I received a request for advice today from a relatively new inspector in my general area, who is threatened with a lawsuit. Inasmuch as I write almost exclusively about avoiding litigation, I am fast becoming known as the prophet of doom, although prophet is too lofty a term for a mere mortal. For this reason, I’m always very careful to document what I say with indisputable facts or testimony, but in this particular case the inspector does not want to be identified, and I respect that. If you want documented proof don’t read on. But if you’re interested in learning more about litigation, and the way to avoid it, keep on reading.
No lawsuit is ever simple. In fact, most of them are filled with abstract and difficult to understand Latinate words instead of simple concrete Anglo-Saxon ones. In addition, there are generally poorly written and filled with ridiculous overstatements (hyperbole) that have very little to do with the actual truth. However, there’s nothing that we can do about that, but if you’re interested in learning more about that subject read George Orwell’s essay, “Politics and the English Language.”
This lawsuit is complicated by the fact that the inspector does not have insurance. Apparently, he had read one of my articles that appeared in The Mall about a year ago, and claims to have called me for advice on insurance. He confirms, thank God, that I advised him to get it as soon as possible. In fact, he reports that I’d been specific in my recommendation but, like many new inspectors, he was eager to save money and confident that he would never be sued. I felt the same way for twelve years or so until I was victimized twice in a five-day period by two frivolous lawsuits; hence the necessity for insurance and my passion for warning inspectors about the threat posed by litigation.
As to the lawsuit, the inspector is being sued over cracks in hard surfaces, which the plaintiffs insist the inspector should have known or warned them about, and which have affected the value of the house, and would have prevented them from buying it. I don’t know what’s going to happen, but I can guess. If the inspector is really lucky, the lawsuit will go away when the attorney learns that the inspector does not have insurance or viable assets. This could happen, because most lawsuits are about the money that insurance companies are willing to pay to settle a case, and seldom about justice in the purest sense of the word. But, supposing it doesn’t go away, what then?
Let’s talk about the obvious defenses: the inspection was done in accordance with nationally recognized standards, which define the inspector as a generalist and not a specialist, and that the alleged damage was concealed or not clearly visible on the day of the inspection, and so on and so forth. These are all noble defenses, but of little value. Ask yourself, if the inspector wins with this defense, what has he won? He has wasted precious time and money defending himself, and has only the reward of an empty victory. So where am I going with this story? Many of you already know, and particularly if you’ve seen the movie Cool Hand Luke (a religious movie if ever I’ve seen one). To borrow a famous line from the movie, “what we have here “is a failure to communicate.”
Unfortunately, the inspector could be said to have programmed his business to destruct. First of all, he was using paper check-sheets, with check-boxes and minimal hand-written comments. They have their place, and God knows I used them for about twelve years, but they’re no match for attorneys, who are likely to study every word in even the most sophisticated of narrative report. Forget about the fact that I have a vested interest in a computerized report-writer, which has never influenced the advice that I given to inspectors. All inspectors have an obligation to “communicate” with their clients, a Latinate word that means “to share.” And this inspector had a moral and ethical right to share with his clients what he knows about cracks in hard surfaces, how they originate, and what they commonly indicate. And, in doing so, he might avoid litigation, and even if he is not able to his defense will be immeasurably stronger.
He understood when I shared with him that I carry insurance because I’m human and can screw up on any given day, even though I know that I’ve made myself a more attractive target for unscrupulous clients and their attorneys, and he was even more impressed when I asked him what he would want if he was my client and I was inspecting his most expensive investment. And he was also impressed when I showed him the information about cracks that prints automatically with every one of my reports, and was appreciative when I showed him that I comment on even the smallest of what may appear to be simple curing cracks.
I have little faith in the judicial system, because it is too easily corrupted, and leave almost nothing to chance. I’m an old soldier, as you can see by the titles of many of my articles, such as “There are Terrorists Among Us” and “The Weapons of War,” and I regard my report-writer as a weapon, and my narratives as ammunition, and I’ll always fire first and ask questions later. I’ve been shot at and hit, and there is nothing more pleasurable in life as they say than being shot at and missed. Take care, and leave nothing to chance.