Inspectors as Expert Witnesses

by Nick Gromicko and Kenton Shepard
 
 
What Is an Expert Witness?
 

Some home inspectors who want to expand their business do so by performing consulting work. “Consulting” means to advise paying clients according to one's particular area of expertise. One way for residential and commercial property inspectors to offer consulting services is to act as an expert witness.

An "expert witness" is someone with expertise in a particular area who is called to testify during litigation. A "fact witness" is a person whose testimony is limited to giving facts. An "expert witness," by contrast, is allowed to give his or her professional opinion.

An expert witness provides an Expert Witness Report after performing an inspection. The goal is to provide a report so convincing that the opposition will decide to settle out of court, saving the client the cost of continued litigation.

Although an expert witness may be hired by either a defendant or a plaintiff, or by the court, s/he is supposed to be a neutral third party. This means that the inspector has no interest in the outcome of the case, and his or her testimony is unbiased.

What Qualifications Do I Need?

There is no single qualification, and the exact qualifications you’ll need will depend on the nature of the court case.  The first step in entering a case as an expert witness is to establish your credentials.

Qualifying to perform as an expert witness means that you must be able to show knowledge, skill, experience, training, education, and/or other expertise that may be meaningful to a party attempting to prove its side in a lawsuit.

When developing this portion of your business, a prospective client will probably be looking for an expert witness who:
  • is a practitioner in the subject at issue;
  • is an instructor in the subject at issue;
  • has published peer review articles, textbooks, and/or guidelines in his or her area of expertise; and/or
  • presents well in front of a jury.

What Does an Expert Witness Do?

The process for the expert witness works something like this:

The Referral

When you receive the referral, usually in a phone call, the prospective client will want to know your qualifications. You should have an updated curriculum vitae (CV), which is a detailed résumé, and a copy of your Expert Witness Agreement (including a fee schedule), ready to e-mail. Be prompt. You want them to know that you can take care of business.

During this phone call, you should ask for any relevant photographs and documents, including a description of the litigation.

At this time, you should also start a project log, writing down important contact information, such as dates and phone numbers, and recording who you spoke with and what was discussed. Make sure to enter any major decisions.

Laws regulating the recording of telephone calls vary by state. In states where it’s legal to electronically record phone calls, such equipment is inexpensive and can help you keep track of what’s said.

Case Evaluation

After reviewing the preliminary information, the first decision you’ll make is whether to accept the work at all. It may be that the prospective client will ask you to support a position that you are unable or unwilling to.

If you feel comfortable in taking the case, notify your client.

The Agreement

Typically, you’ll be approached by the attorney of one of the litigants. It’s a good idea to insist that your contract name the attorney as your client, instead of the litigant. This will increase your chances of getting paid. If the case goes to court and your client loses, you may not be at the top of your client’s “must pay” list.

  • The "Services" portion of the agreement should describe the expert witness services you are to provide, including your fee schedule. This section should contain a number of disclosures describing the limitations of your expert witness service.
  • The "Confidentiality" section should describe both the confidentiality which will be offered by the expert witness, and the limitations of the expert witness’ liability concerning confidentiality.
  • The "No Conflicts" section should state that the expert witness has no conflict of interest in the legal matter and is able to form an opinion free from bias.
  • The section on "Legal Matters" may delineate items such as a “Hold Harmless” clause.  It should define the jurisdiction under which the contract was written, and describe where and how disputes will be handled.
  • The "Termination" section describes the conditions under which the contract may be terminated, and the results of termination under different circumstances.

Expert witness fees vary with the situation and with the person providing the service. The client is typically required to pay an initial retainer, which might be $1,200.00 or more, depending on the amount of time the expert witness estimates the work will take.

Other types of fees which may be included are:

  • file review and research;
  • travel time;
  • inspection and investigative services (which you should bill at a two-hour minimum);
  • report preparation;
  • pre-trial preparation;
  • deposition (also billed at a two-hour minimum);
  • requested courtroom appearance (billed at a half-day or a full day); and
  • miscellaneous expenses (such as meals and/or accommodations, or a per diem).

Once the agreement has been signed, arrangements will have to be made to perform the inspection. If you want a specialist to be there for any reason, you should schedule accordingly.

The Inspection

Your demeanor during the inspection is important. Frivolity is out of place. You should remain professional and neutral, especially if the opposition has representatives at the inspection who are unfriendly.

A tactic you may encounter is that the opposition may try to intimidate you. They may provide representatives with an overbearing presence, or they may place themselves in positions that make it difficult for you to do your job. The penalties for actually interfering with you during your inspection are harsh enough that you should not allow yourself to be intimidated. If you have a small voice recorder, you should use it to record the inspection, along with any confrontations or efforts to interfere with your inspection.

If the opposition succeeds in rattling you, under no circumstances should you lose your temper. Keep in mind that there’s a good chance that any incident that arises may be described in court. You want to be portrayed as rational and in control of your emotions.

You should ask questions of anyone you like, but think twice about answering questions too freely. Don’t give out information to the opposition, and don’t go into too much detail with your client. You may change your mind about what you’re seeing as you continue to investigate.

You should walk into the inspection as informed as possible. During the inspection, you should be working from a checklist and notes that you created during your preparation. Unlike home inspections, the property you inspect as an expert witness may be far from where you live. You may not be able to return easily, so you need to be prepared.  To that end, you should take a lot of high-definition photographs. Taking and storing photos is cheap in the digital age. Taking high-resolution photos means that you may be able to zoom in to look at something in more detail.

Report Preparation

Once the inspection is completed, you’ll be ready to begin compiling your Expert Witness Report.

Based on the matter at issue, you should develop a hypothesis and show in your report why yours is the true hypothesis. You can include anything you think is necessary in your report.

The report may contain the following:

  • a title page;
  • a Table of Contents;
  • your credentials;
  • the Request for Inspection;
  • any relevant building codes and standards;
  • definitions of terms used in the report;
  • the main body or narrative of the report;
  • any miscellaneous reference material;
  • a copy of the plaintiff's Complaint;
  • a copy of the defendant's Response to Allegations;
  • all relevant photos and diagrams (with captions as to location/area of the subject property);
  • your conclusion;
  • any explanatory footnotes and/or bibliography of your reference materials.

The goal is to make your report overwhelming to the opposition while still maintaining your status as a neutral third party. If you testify to something that’s later proven to be untrue, you’ll lose credibility, which is crucial in finding work as an expert witness.

When the complaint consists of multiple allegations, you should organize your responses clearly and separate the information as necessary.

Opposition’s Response

Once you’ve submitted your Expert Witness Report, you and the opposing expert witness will have a chance to review and respond to the other’s report. If that fails to elicit a settlement, the next step will be to go to trial.

Deposition

Early in the proceedings, you may be asked to provide sworn testimony via a deposition, which is conducted outside of court. During the deposition, the expert witness must answer a series of oral questions by the opposition’s attorney. The client’s attorney will have a chance to cross-examine you in order to make clarifications.

In Court

In court, you need to be well-prepared. You should have reviewed your report carefully, especially if much time has passed since you wrote it. Try to anticipate the areas of the report that the opposition will attack, and have answers ready for questions they might ask.

You’ll be coached on appropriate behavior by your client or their attorney. If you have any questions about the process, don’t hesitate to ask. It’s better to resolve them before you find yourself all alone on the witness stand.

Once you’re on the stand, you’ll first be asked about your qualifications and credentials.  After the court and the opposition accept them, you’ll give your testimony. You may be asked to give factual information.  You may have to answer specific questions.  And you may be asked for your professional opinion.

Final Billing

Your billing schedule should be included in the section of your agreement that outlines your fees. Send your client invoices on a regular basis until payment is received.

Conclusion

Requirements for expert witnesses vary by state. If you’re considering offering expert witness services, you should discuss with your attorney any details which may affect your inspection business.
 
 
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Expert Witness Contract template
Deposition Preparation
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Writing Report Narratives