On 4/3, Vince Mrykalo wrote, in part: >I am no lawyer, but it is *not* speculation as to how >that plate broke! Also, who cares whether it's a >Steinway or a Winter spinet? It's still not the >technician's fault. Vince, I must respectfully disagree. Without an examination of the plate before or after the event, testimony by a witness as to the causation of damage to the plate is speculation and insufficient under applicable rules of evidence. This is not to say that Marcel's friend won't prevail if the plaintiff cannot meet his burden of proof. But if the plaintiff hires an expert who looks at the plate and testifies that it broke as a result of the tech's work, the requisite burden will be met and will prevail unless the tech has sufficient factual and/or expert evidence to rebut plaintiff's case. Remember, Marcel worried: >Now he is asking me to testify as to the plate probably was >faulty to begin with. I wasn't there so I have no evidence. The key words Marcel used are "probably" and "I wasn't there so I have no evidence". Ergo, my key word - "speculation". An arbitration panel composed of yourself, Les, and Newton or three other stalwart Pianotechs might well find in favor of the tech after a hearing. But arbitrators are not bound by the rules of evidence. Arbitrators don't have to give a reason for their award or rule as to whether evidence is admissible or not. However, a court is bound by rules of evidence (even though small claims cases usually abide by a slightly relaxed "substantial justice" standard). Whether the piano is a Winter or a Steinway makes a big difference in how this claim is approached. A similar claim involving a Steinway wouldn't be in Small Claims Court. And the potential liability would certainly require a competent attorney and expert witnesses, as well as full discovery and inspection before trial. Much more money at stake, although the basic factual and legal principles are similar. Marcel's friend might not then be thinking about defending himself bare-bones or asking Marcel to testify without personal knowledge about what "probably" occurred. My opinion is unchanged. Don McCallion - don@ct2.nai.net New Milford, CT
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