PODCAST TRANSCRIPT:

Ian Robertson
Welcome back to Inspector Toolbelt Talk everyone. Today I’m flying solo answering a question, actually. So we had this on our list to talk about. And we’re actually going to have an inspector that we work with about expert witness testimony. But as a precursor to talking about that, as a service, I want to have the solo podcast to kind of open the discussion of it a little bit. Because it’s a it’s a process. I’ve done it before. I don’t do it now. And there’s a reason why that I’ll tell you, but I know a lot of guys that still do it and love it as a service. I know some inspectors that that is the bulk of their business. And they are asked by, by attorneys all over to be an expert witness in their court cases. So let’s kind of dig into this subject, a little bit expert witness testimony, and why you may or may not want to consider it.

So first of all, I’m gonna caveat it with this. I am not an attorney, I fully recommend that you talk to an attorney before you ever try to offer this service. That’s what I did, it worked out very well. So a lot of the information that I am going to present is obviously not legal advice. It is. This is a disclaimer for you if you haven’t caught on yet. But it is just my own anecdotal experience mixed with things that attorneys and even InterNACHI I’ve learned from them when it comes to being an expert witness. So first of all, I hate the service. Now a lot of guys listening are like, whoa, whoa, whoa, you’re having a, you’re having a podcast on something you hate? Yeah. Because listen, just because I don’t like doing it doesn’t mean you won’t. A lot of guys love it. And like I said, there’s a lot of home inspectors that I know all across the country that we work with all the time, that do this day in and day out, and they love it. Here’s why I hate it. Number one, you’re in kind of a weird spot where people are contentious. You know, we’re already in that day to day when it comes to home inspection. There’s always somebody from the deal that hates us, the seller, the buyer, the agent, somebody just hates the information that we presented. Now times that by 10. And that’s kind of the situations that I always got put in, you know, I bumped into people on the street when I just watched their company collapse or something else happened because of my testimony. And it just, it just didn’t jive well with me. It’s just not my personality. I didn’t like the whole aspect of sometimes you get in where the attorneys will try to discredit you. And as objective as I tried to be, I’m going to be honest, it just bothered me. So I got out of that whole game. I did it for years, and I just didn’t like it.

Here’s the reason why some people like it, from what I’m told they like it because they do like the challenge. They like it because it requires a lot of thought and preparation. And maybe they have a thicker skin than me. But more importantly, they’re completely objective. They just don’t care what the other person thinks of them. And that’s the perfect personality type for this kind of service. In my opinion. If you’re just like, Yeah, I’m good. Go on in and be an expert witness. And the money is very, very good. So I am not going to argue that, if you’re doing this, you’re not doing this for 50, $100 an hour, you know, I was doing it almost 20 years ago, and my base rate was 175. Now it’s more like two or 300 or more an hour. So that is you’re charging for prep time. You’re charging for depositions, you’re charging for travel time, you’re charging for prep fees, phone consultations, the whole nine yards, before you even get to a courtroom, if it even gets that far, because I’ve only actually ever had one that actually got to the courtroom, it before you even get there, you’ve charged 1000s of dollars before you’ve even had to really talk to a whole lot of people or sit in a deposition or anything like that. So the money is good. You have to be worth your weight in gold though, because we’re going to be sitting in a room, hypothetically or not even in a room before we even get there, we’re going to be going undergoing a lot a lot of scrutiny. So we have to be on point in every last second. So if you’re still learning, probably not the service for you. If you’ve been doing this for a long time, and you know things inside and out and you’re that confident. If you can go here’s a here’s a real test. If you can go on one of the Facebook groups and say, here’s a picture. Here’s what’s happening. Try to find a problem with what I just said. And you can quote unquote, win. This might be the career path for you. But let’s talk about this because I just got a question about this. And that’s what I love about our podcast here. Somebody has a question. Sometimes they’ll ask me, and I’ll say, hey, that’s already on the list or Oh, I never really thought about that. And we’ll talk about it on the podcast with either me or a guest or one of the team here at Inspector Toolbelt. So, somebody actually just sent me this. So there’s two types that I’ve run into personally, when it comes to being an expert witness. One, when it’s your inspection or two, when it’s not your inspection, let’s talk about that first one, it seems kind of odd, why would be, we’d be an expert witness on our own inspection, things come up.

So I’ll give an example of something that was small scale that came up compared to something that was large scale that came up. So we did an inspection, found some defects, the buyers walked away, and they were very legitimate defects. Sellers didn’t want to give the money back, big, expensive house, large deposit. Attorney called us. And we’re going to come back to the story because it actually has another point to it. And he’s like, Hey, we’re suing them, we need an expert witness. That’s basically summation of it. Those are small scale, usually less than a day, just because, you know, what are they going to do? Spend 40 grand to get 40 grand back, you know, those are going to be small cases relatively. And usually the attorney in the buyer’s attorney in that case, was just doing it for his own reputation. He’s like, there’s a 500 to $1,000 closing that I didn’t get paid for, but I can’t have my clients not get their money back. So he was just doing it, I think pro bono, but I’m not really 100% sure about that. Another case that happened was, I started inspecting these houses in this development. So these inspections I personally did, and there were continual issues that came up. So they wanted to sue the builder. Those are two common things, those you’re an expert witness, because you’re an expert in the field of inspections. And now you’re an expert in inspecting those houses. Because if there’s 100 houses in that development, and you inspected 10, or 20 of them, likely you’ve inspected more of those houses from that builder than any other inspector. So now you’re an expert in two ways.

Now, ones that are not your inspections. So the one that I actually got called into court with was they called me in to do an inspection of this very expensive roof at the time, this was probably, I don’t know, 16, 17 years ago, it was a 50 some odd $1,000 roof. It was not pretty in the opinion of the of the buyers, it was not really working out well for them, or not the buyers, the homeowners, so I inspected, did my thing, and we’ll get into the nitty gritty of that. Or there might be a development or homeowners association that calls you in to do an inspection. So those are the two that I ran into.

Now let’s talk about something that home inspectors fear, getting called into court. Now when it’s us it’s different. But sometimes we’re worried, oh, man, I hear this a lot. I’ve had a couple of guys actually, over the past year, call me and say, oh, man, I think we’re gonna get called to court. You know, there’s gonna be days talking about this builder and some stuff that he did wrong things that I saw, I’m going to lose work over it. Don’t worry about that. I have dealt with that. A whole bunch. And this is what invariably has happened. attorney calls me, and usually they’re very pushy. So you know, some are nice, are really cool. You know, hey, we want to pay you to be an expert witness. Most of the time, they call and say, we’re calling you into court, here’s a subpoena, please provide the report. Or however it happens. My response is, you have my report. So you already have my factual witness testimony. So think about that there’s a difference between a fact witness or eyewitness told me what you saw, and an expert witness. And as soon as I say that the conversation usually changes. Sometimes it takes a little more convincing, because the attorneys know that we as home inspectors are already a fact witness if we have written a report. So if we inspect the five houses in development, and these people are suing the developer, now, we’re already a fact witness, because we have provided a report, and every fact that we know of is in that report. So they can call us in and say, Well, are there any other facts? No, it says in my report and the agreement, these are all the facts that I know. End of the case. In fact, it goes to the point that one inspector that I know he added a little trick that attorneys with sometimes even bring them all the way to court and not want to pay him. So he’d sit there and they’d ask them questions, and he’d slowly look through his report, find the appropriate spot and read them the comment, attorney said I already know that comment, I want your..and what he was trying to get him to do, was the attorney to say we want your opinion on it. As soon as they would open that gate. The inspector would look to the judge and say respectfully, Your Honor, I am here as a fact witness, eyewitness however you want to put it slight difference. They have not paid my fee to have my expert opinion on this. All I can tell you is what I see. And invariably Either he gets to go home. But more often than not, he would get paid to be an expert witness. Because if they have you there, there’s a reason they want you there beyond what you’ve written. So remember that don’t get nervous, if you’re going to be called into court because of one of your inspections. All that time on the phone all that time reviewing, driving there, you’re going to get paid for that. So even if we’re not looking for another career choice, know that at some point, we may be called as an expert witness. That’s important to remember. Because if we go there trying to the attorneys don’t want to pay $300 an hour to have you there as an expert witness, they want to try to get that for free. So they’re going to try every which way to get that opinion out of you get you to say your opinion, rather than the facts. So that was always my default, right from the beginning, well, I can read you the report, I have the report, oh, good, then you already have my testimony. If you’d like that report, you can send a subpoena. And then I can provide that. Or if you’re already representing my client, I’m sure there’ll be happy to share with you. So that’s the first thing. Just remember, you don’t have to get up there and do whatever they say. That’s a beautiful thing.

So now, how does it actually work? Well, first of all, you agree on a fee, then you usually will get be given a case file or something like they say, Hey, look this over, here’s the case, and we want your opinion on these facts, then you decide if you want to accept it, you do not get paid for deciding whether or not you’re accepting the case. So plan on working that into your price, you know, you might spend a few hours looking over a case file before you even get paid. So now work that into your price. So if you want InterNACHI has an expert witness agreement, you can have an attorney draw it up for you, whatever you want to do, the next step would be here’s my fee. Here is the agreement. And this is just something personally that I like to do, here are my estimated hours. And the reason that I say that is we don’t want to leave it open ended, we’re professionals. And if we do want to make this a career, we have to treat people fairly, so we can’t get to court, the attorneys putting money on spending four grand on us, and we come there and have a bill of $9,800 for maybe it’s a $20,000 case, or even if it’s a $2 million case or more, you know, we have to give them some sort of expectation, we say, Okay, I’m assuming that this, this and this are going to cost X amount of dollars, here’s my estimated hours, and the attorney will be honest with you, I don’t think it’s going to be that much. But thank you for giving me an estimate, or, you know, this could drag on a while. So I appreciate that estimate. But maybe you should add more time on it, because he’s probably going to bill on top of your bill. So keep that in mind, try to give them an estimate of hours. Now also lay out what time you are going to be tracking and then actually track that time. You know, when we’re inspectors, I’m sitting there, you know, the next morning after an inspection with a cup of coffee in my PJs writing a report. We can’t do that in this situation, we have to be over the top professional. No joking around, no goofing around, we track our hours. So I started at 8am to review the document, it took me reasonably 3.5 hours, you know, we round up to the next half hour or however we’re going to do it and then just keep track of those times. And then I like to every 10 to 20 billable hours, I like to just send a notice, hey, you sent that case file three different times. We responded to those emails and this and that. And if you’ve ever gotten a bill from an attorney, they actually lay out everything that they did. So I lay out okay, I responded to three emails, review two different case files, research these issues, and did XYZ. So we had to be a little bit more detailed. So typically, on a smaller case, about a half day of prep, and almost a full day. Typically if I’m at six hours, I charged for a full day. That’s usually that’s written in the agreement, you want to write everything out, lay it out for him, then you just do your prep time, you might get a case where, okay, they want to sue this developer.

And here I’ll give you a case that didn’t actually go to court. So we had a developer that the guy who installed the insulation and installed the insulation wrong against a certain type of vent for the fireplaces. That was actually a fire hazard. I discovered in one house, then I discovered it in second house. I don’t remember who this builder is but man, this guy was awesome. His houses were near immaculate. He contacted me directly thanked me and then hired somebody to go back to every house he had built in that development even though they weren’t under warranty or anything. And at that point in time, and had them correct it for his reputation. The agent called me he’s like, Have you ever seen them? Like, no Holy crap, I love this guy. So it was really, really great. But, you know, those are the kinds of things that don’t happen very often. And so you kind of need a record of all you’re kind of forgot where I was going with this whole little bit. But that’s where you need a record of all the inspections that you’ve done. And you kind of need to know your stuff, we’re going to be going up against builders. So now, builders is probably the most common, I’ll say about that. So now, what if it gets to deposition?

So deposition is kind of like a miniature version of the court case. That’s where you’re sitting in the room, and they’re taking your testimony. Both attorneys are usually there with a mediator who’s usually the judge, and I forget what they call the ladies that or guys that type out the whole court case on what everybody’s saying, but you’re gonna sit there, and they’re gonna riddle you with questions. So the attorney that hired you is usually going to be asking you questions that you already know, where he’s gonna go with it. The other attorney, he’s going to either try to discredit you, or stump you, or both, or worse. Most attorneys are very professional. I have found some attorneys to be extremely aggressive. And it’s unfortunate, and construction litigation attorneys, which is the ones we’re usually dealing with. Those have been the most difficult for me, they are not easy to deal with, in my opinion. Some of them are great, but they’re used to litigation and construction litigation, which is aggressive. And now a home inspector comes in, and they don’t usually have a whole lot of respect for us. So be on your game, and be calm and don’t break. The one time it actually got to court, the builder insisted that he did an amazing job on this roof. Interestingly enough, I knew this builder, but I didn’t know that until I saw him. So we go into the courtroom, I sit down. He looks over at me, I look over at him. And I’m like, Oh, I didn’t say this out loud. But I go, Oh, I know you. He looks at me. And I think he had taken some of my courses is where I knew him from. He raises his hand and said, Your Honor, I’d like to take this to mediation, not arbitration, but mediation. And my client looks over at me goes, What did you do to that guy? Did you beat him up in high school or something? I’m like, No, he just, he just knew me. Typically, that doesn’t happen. From what I understand, they’re not usually going to be too intimidated by us. He just happened to know. And I think it was from one of my courses or multiple of courses, that I kind of knew what I was talking about in this particular instance, it was a it was a specific shingle type and installation type that I was extremely familiar with. So that was the end of the court case, it was literally days of prep, and I sat in a chair for two hours. And that was it, all done. And I got paid. So when it comes to being an expert witness, we actually don’t end up talking a whole lot. Typically, we are usually going to be, in my experience anyways, backup for their main argument. So now if their main argument isn’t working, then they’re going to call us and oftentimes they settle out of court because they don’t want any of that mess in court. Especially if it’s a business or a builder. He does not want his business in public records like that. So they tried to settle out a court and then usually too, I believe it, again, I’m an attorney, I think it’s called discovery phase, where they get all the reports, so they get all the information. So now the say they’re suing a builder, again, that’s probably one of the most common suing the builder and they’re like, Oh, hey, we’ve hired as an expert witness, Joe, home inspector. Okay, here’s all of his eight reports from all of these houses. The defendant, the builder’s attorney, and the builder are gonna sit there and the attorney is gonna go, he’s got pictures, these are your houses. Is that actually going on? And they’re gonna be like, man, yeah, he’s going, Okay. We’ll settle out of court, because he’s going to be on the stand. And that’s not going to help us. Let’s see if they’ll take 120k instead of the 230k that they’re asking for, or negotiate from there. And he’s like, alright, that’s typically how things go.

So should you be an expert witness? As a career choice, a lot of guys like it, for the most part, it’s actually not that bad. I just didn’t enjoy it personally. And if you have an option to do what you enjoy versus what makes you the most money, that’s a pretty sweet spot to be in in life. So I appreciated that and I said, I’m not going to do something I don’t enjoy. I’m going to do what I enjoy instead, and still make money at that. Will you make more money than as you would inspecting houses? Oh, yeah, totally, you know, hour prep time, lining up clients, taking care of business, marketing, all that stuff for a two or three hour inspection, you’re talking lots of hours compared to make, you know, five, 600 bucks for an inspection. Now with with expert witness, I mean, you’re all that prep time is billable hours, all the talking on the phone is billable hours. It’s a lot more lucrative. Now, the bigger question is, will you run into it at some point? Possibly, I don’t know the I wouldn’t even care to guess at the percentage. But I know quite a few home inspectors that never made this a career choice. But they’ve ended up in that position before. So hopefully that would the pointers I gave you before will help you avoid giving your expert witness testimony for free, do not do that. You have spent a lifetime gaining that experience. You did your job that you got paid for for the report, you wrote down your witness testimony, you should get paid for anything beyond that. So if they want you, re-listen to the points that I talked about before, and get paid for your expert witness testimony.

Now some guys never planned on being an expert witness. Some inspectors just got called into it once. And then construction litigation attorneys, they’re always looking for expert witnesses. So now maybe you’re ICC certified, or you have all these other certifications, that other home inspectors like oh, that’s useless for home inspections. Cool. But that’s not useless to a to a litigation attorney construction one, they’d be like you handled yourself well on that, on that stand or at that deposition, or your testimony, even beforehand was was spot on, I have three more cases for you. Send me your bill. And let’s get this going. And then other attorneys will start hiring you. And that’s how those things kind of get started. So just home inspection related, you’re not probably going to run into it a lot. You’re going to run into it more with when it comes to builders, new construction, developments. If you’re into commercial construction, commercial Inspections, rather, commercial construction lawsuits, they’re always looking for expert witnesses. So whatever your specialty is, it’s a great field to be in if you like it.

So hopefully this helps. Should you be an expert witness? I don’t know. That’s up to you. But if you do decide to hopefully this information helps. And sometime here in the future, we’re going to have a home inspector on that actually does that quite a bit more than I’ve ever done it. And he’ll give us some more pointers. So thank you very much. And thanks for listening to Inspector Toolbelt Talk.

Outro: On behalf of myself, Ian, and the entire ITB team, thank you for listening to this episode of inspector toolbelt talk. We also love hearing your feedback, so please drop us a line at [email protected].

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*The views and opinions expressed in this podcast, and the guests on it, do not necessarily reflect the views and opinions of Inspector Toolbelt and its associates.