Want To Be an Expert Witness? Careful What You Wish For!

Background - How a Lawsuit Begins

Home inspectors live in terror of phone calls from lawyers. Well, most home inspectors. I do a fair number of inspections for lawyers for their personal purchases. They are detail-oriented and precise, and I enjoy working with them. Still, there’s a bit of a gulp when you find out that the attorney does not want to schedule an inspection. Instead, litigation is under way. In this case, the lawyer that contacted me needed an expert witness. The case, he explained without going into details, involved a local inspector which meant there would be blow-back from the community. Would I be willing?

I tentatively agreed subject to reviewing what they had - I won’t work as a witness in a case I do not believe has merit. I asked how the lawyer had heard of me - this isn’t a service that I’ve advertised. In this case, the lawyer had sent queries around, and my name was mentioned by several attorneys in the region as someone who had done outstanding research work in previous cases and was very solid on the stand. (Pro tip: be prepared and tell the truth - it’s just not that complicated.) There was a second industry recommendation, but we’ll get to that a bit later below.

And, honestly, my first reaction, once I heard the name, was to think that the plaintiffs were mistaken. The inspector named in the suit (no, I’m not sharing it - if you are that curious, my deposition is part of the public record as are the other pertinent details of the case including names) is a very experienced inspector. No way he would make a mistake egregious enough to warrant a legal action.

Every inspector has a story about a client who didn’t read the report and gets ‘surprised’ later. I had one last year, in fact, exactly like this. I defected a roof, said it needed short-term replacement, said it would be expensive, get a roofer out to provide an estimate - and the client complained after the fact. I pointed this out in detail to him and he left a bad review. Such is the life of a home inspector. I thought this was the same type of scenario.

Until I saw the first pictures, that is. Then, I had a “oh holy hell!” moment.

At the heart of the case was an inspection that was performed on a log home that was about 15 years old. Log homes present special challenges to home inspectors and most lack the training to do a good job on these structures. The inspector failed to report, in writing, extensive damage to the logs. By extensive, estimates ranged from $100,000-$300,000 dollars in needed repairs. That is, by way of understatement, a big miss.

Becoming the Expert Witness

I met a partner in the law firm for coffee in Pullman and we went through an initial review. He had a binder with the inspection report and a sample of pictures from the inspector. Visible in the pictures was wood rot, extensive failure of finish coatings on the logs (which is a critical failure point), failed chinking, and assorted other visible defects. It was about the seventh picture that I told the gentleman flipping pages that this home needed a log home expert to perform repairs.

As it turned out, they had contacted a top-notch log home restoration contractor. That was the source of my second recommendation. I had inspected a log home in 2018 with similar damage. Unfortunately, I was working for the seller on a pre-listing inspection. Itemizing all the damage and explaining it to her was agonizing. I hate giving bad news - but it is my job. I try to do so with some compassion but, at the end of the day, I have to be accurate. The log home contractor that she brought in also worked on the home at the heart of the litigation. He referred me as some who was extremely knowledgeable who also knew when to call in the cavalry.

Apparently I passed the initial test, so we set a time to meet at the property. That occurred in April of 2019. The damage was even worse than I thought from the pictures. Portions of the logs were so soft I could depress the wood with my thumb. I use a 3” awl for probing and had several places where I buried it to the hilt. The chinking was in terrible condition as was the finish coat. To make matters worse, there were entry holes that looked like they were made by carpenter ants.

When I mentioned that to the lawyer who was accompanying me, he mentioned that a carpenter ant infestation was the trigger for the legal action. Second test passed, and I was offered the opportunity to be their expert witness. (Below - See #34- I’ll explain why they were testing me so much.)

The whole process took until February of this year to resolve. My clients, per the lawyer, negotiated a settlement with the inspector’s insurance company. I’m not privy to the details of the settlement so I have no idea what the terms were. I’m also not going to go into all the details of the process, the research I did, and depositions given. I found them fascinating, especially the research angle, but this doesn’t have any of the pizzazz of a Grisham novel, so we’ll move on to the lessons learned portion of this article.

Lessons Learned as an Expert Witness

1. Always Get a Signed Contract - Before the Inspection

   The inspector in this case did not have a signed inspection agreement before he did the inspection. This immediately became a problem when things went south. In many cases, an insurance company will not even cover the inspector without the agreement, and I’m surprised that this one expended so much money.

   Without a clearly written agreement that lays out the responsibilities of both parties, it becomes a he said/they said issue. The contract will lay out the Standard of Practice used, the exclusions, and the limits of liability. For the inspector, this is absolutely critical. Without a signed agreement PRIOR to the inspection, the home inspector is nearly naked in the face of a lawsuit. The various courts have consistently held that a contract signed after the inspection is done under duress.

   For the customer, the agreement explains the what they can expect to be inspected, the means of reporting, and lays out their rights in the event there is a grievance.

   I feel so strongly about this that I will not leave to inspect a home without the agreement being signed first.

   2. If It is Not in Writing, It Doesn’t Count. Period. Full Stop. Do Not Pass Go!

   I don’t know how many times, during the deposition with the opposing attorney, that he asked “Well, the inspector told him about it in a phone call. Doesn’t that count?”

   No, it doesn’t. The written report is the record that counts. All the standards in our region – Washigton State SoP, ASHI, InterNACHI – require a written report. None mandates the format of the report (though some states do) and the level of detail can vary pretty dramatically.

   I use a narrative style report heavy with pictures and, often, video. A decade or more ago, I abandoned the old “Satisfactory, Marginal, Defective” categories. My reasoning then was that the tendency was to move everything into the marginal category so inspector could say he identified a problem but for the same inspector to avoid defecting components since that irks real estate agents. This minimization of issues is prohibited by the various Standards of Practice but is devilishly hard to prove since oftentimes a defect is a matter of opinion.

   In this case, the inspector had marked the siding and finish coatings “Satisfactory.” Clearly, they were not even close to being in satisfactory condition. Further, he stated, in writing, that the home was well-maintained.

   As a defense, he and his lawyer attempted to argue that he verbally informed them of the true condition of the logs. As they say in the sports world, “Scoreboard, baby!” If it wasn’t in writing, it didn’t count. Those logs were bad, the finish coating and chinking were bad, and the report called them “Satisfactory.”

   3. You HAVE to Follow the Standard!

   The Standards are not pie-in-the-sky aspirations. They are literally the minimum allowable operating procedures for a home inspection. In the case of Washington, the standard is mandated by regulations from the Department of Licensing. In the case of Idaho, the minimum is set by the Inspection Agreement. Now, I admit, the contract could specify the minimum as “Whatever, the inspector feels like identifying on the day of inspection” but I doubt most customers would sign such a stipulation. Most contracts will specify either the ASHI or InterNACHI Standards of Practice. Personally, I worked on and believe in the Washington SoP, so I use it everywhere. Other inspectors float back and forth between standards.

   In this case, the ASHI SoP clearly states, “provide the client with a written report, using a format and medium selected by the inspector, that states:

   “1. those systems and components inspected that, in the professional judgment of the inspector, are not functioning properly, significantly deficient, unsafe, or are near the end of their service lives,”

   One avenue that the lawyer tried to sieze was the phrase “in the professional judgment of the inspector”. While that might be an explanation for the inspector’s written comments, it is not a shield to being wrong. You can be very professional and very wrong at the same time. Being massively wrong gets you sued – as it should.

   The second issue is not techinial but ethical. As such, it is not part of the Standard of Practice but built on the Code of Ethics which works hand-in-hand with the Standards. In this case, the following provision came to bear:

   “2. Inspectors shall act in good faith toward each client and other interested parties. A. Inspectors shall perform services and express opinions based on genuine conviction and only within their areas of education, training, or experience. B. Inspectors shall be objective in their reporting and not knowingly understate or overstate the significance of reported conditions..”

   I stated directly that I felt the inspector had intentionally minimized the findings. His lawyer challenged me on that, stating I could not know that. My response was (paraphrasing), “He either minimized the findings or he is grossly incompentent – and I’ve never considered him to be incompetent.”

   I stand by my assessment. Sadly, minimizing report findings is an everyday occurrence in the home inspection industry. He isn’t alone; he just got caught.

   4. Not All Expert Witnesses are Expert

   I worked as the expert witness for the plaintiffs. The home inspector and seller’s had their own experts. In the case of the home inspector, the person he chose was an associate of many years standing. This, unfortunately, does not necessarily make for a good expert. The ‘expert’ no longer worked in the home inspection field in any capacity. Further, in 2010, he worked on the Washington side as an unlicensed inspector – a fact I knew as I received the complaint that came in from another local inspector and forwarded it to the appropriate Department of Licensing personnel.

   Reading his deposition was eye-opening, not so much of his original statements as for the evolution of his statements. He initially maintained that nothing untoward had occurred, that the home inspector operated fully within standard, and that phone calls were fine for documentation. By the end of the deposition, he had allowed that it probably would have been a good idea to have provided written documentation of the damage that existed and was supposedly discussed on the phone call.

   Gee, you think? We went from everything was by the book to undocumented damage was present. And he’s the guy on YOUR side?

   He also maintained that a visual inspection does not require the use of any tools or any of the other senses. Really quite astonishing.

   5. People Will Lie

   This was a bit of an eye-opener for me. That people lie is not the surprise. That the inspector involved would lie, both about the inspection process and in the aftermath of losing, was. He, as with his ‘expert’ witness maintained that he was not required to do anything other than look at the home, completely ignoring the standards of practice and the significant training that he has had. It was so blatant that I went to his website to document, from his own photo gallery, instances where he had performed the activities of home inspection that he was now saying were not within the standard.

   He also has expended significant energy in slandering me to real estate agents and other inspectors if the stories I hear are true. I’m a big boy, so I don’t really care with one little quibble. He told at least one person that I stabbed him in the back. Not true. I sat there and gave my testimony with him at the table. If I wouldn’t say it to his face – which I did – I wouldn’t say it at all.

   6.Anything You Say in the Past WILL Get Dredged Up

   This proved interesting. If you work as an expert witness, expect the other lawyer to do anything they can to impune your reputation. Fair enough.

   In this case, the defendent’s attorney brought up a situation from a decade ago involving another inspector along with some other websites that I had purchased.

   I had posted on my website a small table that listed the top four inspectors in the region and their license status. It’s important to note that in 2004, all home inspectors were required to hold a Structural Pest Inspector license. This requirement was removed when home inspector licensing was passed. After licensure, a home inspector was not required to continue with an SPI, though many did. I carried mine until 2014 but the market here didn’t support the cost and liability to maintain the SPI license.

   SPI licenses renew on the first of the year and the WSDA, who governs the program, has a searchable database. In early February of 2009, it was clear who had renewed – and who had not.

   I gathered the information and posted it. Two of the top four were licensed, two were not.

   In April/May of 2009, I received a letter from legal counsel of one of those unlicensed inspectors stating that I had committed an act of defamation that had a negative financial impact on his client. I responded, in writing, that truth is an absolute defense against defamation. I also checked his license status, found that he had finally renewed, and removed my chart online. Fair is fair, though the inspector could have accomplished the same thing with a phone call. Or, you know, actually renewed his license in January instead of late April.

   As for the websites, I am an entrepreneur. At this writing, I have two businesses after shuttering two others in the last 24 months. I have plans for another business in the next two years after I sell off my chimney sweep business. I experiment, find industries both under-served and that I can excel at, and invest time and money into them.

   Having said that, I was born to inspect, I am outstanding at the process, and expect to do home inspections until I’m too decrepit to do them well.

   7. Home Inspectors Can Massively Screw Up and Stay in Business

   After having lost his case against my clients, you’d think that the inspector would be out of business. Nope. He’s still inspecting, though I suspect it is without insurance.

   I have little advice to offer on this to potential customers. There’s no way for you to verify an inspector’s integrity. If you ask him if he’s been sued, he’ll just lie. If you ask the real estate agent, they won’t, or don’t want to, know.

   Right now, in Pullman, we have inspectors who perform home and sewer scope inspections without the proper licenses. Some don’t even have a business license to operate in the state. Agents use them and never check.

   In Washington, you can check for license status. In Idaho, there is no way to verify anything except a basic business license.

   8. There Will Be a Price to Pay

   As I mentioned above, the inspector involved in this case has been blathering about getting stabbed in the back. That sort of negative commentary in small towns will hurt your business as the good-’ol-boy club kicks into gear.

   I have had agents blacklist me and have had reports of whole agencies considering doing the same. This is the reason that I am no longer a member of Realtor associations in the area. After 14 years, I declined this year to renew as I cannot justify, in my own mind and to my standards, supporting organizations that would allow a restraint of trade and promote the use of unlicensed activities.

   9. You Will Know Who Respects You

   I am blessed to have a cadre of professionals who use me on their own projects and refer my services. They have heard the stories, they have dealt with other agents who try to blacklist me, and they know that I’m a honest, competent inspector. To have their support, professionally and personally, is humbling. These are people – and the clients that they represent - that I will run through walls for.