation, real estate development and transactions, municipal law, and estate planning.
During his time at Adams & Sullivan, P.C., L.L.O., Travis has assisted with numerous matters, including extensive legal research and preparing legal briefs filed in the U.S. District Court for the District of Nebraska and the Eighth Circuit U.S. Court of Appeals.
Growing up in Sarpy County, Travis M. Jacott earned his Bachelor’s degree from the University of Nebraska-Omaha and graduated from Creighton University School of Law before being admitted to practice law in Nebraska.