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.
Note:What do you do when subpoenaed in someone else’s
lawsuit? The best answer is simple: charge an expert witness fee, of
Expert Witness Subpoenas: How Not to Work for Free
By Isaac Peck, Associate Editor
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
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 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.
(story continues below)
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 adlibbing, 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 they
were initially involved in the inspection of the property (underlined for
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,”
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
About the Author
Isaac Peck is the Associate Editor of Working RE Magazine and Marketing
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.
ATTENTION: You are receiving WRE Online News because you opted in at WorkingRE.com or purchased E&O insurance from OREP. WRE Online News Edition provides news-oriented content twice a month. The content for WRE Special Offer Editions is provided by paid sponsors. If you no longer wish to receive these emails from Working RE, please use the link found at the bottom of this newsletter to be removed from our mailing list.