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Never Lose Hope


תאריך פרסום קודם: 
2003

The testimony in the courthouse constitutes an irreversible event, which creates an “on the spot” the impression, for good or for bad. Moreover, the testimony is being continuously documented. Every word is written in the court protocol. The examining lawyer who is the opposing lawyer will strive in no small measure during testimony to present the person being examined in a negative light, and after the testimony this lawyer will analyze the protocol with one clear aim in mind, to dispute the evidence.

The opposing lawyer is usually well trained in investigating witnesses and well versed in the secrets of the court arena since the subject of investigation and the refutation of evidence on the basis of his profession and as an integral part of his work routine but all this is usually very foreign to the witness being investigated.The arena consists of the judge who sits on his raised podium, raised from the people literally. In the center of the arena stands the “victim” that is the witness, attacked with a scurry of questions. This arena bears a great deal of similarity to a boxing ring, where one of the competitors knows the rules very well (in this case the investigating lawyer) and the other does not know them so well. Furthermore, the competitor who knows the rules (the lawyer) has the right for the first strike at the beginning of each round and usually the sympathy of the judge is given to the one who knows the rules; the one who has the right to strike first. And they accumulate points.*****In 1987 I examined some apartments in Ariel, and a few years later I was required to appear in court to defend a professional report I had written following that examination.      To oppose my report a counter report by a more experienced engineer had been submitted and this opposing report completely negated my findings. The examining lawyer

was assertive, blunt and self-confident.  He tried several ways and with notable obstinacy to defame me, even before starting to examine me on the professional level. The judge did not interfere and allowed him to act freely in this direction. I found myself on the defensive and denying allegations for a long time, which should have damaged my moral or even make me lose my balance. I certainly did not accumulate a single credit point! At one stage, the lawyer presented me with a document which was supposed to prove that I had received my salary as a percent of the results of the verdict, which according to the opinion of my examiner was against the rules of ethics. Even though in response I presented to the court an authorization from the Board of Engineers and the Board of Lawyers which allowed me to obtain my fee as a percentage of the financial results that would be decreed, the continuous discussion on my fee and other personal issues apparently gave a not insignificant preliminary advantage to my energetic examiner. The general atmosphere which then prevailed in the court was not in my favor; the mere idea that my fees are dependent on the monetary results of the verdict raised the suspicion that I intentionally exaggerated the prices, and even “invented” non-existent defects. Finally the essential professional issues were raised. In total this testimony went on for eight hours on two different occasions and was extremely stressful.

Even though I took all the correct steps I completed giving both parts of the testimony,  (as was said for four hours continuously), physically exhausted, but, with elevated spirits. I had the feeling that after every question I was moving one small step ahead in accumulating points by way of my answers.  My mood improved slowly and steadily.

In the verdict (Civil Case 9342/87)[1] the judge devoted a separate chapter whose heading was: “The Report of Engineer Ben Ezra” which included a summation relating to the lawyer who had tried to reject my report out of hand. The summation of that chapter was as follows:

The T/29 presented the opinion of the chairman of the ethics committee of the Board of Engineers from which it is apparent that the agreement between the plaintiffs and Mr. Ben Ezra does not deviate from appropriate behavior for an engineer and therefore he shall not be disqualified. [. . .] Having said that and in light of the fact that the fee of the expert will be calculated as a percentage of the claim, the report should be dealt with in an extremely cautious fashion, and this is what I intend to do.

 

     As was pointed out above my report and my testimony were examined under a “microscope.” The verdict continues by discussing in detail different building defects including barriers not conforming to the standard, defects in sewage, defects in carpentry, width of hallways and internal stairs both of which did not conform to regulations, a shelter built against regulations, shortcomings in ventilation, sanitary problems and so on. The judge awarded for the plaintiffs on most items.

     There follows the reference of the verdict to several main defects:

·        In the rear part of the plots where there was a drop of more than one meter the contractor installed a chain link fence only. My claim was that he should have installed a barrier built according to Israeli Standard 1142. The representative of the contractor claimed that the standard did not apply to areas outside the apartment and therefore it was not the responsibility of the contractor. At the end of the day the judge decreed, “the outcome is that I instruct the defendant to pay in each case the sum of 2,102 shekels linked to the value of the day Mr. Ben Ezra’s report was written.”

·        According to my claim the construction of the internal staircase in the apartments of the plaintiffs contradicted the regulations. A fact which was denied. The court debated the issue and at the end of the day decreed on this item: “The repair of the structure of the staircase should be calculated according to the suggestion of Mr Ben Ezra for the sum of 7,200 shekels which shall be paid by the defendants to the plaintiffs in each one of the cases, linked to the value of the day of the report.”

·         I claimed that the ventilation of one toilet was through a loft and not direct to the outside. The opposition again denied this claim but the court similarly accepted my version on this item and awarded the plaintiffs 2,510 shekels, again, linked to the value of the day of the report.

      And so it continued through a long list of defects, a large number of which the judge preferred in her verdict the findings in my report including adopting my costs, which I had faithfully estimated, and professionally defended in my testimony in the court. Moreover, when the defendants appealed against this verdict their appeal was rejected apart from some small calculation corrections.

     At the end of the day each resident received approximately 100,000 shekels. This award was substantial, especially considering the low cost of the apartments, (which were in the development town of Ariel), in the first place. The claim that there is not relationship between the cost of the apartment and the cost of the required repairs was dismissed, amongst others, after proving the costs in the extended examination one by one, and also in light of the fact that to make the internal stairs conform to regulations, (and also the hallway), it was necessary to demolish them and rebuild them, it is apparent that demolition plus rebuilding costs more than repairs. The main lesson learned from this case is that it is not necessary to give up too quickly and persistence and consistence frequently pay.

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As a witness, including an expert witness, you enter the arena with a deficiency of points. Even if this disadvantage apparently increases do not lose hope. Do not lose your nerve but continue calmly since it is not possible to know what the judge thinks, or how the protocol will appear in his/her eyes following a period of time, when s/he comes to write the verdict.

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[1] Civil Case 9342/87 Frind and Others versus Eliav Ltd. Details of this case, which was judged in Tel Aviv Magistrates Court by Judge Dr. D. Pilpel, can be found in  Planning an Apartment According to the Law by A. Ben Ezra: Boursi.  

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