A Deposition is an Imposition...BUT.....

Real Estate Agent with EXP Realty 414-525-0563 57026-90 Broker

     Sometimes what can appear to be ....initially a very simple transaction can snowball (especially good analogy for our Snowball"Sprow...or Sling season now in Wisconsin....Spring is Soooo not here yet !)  into lots of legal complications. It doesn't matter what YOU believe as an agent or lender or any other professional who has been summoned  to appear....It is what the law allows.....and at least initially...there are no boundaries to what can be required of you...how much time it takes...money you spend...distance you drive..copies you make...it is your legal duty with the threat of contempt of court...punishable by monetary penalties, imprisonment or other sanctions as the court may deem appropriate.Never Happen

   If you think this could never happen to you....you document everything... you have a Broker's license..you have been in the business for decades...you don't have "those" kind of clients...you would be wrong. You don't control the Buyer or the Seller  no matter who you represent. They have a free will...and if they choose(or more likely their counsel does)  to seek out every pocket as shallow or deep as it may be and name everyone and their Aunt, Uncle and Cousin in some course of legal action to prove whatever point...get whatever Pocketdamages...they do...and you have zero, zip, nadda...no choice but to respond to what may appear to you to be nonsensical demands. It is not about you....or common sense. During the "discovery" portion of a legal action, attorneys can ask whatever they wish....and you will provide it.  

   IF for some reason you believe that some correspondence...be it text, email or snail mail could be considered "reasonably confidential" or your client has asked you to keep that information confidential....You may tell the inquiring lawyer  you wish to declare a "Legitimate Claim of Privilege"  keeping  the communications concerning "XYZ" confidential  because....stateConfidential your reason in detail. Reasons can be because it was requested by the client or the information is "reasonably confidential" and unrelated to the issues at hand. Beware...because YOU reaonably believe it...does not necessarily mean that the lawyer(s) will agree with you and you may be required to produce it anyway.

     Do not assume, if you are working with a party who has a lawyer...be it a divorce or other buyer or seller that any correspondence between you  and the lawyer has attorney/client privilege...most probably it does not unless the lawyer is also being paid by you.

  Insyrance  Are any legal expenses covered by your E&O Insurance ?  Hmmm...policies differ....no one answer fits all.  Of course IF it does cover some or the expense it would be after payment of the deductible...in our part of the world very typically $2500. You certainly value your time....and that can be copious hours you cannot bill for or recoup.

     Our advice....treat every transaction....and the organization thereof as if it were going to court...well organized and documented.  It is still time consuming...and regardless of the software, will take time to put into the possible format that be required by a legal proceeding. gavelNever ASSUME....Always DOCUMENT....and know that if there was only one legal opinion...there would be one lawyer.  Many people wish that were true.. ...different judges on any given day can make different decisions...and it may well not be the one you favor.

       This has been a professional advisory post brought to you by Sally K. & David L. Hanson, Broker Associates with Keller Williams honored to be serving southeastern Wisconsin for all things real estate.

Posted by

Sally K. & David L. Hanson, ABR, CDPE, CSS, e-Pro,ILHM, REDS

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Re-Blogged 1 time:

Re-Blogged By Re-Blogged At
  1. Gabe Sanders 04/20/2018 11:00 PM
Real Estate Best Practices
depositions n real estate
legal testimony n real estate

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Ron and Alexandra Seigel
Napa Consultants - Carpinteria, CA
Luxury Real Estate Branding, Marketing & Strategy

Sally and David.

When we had our offices in Los Angeles, we always kept track of everything as did our team.  Our motto on disclosure was disclose or be deposed.  Excellent post, we hope everyone heeds your sage advice.  A

Apr 08, 2018 01:47 PM #23
Ken Jones
Toms River, NJ

Sally K. & David L. Hanson Wise advice.

I have continually advised other agents of this philosophy for years.

However, most just blow it off with an, "it'll never happen to me" attitude.

I hope it doesn't. Because if it does, they'll regret not having listened to my advice.

Apr 08, 2018 01:50 PM #24
Dan Tabit
Northstone Real Estate Inc. - Sammamish, WA

Hope for the best, prepare for the worst.  What is said is not always what is heard, what is written can be debated, but the interpretations are at least subject to a common understanding.  

E&O may cover the lawyers fees after the deductible, but the loss of working hours, sleep and second guessing can never be compensated for.  Good reminder. 

Apr 08, 2018 01:52 PM #25
Michael Eisenberg
eXp Realty - Bellingham, WA
Bellingham Real Estate Guy

I had some sellers that came close to getting hauled into court by a buyer but luckily we were anle to resolve the issue ourselves. 

Apr 08, 2018 05:47 PM #26
Kathy Streib
Room Service Home Staging - Delray Beach, FL
Home Stager - Palm Beach County,FL -561-914-6224

Sally and David- the best advice you said was to treat each transaction as if it would be going to court. You never know so the best thing you can do is document, document, and document!

Apr 08, 2018 07:06 PM #27
Gita Bantwal
RE/MAX Centre Realtors - Warwick, PA
REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel

I love the post. Congratulations on the feature. I will share it with others 

Apr 09, 2018 04:04 AM #29
Eileen Burns
Trans State Commercial RE Ft. Lauderdale/Miami/Palm Beach - Fort Lauderdale, FL
FL Probate Agent, Hotel & Land Specialist

Sally K. & David L. Hanson you are so right about a time drain and the unnecessary stress that takes a toll on your current life.  The most tyring part of the deposition is to answer the question with a yes or a no period.  Many times we can't keep it simple because it isnt simple the way the questions are posed. Grateful for the advent of email that helps termendously in the line of communication.  Congrats on your featured post!

Apr 09, 2018 07:53 AM #30
Gene Mundt, IL/WI Mortgage Originator - FHA/VA/Conv/Jumbo/Portfolio/Refi
NMLS #216987, IL Lic. 031.0006220, WI Licensed. APMC NMLS #175656 - New Lenox, IL
708.921.6331 - 40+ yrs experience

If only everyone followed this advice, Sally K. & David L. Hanson ... certainly in the professional realm, but as individuals as well.  FULL documentation and organization would cure so many headaches and ills.  Your advice serves us all well ...

Congrats on yet another great Feature!



Apr 09, 2018 12:03 PM #31
Nick & Trudy Vandekar, 610-203-4543
Long & Foster Real Estate Inc 610-225-7400 - Devon, PA
Tredyffrin Easttown Realtors, Philly Main Line

Best advice I was given when starting in the real estate busines was to always consider my license first. Protect that at all costs. Now I have always been upright, honest and professional, so keeping my files clean, upto date and complete has never been a problem. When I got sued by a buyer, the attorney asked for my files, saw what I gave him and smiled like a cat before a bowl of cream. As the buyer was also an attorney, he enjoyed himself in court. I felt relieved but very sorry for her that she had obviously been badly advised by her agent who never showed up in support. She left the court in tears, and our attorney said he hoped she learnt a lesson.

Apr 09, 2018 12:59 PM #32
Jerry Lucas
ABC Legal Docs LLC - Colorado Springs, CO
Mobile Notary Colorado Springs, CO Notary Training

My contracts include a mediation and arbitration clause to settle matters outside of court.

After a phone call with an angry, unreasonable person, I installed a free phone recording app on my smartphone and now record my phone calls. In Colorado, only one party needs to know the phone call is being recorded.

Colorado notaries are authorized to take a deposition, but it is not taught in notary training class. It is usually done by a trained court reporter. I bought a court reporter text book to learn the procedure.

Apr 09, 2018 07:25 PM #33
Jeff Dowler, CRS
Solutions Real Estate - Carlsbad, CA
The Southern California Relocation Dude - Carlsbad

Sally and David

I've been through a number of legal proceedings while in the corporate world - it's very time consuming - but not in this business, And hopfeully never will. You've certainly shared some valuable advice!


Apr 09, 2018 10:50 PM #34
Gary L. Waters, Broker Owner, Waters Realty of Brevard, LLC
Waters Realty of Brevard, LLC - Rockledge, FL
... a small office, delivering big service!

This is one of those posts that should be Incorporated into very real estate licensing (and continuing ed)course.  Can't be said enough!

Apr 10, 2018 06:43 AM #35
Karen Feltman
Cedar Rapids/Iowa City, IA KW Legacy Group - Cedar Rapids, IA
Relocation Specialist in Cedar Rapids, Iowa

I was called into court twice, both times for the opposing side (the people that I didn't represent).  The sellers were suing the buyers that flaked out, not me or my company.  It was awful.  I turned over everything I was asked and my buyers were in the wrong.  Now I organize and prepare every file and once completed, I finish the documentation and keep it.  Thank you for sharing.

Apr 10, 2018 07:57 AM #36
John Wiley
Right Move Real Estate Group- EXP Realty - Fort Myers, FL
Lee County, FL Real Estate GRI, SRES,GREEN,PSA

Words of Wisdom, Words of Warning.

Words well taken.

Thanks for sharing.

Apr 10, 2018 09:12 AM #37
Jon Zolsky, Daytona Beach, FL
Daytona Condo Realty, 386-405-4408 - Daytona Beach, FL
Buy Daytona condos for heavenly good prices

I feel your pain. It is the experience, that all of us would rather try to avoid, but like driving, no matter how good you are, you are not the only player there, and accidents happen 

Apr 10, 2018 05:00 PM #38
Laura Cerrano
Feng Shui Manhattan Long Island - Locust Valley, NY
Certified Feng Shui Expert, Speaker & Researcher

Like I said with this post earlier, sometimes you just have to tell the truth and it doesn’t come off perfectlyin every time.

Apr 10, 2018 11:20 PM #39
Dörte Engel
RE/MAX Leading Edge - Bowie, MD
ABC - Annapolis, Bowie, Crofton & rest of Maryland

Dear Sally & David,

Excellent advice.

Apr 11, 2018 08:48 PM #40
Jan Green
Value Added Service, 602-620-2699 - Scottsdale, AZ
HomeSmart Elite Group, REALTOR®, EcoBroker, GREEN

So true!  Approaching every transaction as if another set of eyes is viewing docs is a best practices line of defense, no pun intended!

Apr 14, 2018 11:41 AM #41
Corey Martin
Martin Presence Group - Ruston, LA
Real Estate and Management Solutions

Very true. Often times it has nothing to do with logic, reason, or common sense and, as such, it is very important to protect one's self through due diligence and religious documentation. Thank you for sharing. 

Apr 14, 2018 07:34 PM #42
Thomas McCombs
Century 21 HomeStar - Akron, OH

You must understand the process. The lawyers for both sides are most likely being paid by the hour, so they have an  incentive to prolong the  investigations and disclosures.

I have been in depositions where the first hour was just spend asking baseline, often repetitive questions that add nothing to the evidence trail. If you are the one being deposed you are working for free while the attorney is putting on a show for his client and generating billable hours. 

The attorney's job is to generate confusion where none actually exists. It is a skill that is developed and used to confound and confuse the depositionee. 

Document everything. You just never know what kinds of issues will arise.

Apr 24, 2018 06:43 PM #44
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