Don't let your client go to the wrong attorey - Expert Witness

Education & Training with Real Estate Expert Witness Support

If you have read my past blogs,  you know that I am a frequent expert witness in cases where real estate agents get sued. I am either hired by the Buyer, the Seller,  the Listing agent or the Buyer's agent to testify as to whether the agents met their "standard of care" during the transaction.

Too often,  the buyer or seller has chosen the wrong attorney.  I probably should say they are not qualified,   because they have a law degree but think about it ...............just because your California real estate license allows you to sell homes, apartment houses,  development project,  office/warehouse buildings,  lease office space,  businesses, raw land and make loans, doesn't mean you are qualified to do so.

Most lawyers specialize,   just as agents do.  Very few (let me say it again),  very few lawyers are real estate attorneys.  That means they spend at least 75% of their work in real estate.  But,  if you ask the majority of attorneys,  they will say they do real estate.  But you got the wrong answer because you asked the wrong question. 

Unfriendly,  even if you find an attorney who claims to be a REAL ESTATE ATTORNEY, you still haven't asked enough questions.  I know attorneys who are full time real estate attorneys but they represent home builders.  I know attorneys who only handle homeowner associations.  Others work with developers and wouldn't know how to prosecute a single family home case.

A lawyer who does real estate falls into two general categories.  First,  a transaction attorney.  This person draws up documents,  prepares contracts,  deals with Title companies over such issues as Easements and other valuable services.  A good transaction attorney is extremely valuable.  

The second category is a litigator.  This means that they go to trial and actually go to court. It might surprise you that few attorneys are strictly litigators and few still are good litigators.  Litigators ae masters at negotiating,  positioning,  posturing and making a good argument.  If you have a client who intends to fight, you need a litigator.

And,  assuming that you actually find someone in this maze,  who says that they are any good.  Remember, in any category of people,  most are average (just like our industry) and you wouldn't want to hire them.

So,  how do you begin.

1. One of the best ways,  is to find out which attorney represents the biggest real estate companies in the area.  If it is a residential case,  check with residential companies.  If it commercial,  check with commercial brokers.  Remember,  if that company might be a party to the lawsuit,  their attorney can't represent you or your client against their real estate client.

I mentioned the biggest real estate company because an attorney representing Coldwell Banker, for example, will have lots of cases and lots of experience.  They might also have several attorneys in their firm who are experts in different types of real estate. 

2.  If that doesn't work, go to put in the biggest city near you, and put in real estate.  The reason I said large city is because a small town doesn't typically generate enough real estate business for the attorney to be a specialist. 

What to do next?  You call,  not your client.  Don't let them pick an attorney because they go to church together or he sat next to her at the Rotary Club luncheon last week.  Do the legwork for your client so that they get a good attorney.  And,  when it comes time to go to the appointment,  go with them. Most client are totally unprepared to answer the type questions that the attorney will raise e.g.  I see that the inspection contingency was removed,  what about the financing contingency??

As an aside,  this is how I got into the expert witness business. I had a client that needed legal help.  I didn't know enough to recommend one,  so my client found an attorney.  I went with them,  with my file.  About 5 minutes into the conversation,  I found that I was the one answering the questions.  After about 1 hour,  we finished up. the attorney told my client in front of me,  that he had a really smart agent. Wow,   did my stock go up with my client.  About 2 months later,  the attorney called me and asked if I could be an expert on another case he was working on.  And,  as the saying goes,  the rest is history. I have now done over 200 cases and currently am working on 6 new ones.

3. So, assuming you now have a list of attorney name, ( I suggest at least 3)  here is what I would do next

  • Before you set an appointment,  call and explain that you have a client with a legal real estate problem
  • Ask them to check for conflicts.  This means that the attorney has to see if they currently or have ever represented any of the parties or potential parties (inspectors, title, lender, etc) in the past
  • Assuming there is no conflict,  ask them what they charge for an initial consultation.  Many will have a reduced fee for this first meeting
  • Ask them the following
  • Ask what % of their business is real estate
  • Ask what type real estate is most of their cases
  • Ask what % of their time is spent in litigation
  • Ask if they would be willing to provide a couple of references for your client to check
  • Thank them and say you will pass this information on to your client
After you have complied all the information on these 3 attorneys,  meet with you cleint and go over the fact with them.  If the initial cost is reasonable,  it is not a bad idea to meet with more than one before they start a lawsuit.  Also,  if you have two attorneys who are equally qualified on paper,  it is important to find out which one you would like to work with.  Remember,  it is going to cost $50,000 or more to litigate so it is critical to make sure you have a good case before getting started.
Lastly,  get prepared for the meeting with the attorney:
  • Clean up your file and make sure all the documents are in it and easily retrievable during the meeting with the attorney
  • Put together a simple chronology of key events with your client
  • the more prepared you are, the less time it will take with the attorney
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Guy Berry

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Comments (1)

Gary Coles (International Referrals)
Venture Realty International - Las Vegas, NV
Latin America Real Estate

Guy,  I just read your post and loved it.  I really agree that there is a lot of difference in attorneys.  I've been an expert witness several times and my advice has helped negotiate a settlement prior to court each time.  As a broker, I've also seen a lot of real estate cases where there were good or bad attorneys.  It would be nice if every broker could have a copy of your advice.  I am going to forward it to several friends.

Nov 14, 2009 03:23 PM