By Keith Swift, PhD
InterNACHI member/InterNACHI Report Writing Consultant
President, Porter Valley Software
At a CREIA conference last year that I attended as a vendor, I chatted with several
veteran inspectors who had been sued and who had read one or two of my articles.
And all of them feel, as I do, that the system has been corrupted, and that inspectors
are being victimized by unscrupulous clients and their attorneys, and in some
respects by the insurance companies that settle lawsuits for economic reasons,
rather than paying to defend innocent inspectors. But, the sad truth is that once
we’ve been named in a lawsuit we’ve lost, even when we win, and nothing short
of tort reform can help us. I might be one of the few inspectors writing about
this, but many of them feel outraged and utterly helpless. However, I must confess
that one veteran inspector described my articles as “tirades.” But that’s okay.
He was smiling when he said it, and what a dull place the world would be if we
all felt the same way. Besides, the word “tirade” is derived from a word that
means “to draw, and fire,” and I have a fondness for words and cherish the meaning.
Regardless, I fully expect to hear from even more outraged inspectors. Of course,
I won’t be able tell you their stories without their permission, but let me tell
you a tale of my own, a tale of two attorneys that would be comical if it wasn’t
real.
A few years ago, I walked into a plaintiff’s attorney’s office in Calabasas,
California, ready to be deposed as a defendant in a trumped-up inspection lawsuit.
However, I was told that my deposition had been postponed but that someone had
forgotten to inform me. Anyway, the attorney must have heard me complaining and
hurried into the reception area to greet me: “Swift,” he said, “I’ve heard some
interesting things about you. And I’m delighted to meet you,” he added, extending
his hand, and smiling. I had arrived with a chip on my shoulder and ready to do
battle, so his warm greeting caught me off guard. “I’ve heard some interesting
things about you,” I replied. “You’re purported to have said that good lawyers
don’t clean their teeth in the morning, they sharpen them.” He chuckled, and before
long, we were lounging in the reception area, and chatting amicably about the
lawsuit, like a couple of old soldiers. Of course, he’d warned me that he shouldn’t
be talking to me without my attorney being present, but I’d assured him that I
didn’t need legal counsel to state what I thought were unequivocal truths about
the case and my innocence. I also told him that his so-called expert witness
was a lying, falling-down drunk, who had avoided a construction fraud case by
plea-bargaining, which I don’t think he was aware of. (I’d already provided my
attorney with a transcript of the Los Angeles Superior Court case and couldn’t
wait to see him exposed in court for the mercenary that he is). Anyway, after
about ten minutes of verbal sparring, the attorney jumped to his feet, extended
his hand, and declared: “You don’t belong in this case. Have your attorney call
me in the morning, and we’ll see what we can do about getting you out of it.”
I hurried home to my wife, prepared to boast about how I had single-handedly
slain a dragon but settled on the truth, telling her that the plaintiff’s attorney
was a charismatic and intelligent man whose brief company I’d enjoyed. Naturally,
I called my attorney, and left a jubilant message on his answering machine proclaiming
my victory. So what did he do? Without even consulting me, he berated and threatened
the plaintiff’s attorney for daring to discuss the case outside of his presence,
and promptly turned my pyrrhic victory into a resounding defeat. From that day
on, the plaintiff’s attorney wouldn’t even acknowledge my apologetic phone messages.
And who could blame him? The case dragged on for almost two years while the attorney’s
fees continued to mount. My insurance company finally agreed on a settlement,
and cancelled my policy. As to my attorney, I had become genuinely fond of him
before that incident, and for the longest time he continued to invite my family
to join his for dinner. And, who knows, we might even have become friends, but
I just couldn’t bring myself to break bread with a man who had betrayed me. And
I’m the type of guy who says what he thinks, and that wouldn’t have made for pleasant
dinner conversation. (Later, I also politely declined to inspect a house for him).
But for those who might be inclined to believe that I have no respect attorneys,
nothing could be further from the truth. In fact, New York attorney Philip K.
Howard won my respect and admiration a long time ago, and I encourage anyone who
has an interest in justice and the common good to read his best sellers: The Death
of Common Sense: How Law is Suffocating America (Random House), and The Collapse
of the Common Good: How Americas Lawsuit Culture Undermines Our Freedom (Ballantine).
We should never forget that justice is worth fighting for. And those attorneys
who tell the truth and honor justice are worthy of respect, and those who don’t
are beyond hope.
