October, 2017
Feature
Inspection News and Views from the American Society of Home Inspectors



Expert Witnessing 101

RUDY PLATZER

Want to be an expert witness? Here are a few of the many things I’ve learned over the years to give you a feel for this exciting and challenging work, and to help you get started.

First, prepare a curriculum vitae (CV) that outlines your background and experience. This will be used by attorneys and court officials to determine your qualifications to act as an expert. Your CV should contain information about your education, specialized training, years of pertinent experience, past clients or references, publications, classes you’ve taught, presentations you’ve given and anything else that demonstrates how you are qualified to testify as an expert.

Getting Started
The process usually begins with a call from an attorney who needs help with the technical aspects of a case in litigation. The attorney may have been referred by attorneys who have used your services, or who have heard about you from other attorneys or perhaps from other professionals such as engineers, with whom you have worked. You also might get a referral from an attorney for whom you’ve done a home inspection. I got my start when I advised my business attorney about a problem he was experiencing in his house and that started the snowball rolling.

The attorney may be representing a client who is suing a contractor for substandard work, suing a seller or a real estate broker for hiding defects, or even suing an inspector for failing to report a serious problem. Conversely, you may be called by an attorney who is defending the contractor, seller, broker or inspector.

The attorney will briefly outline the nature of the litigation to get your reaction as to whether you believe you can help win the case. At this point, I ask the attorney to send me all the information on the case and I explain that there is no charge for this initial review. I commit to a quick review of the documents and a decision as to whether I can be of help. 

As I review the documents provided, I ponder several things, including the following:

Am I comfortable with the technical aspects involved? You must be thoroughly versed in the technical issues surrounding the case. This forms the basis for you to be helpful in winning the case and avoiding embarrassment when pitted against other technical experts in the courtroom.

Can I offer advice and testimony that could be pivotal in winning this case? Do your homework; check your reference sources. What you think you know might not be completely applicable in this case. Be sure you are on the right track.

Based on a brief telecommunication with the attorney, I ask myself, “Can I work with this person?” Personality conflicts can get in the way of getting the job done.

How much time and energy might my involvement in this case consume?

And most importantly, am I ready, willing and able to rigorously defend my opinions against a potential onslaught of experts and lawyers on the other side of the case?

If you do this type of review and you think you’re up to it, then be intrepid and go for it!

Working on a Case
THE TERMS: Once you have decided to accept a case, you and your client will need to agree on the terms of your participation. This should be a spelled-out contract that you have developed with your business attorney. It will incorporate your fee schedule and all the things for which you expect to be compensated. This includes telephone consulting, site visits, report writing, research, depositions, court appearances, and incidental things such as photographs and travel expenses. Consider asking for a retainer to cement your relationship. And be sure to make the attorney your client, not the litigant. This will help you collect your fees, especially if your side loses!

THE SITE VISIT: Next is your site visit. This is where the rubber meets the road. You may have quite an entourage of attendees at this event. Litigants, the attorneys from both sides and other interested parties. You must not allow any of the people to be a distraction  and, unlike during a home inspection, you must not divulge any reactions to what you see or discuss your findings at this time. Be polite, but save your conclusions for later. Be sure to take any notes, photos and measurements you may need. I like to take many photos so I can refer to them without having to make a second site visit—although in complex cases, a second visit may be required.

THE REPORT: After you are away from your “audience,” it’s time to write your report. I follow the old newspaper guideline: Who, What, When, Where, How, Why and How Much. I include a list of those who attended the site visit, the address and description of the property, the date, the weather conditions, the reasons why I was there and how I conducted the inspection. I state what I saw and what, if any, tools I used (for example, a moisture meter), and what measurements and photos I took.

This report can be pivotal, so I make it as detailed and complete as possible, draw the strongest conclusions possible, and then state my unwavering and absolute opinion.

For example, “This is one of the worst roof installations I have ever seen.” Or “The shoddy workmanship evident in this room addition falls seriously short of any widely accepted construction standards.” I use this sort of language to let the opposition know that this is the kind of testimony they will face if the case goes to court. My goal is to help the attorney achieve an immediate settlement on the basis of this report and I have been successful in doing so with an overwhelming majority of cases. This saves a lot of time and money for all parties. Lawyers like this and so do I!

It is important to remember that this report is different from a retail home inspection report, which must be factual and without drastic conclusions.  For instance, you can’t tell a buyer, “Don’t buy this house!” or “This is the worst house I’ve ever inspected!” This is a subjective opinion. Report facts and let your clients decide if they still want to buy the house. However, when acting as an expert witness, you are being called on to give your opinion.  An expert witness is the only person the court allows to do this.  All others must testify only to facts. Also remember, your opinion will be challenged and you must be ready to react based on your knowledge and experience.  The opposition will call in experts to counter your findings. They may be registered architects or licensed engineers. Don’t let that intimidate you. I have never lost a case where these professionals have challenged me.  Maybe I’m lucky.  Or maybe experience in the field can trump “book learning” especially, in the eyes of a jury.

THE DEPOSITION: If the case is not settled at this point, you will probably be deposed by the opposing lawyers. I liken this to a boxing match. Lead, punch, bob and weave. Punch back forcefully, but respectfully! Remember that lawyers have been schooled in the art of interrogation. For instance, you can expect them to ask you the same question in different ways several times to test your resolve or to rattle you. Be polite, remain calm and, above all, be consistent. Don’t volunteer any new information, and remember that anything you say can and most likely will be used against you in the courtroom. Interestingly, at the end of a particularly gruesome deposition, I was congratulated by the opposing attorneys for having done a “great job.” The next call I received was from my client (the attorney), telling me the case had been settled. The following call was from one of the opposing attorneys wanting me to work for them in another case.

Going to Court
If the case has not been resolved by this point, we’re headed to court. On the evening before my appearance, I try not to think about the case. I feel confident in the work I have done, 

I know that I am familiar with all the facts, and my opinions and I require no additional time for study. I relax and get a good night’s sleep.

For court, my attire is something I might wear to an informal dinner—a sport coat and  tie with chino slacks and tasseled loafers. I never wear a suit; I don’t want to look like an attorney! I think about where the case is being tried as well. I might not wear a tie if I think the jurors in that jurisdiction (for example, in a rural county) might feel more comfortable with an informal appearance.

Demeanor is everything. Look relaxed and congenial. As you approach the stand, acknowledge the jurors with a small smile on your lips, but don’t overdo it. Answer all the questions concisely and resolutely. And I always answer the questions by directing my responses to the jury, not to the attorney who asked the question. The jurors are the ones I want to convince!

Sometimes, your court appearance will be grueling. In one case, I was on the stand for two full days. It was a multimillion-dollar lawsuit and the opposition had a lot to lose. The complaint was against a custom builder who built an expensive home with many substandard issues, some of which raised safety concerns. My testimony declared the house to be “uninhabitable.” The house was in a rural county and there was no building code in place. The builder’s attorney therefore claimed that there was no minimum standard for the builder’s work. I convinced the jury that the builder could, nonetheless, be judged against good building practices accepted and used for years by builders across the land, codes notwithstanding. And adhering to these standards was especially relevant because the builder used the words “quality builder” in his advertising materials. I argued that mold inside the exterior walls was caused by the improper detailing of the faux stucco finishing material and it had nothing to do with the lack of codes. It should not have taken two days to win this point, but there was a lot at stake, and the opposing attorneys used every trick in the book to try to discredit me and tear down my testimony. It’s an interesting aside that their expert was a registered architect! Incidentally, we won the case. And that win generated yet another referral from an attorney, who told me he had read the full transcript of my testimony (court documents are public information) and he wanted my help on the case.

Final Thoughts
There is a lot more to know about expert witnessing. If this work sounds exciting to you—and, believe me, it is—talk to your fellow inspectors who engage in it and research the Internet. Then, get involved. It can be very rewarding! 

Rudy Platzer, ACI, is a retired home inspector in Punta Gorda, FL. He is the author of the book “The Diary of an Intrepid Home Inspector” (available on amazon.com). You can reach Rudy at HomeInspectionCo@aol.com.