A few years after completing a four-point inspection, one inspector received an interesting letter. It was a subpoena. It informed the inspector that, in a matter of weeks, several attorneys expected him to appear before a judge.
No one was suing him. But the inspector did have a role to play.
Upon receiving the subpoena, he realized the case involved a former home inspection client. He’d completed a four-point inspection for them years before, and now, that client was suing their homeowners insurance provider to replace the roof. In support of the client’s case, they wanted the home inspector to testify about the roof issues outlined in his four-point inspection report.
It’s called a fact witness testimony. Though it may sound intimidating at first, you don’t need to face it alone.
At InspectorPro, our claims team has advised countless inspectors through subpoenas and testimonies. From this experience, we know inspectors have plenty of questions about testifying as a home inspector and getting subpoenas for inspection reports. You might wonder: Can I refuse a subpoena? What is the difference between a summons and a subpoena? What does it mean to be a fact witness? Can a fact witness give an opinion? Are there any home inspector witness guidelines I should follow if I’m asked to testify?
To ease anxiety around the subject, we’re here to answer questions, offer advice, and share our resources for home inspector fact witnesses.
What is a subpoena? What does it mean for a fact witness home inspector testimony?
A subpoena is a written order. A court, attorney, or administrative agency will issue a subpoena ordering someone to testify, typically at a trial or deposition, writes the Attorney General’s Office of the University of Washington. The subpoena tells you where to go, when to be there, and who to contact for verification or questions.
There are two main types of subpoenas. If you’re ordered to give an oral testimony, that’s formally referred to as a subpoena ad testificandum. The second type is a fact witness subpoena or subpoena duces tecum, which requires the testifying witness to bring documentation or records. According to Cornell Law School’s Legal Information Institute (LII), you can remember it by the Latin phrase duces tecum: “You shall bring with you.” Some subpoenas will ask for both a verbal testimony and the production of records.
If you get subpoenaed, you might automatically think, “I’m getting sued.” That is not the case. It is not automatically a summons. Rather, this order likely means a past client is using your inspection as evidence to support their case. Even if they’re using your inspection reports and fact witness testimonies in lawsuits, these subpoenas have little to do with you, the home inspector, and more to do with the facts stated in your report.
Still, we realize how similar a summons and subpoena can seem. So, court summons vs subpoena: how exactly are they different?
What is the difference between a summons and a subpoena?
Summonses and subpoenas are both documents notifying you about a court proceeding. Ignoring either of them can have legal consequences. Neither of them imply guilt, California attorneys Appel & Morse explained in their blog article.
The difference lies in your participation. For example, a summons could notify you of a lawsuit against you or your business, Appel & Morse wrote. Or it could be a summons for something like jury duty.
Alternatively, receiving a subpoena means you have information related to someone else’s lawsuit. A party involved in the lawsuit wants to use your information as evidence. According to the Tough Law Firm of Texas, this information may include:
- Documents, as with a subpoena for inspection reports.
- Physical evidence like inspection photos.
- A home inspector’s testimony as a fact witness.
- Eyewitness accounts.
Although you’re being “summoned” by that party, it isn’t automatically a court “summons.” Consider yourself an informant, not a defendant. Generally, you won’t need to defend yourself, since you and your business are not being charged or targeted in the lawsuit.
Note that in some cases, it’s possible (but uncommon) for the claimant to drag your business into a lawsuit based on your testimony. To review the possible outcomes of an E&O claim, read our article here.
Can I refuse a subpoena?
Now that you know what a court summons vs subpoena means, a subpoena probably feels less alarming. You might wonder if testifying as a home inspector is optional. You might assume subpoenas are easier to get out of than summonses.
In reality, you could face strict penalties for ignoring a subpoena. Don’t do it. Ignoring the order could result in civil contempt of the court, potentially resulting in expensive fines or even jail time, Tough Law Firm wrote in their previously linked article.
This doesn’t, however, mean you’re forced to participate. You might be able to object or request a change. Utah residents, for example, can object to an entire subpoena or parts of it under certain conditions, like if the subpoena gave an unreasonable time limit. Whatever you do, make sure you respond to it.
Guidelines may vary for your specific state, so consult local legal counsel to verify your compliance with state laws.
Home Inspector Witness: Expert vs Fact Witness
When you research best practices for testifying as a home inspector, you’ll find lots of advice for acting as an expert witness or a fact witness, with little distinction between the two.
Keep in mind that expert witnesses and fact witnesses are not the same thing. In most cases, you’ll be asked to testify as a home inspector fact witness.
What does it mean to be a fact witness? Generally speaking, you’re testifying to facts about the home inspection you performed and the report you provided the client. Expert witnesses, on the other hand, share insight related to their specialized trade, education, or experience beyond what the average citizen would possess.
Think of it this way: You are a home inspection expert. But if you get subpoenaed for clients using your inspection reports in lawsuits, then you’ve likely been called as a fact witness. In the context of your testimony, it is not your job to share expertise or give your personal opinion on the subject. As such, you must follow home inspector witness guidelines appropriate for that role. Stepping outside your role could expose you to greater risk.
This raises a common question: What should you do if you receive a subpoena for your inspection report or testimony?
Home Inspector Witness Guidelines
Should you ever find yourself testifying as a home inspector fact witness, you’ll want to know who to contact for resources and how to answer questions.
That’s where we come in! We’ve compiled tips every home inspector should know, no matter who you’re insured with.
1. Contact your insurance provider.
Whether you get a court summons vs a subpoena, contact your insurance provider as soon as possible. If they have free pre-claims assistance like ours at InspectorPro, they’ll direct you to someone who can walk you through the process of providing records or testifying as a home inspector so you know exactly what to expect.
InspectorPro’s dedicated pre-claims team has everything you need to feel confident and prepared for your fact witness date. We’ll answer your questions, address any concerns you have, and offer advice for the big day–all for free.
Our pre-claims team will invite you to call back after your testimony and share how it went. Nine times out of 10, home inspectors testify to the best of their abilities and move on without a hitch. The lawsuit carries on, and rarely will they need you to get involved again.
Regardless, do not skip this first step of consulting your insurance provider. If necessary, reach out to your own attorney, as well. Doing so will help you verify you’re compliant with local rules and prepared for a seamless outcome.
2. Be honest.
Testifying as a home inspector means you will be under oath. As such, be honest. If you don’t know an answer, tell the attorneys that you don’t know or remember.
3. Give short answers.
We also suggest keeping your answers short. If you elaborate too much, you may find yourself speaking outside your scope or trying to fill in the blanks for details you can’t remember. To minimize your liability, stick to the facts, give brief responses, and do not comment on anything outside your standards of practice (SOP).
When in doubt, you can always stick to “Yes” or “No” answers.
4. Use your inspection report.
You’ll likely receive a subpoena because your home inspection is relevant to the case. As such, the information you provide during your testimony as a fact witness will come from the facts of your inspection and report.
Therefore, don’t be afraid of using your inspection reports in these lawsuits. After all, a home inspector testimony is not a closed-book test. Bring your report with you and consult it whenever you need to.
In fact, this can help you follow guideline #3. When you feel nervous and find yourself starting to ramble, repeat what you wrote in the report. Since you’re only there to testify to the facts of the inspection you performed, why not utilize the facts you already wrote?
5. Do not play the expert.
Again, keep in mind that a fact witness is not an expert witness.
Even if the industry considers you a home inspection expert, it isn’t your job to play the expert role or give an expert opinion. Your role as a fact witness is to testify to the facts of the home inspection–not to educate the audience about home inspections.
Answer questions about the specific inspection at hand, and not about home inspections in general. Sticking to your role reduces the risk of saying something you shouldn’t.
6. Use a quality pre-inspection agreement.
Lastly, equip yourself and any home inspectors you employ with an excellent pre-inspection agreement.
Your pre-inspection agreement defines the parameters of your limited scope as a home inspector. When properly crafted and signed ahead of time, your agreement starts protecting you before you’ve even started the inspection. This matters because, if you get subpoenaed (and if that subpoena escalates into a claim against your business), you can use your agreement to defend your unique scope and role in the inspection process. Reference it alongside your report and your insurer’s guidance to avoid straying from your SOP.
If you’re insured with us at InspectorPro Insurance, you automatically have free access to our exclusive pre-inspection agreements. Each one is crafted to keep you compliant and one step ahead of your defense game, so you never have to second guess your contract in a subpoena or claim. Plus, if you get the contract signed before your inspection starts, you qualify for $1,000 off your deductible. Learn about the benefits of InspectorPro’s agreements here.
Peace of mind in a court summons, subpoena, or pre-claim.
Yes, it is less common for home inspectors to get roped into a lawsuit after giving their testimony. You’re the fact witness; you’re providing information for someone else’s lawsuit. You are not being sued or tried, and in most cases, it stays that way.
Still, as unlikely as it is, lawsuits can happen after a subpoena and home inspector testimony.
We say this not to frighten you, but rather to provide realistic expectations to protect inspectors from being blindsided. Meanwhile, if you do find yourself tangled in an actual claim against your business, you’ll have peace of mind knowing the InspectorPro team is guiding you every step of the way.
We know your industry inside and out. We’ve specialized in processing home inspector claims, pre-claims, subpoenas, pre-inspection agreements, and risk management guidance for over a decade. Whether you’re new to the inspection world or you’ve been insured with us for years, our customer service team is ready to assist.
Curious how our coverage stands out from your current provider? Fill out a free, no-obligation quote here. We’ll put you in touch with one of our brokers to introduce ourselves and answer your questions.