September, 2013
Strategies
Inspection News and Views from the American Society of Home Inspectors



Expert Witness Subpoenas: How Not to Work for Free

ISAAC PECK

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Some home inspectors specifically solicit work as an “expert witness” as a matter of choice. Others find their way into a courtroom or deposition hearing when they’re drawn in by opposing parties, usually because their testimony is deemed relevant to the lawsuit at hand. In these cases the home inspector often is served a subpoena to show up.

For many inspectors the question is how to respond when subpoenaed in someone else’s lawsuit. The answer is simple: Position yourself to earn an expert witness fee.

Many experienced home inspectors insist that, in most cases, when subpoenaed to testify or be deposed in a lawsuit between two parties, inspectors should submit an expert witness contract to the requesting party and receive compensation for their time.

The rub is that sometimes a lawyer will subpoena an inspector and expect them to testify for free. In situations where the lawyer attempts to play hardball, retired home inspector Jerry Peck, now a construction and litigation consultant, advises fellow inspectors to acknowledge that they wrote the report but avoid offering any opinion unless under contract as an expert witness. “Whether or not you are a party to the case, as soon as they ask, ‘What do you think?’ or ‘Is that what you think?’ or any other question that leads to your offering an opinion, you are acting in the role of ‘expert’,” says Peck.

Peck explains the difference: “If a home inspector is asked, ‘Did you do this inspection on this day, at this address?’ That is not an expert witness question,” Peck says. “That is a question for him/her as the Records Custodian.”

Peck insists that no lawyer should get more than a Records Custodian answer unless they are willing to sign the home inspector’s expert witness contract, which includes a retainer fee and advance payment. “The Records Custodian can only attest to things such as: ‘Yes, this is the report which was produced for the inspection which was performed on (date) at (address) for (client’s name).’ Think of it as name rank and serial number only, until they retain you for further information,” Peck says.

An inspector can stop answering and get his contract out when a lawyer begins asking questions like, “Why was that your opinion?” or “Why did you think that needed to be corrected?” because the home inspector is now being treated as an expert. “Turn to the judge and bring up the fact that they are treating you as an expert but have refused to sign your contract. I have not heard of a judge yet who will not tell the attorney to sign the contract and get their checkbook out,” says Peck.

Expert vs. Witness of Fact
For Peck, the distinction is clear between expert witness and witness of fact. “If you are testifying that what you wrote up at the first inspection was true and why – you’re giving your professional opinion, i.e., you are testifying as an expert and giving your opinion,” says Peck. Alternatively, witnesses of fact are only allowed to testify about what they saw, not their opinion of what they saw. For example, saying “the tree fell” is a statement of fact, while saying “the wind blew the tree down” is an opinion as to what caused the tree to fall.

“If you are called as a witness of fact, you can only read from the report. Nothing else can be added: no ad-libbing, no explanations, no opinions. The report is ‘fact’ and if it is in the report, you read it as ‘fact.’ If it is not in the report, it is ‘not fact’ and classified as either ‘hearsay’ or ‘opinion’ and you have NOT been retained to offer your opinion,” Peck says.

Peck cites the following definition of an Expert Witness to highlight the difference between a witness of fact and an expert witness, as well as to illustrate that a home inspector can be an expert witness even when he/she was initially involved in the inspection of the property (underlined for emphasis):

Expert Witness

When knowledge of a technical subject matter might be helpful to a trier of fact, a person having special training or experience in that technical field, one who is called an expert witness, is permitted to state his or her opinion concerning those technical matters even though he or she was not present at the event. For example, an arson expert could testify about the probable cause of a suspicious fire.

A person who testifies at a trial because he/she has special knowledge in a particular field-this entitles him/her to testify about their opinion on the meaning of facts. Non-expert witnesses [witnesses of fact], are only permitted to testify about facts they observe and not their opinions about these facts. In family law trials, typical expert witnesses include actuaries, who testify about the value of spouses’ pension plans for the purpose of dividing them at divorce; child psychologists or development specialists, who testify about the best interests of the child when custody or visitation are in dispute; appraisers, who testify about property values when the parties cannot agree; and career counselors, who testify about a homemaker’s ability to return to the work force for the purpose of determining the amount and duration of alimony.

Keith Gipe, a commercial inspector in Florida, confirms Peck’s assessment, saying, “I can’t say how it works in other states, but Florida allows an inspector or other expert to testify as an expert witness even if they were party to prior investigations [home inspections]. I worked several years as an inspector for an engineering firm specializing in construction defect litigation support. We inspected hundreds of commercial properties each year and many of us were regularly subpoenaed to testify and we were paid as expert witnesses,” says Gipe.

Gipe says that his company included “litigation support” and “expert witness” as optional services with the rates in the standard fee schedule. “There was never a problem with the attorneys except that occasionally they wanted to renegotiate the fees or dispute the time we billed for litigation support. If the attorney who subpoenaed you thought your testimony would hurt his case, he wouldn’t have subpoenaed you. Conversely, the opposing counsel can subpoena you if they think your testimony favors their case,” says Gipe.

So what is a home inspector to do when subpoenaed in a lawsuit where the inspection reports (and the inspector’s testimony/opinion) are relevant to the case? Home inspectors who have been through it advise forwarding an expert witness contract to the requesting lawyer and receiving a retainer and advanced payment before proceeding. 

Isaac Peck is the Associate Editor of Working RE Magazine and Marketing Coordinator at OREP.org, a leading provider of E&O Insurance for appraisers, inspectors and other real estate professionals in 49 states. He received his Bachelors in Business Management at San Diego State University. He can be contacted at Isaac@orep.org or 888-347-5273.

Reprinted from Working RE Magazine / OREP.org.