USING EFFECTIVE COMMUNICATION AS A RISK MANAGEMENT TOOL
Home inspectors often ask me if I like what I do. Like anyone, most days, my answer is yes. Then I tell them that their job and my job are really the same. That usually produces a puzzled look. The truth is that litigators, like home inspectors, are paid communicators. When I represent a client in litigation I am communicating my client’s position to a judge or jury. A home inspector communicates the visual evidence of conditions of the systems and components of a home to a client so the client can make an informed purchase. While our audiences differ, our primary job remains the same: communication.
The similarities do not end there. During a trial I usually have three opportunities to communicate on behalf of my client. I get to speak to the jury during my opening and closing statements and through the evidence presented during trial. Inspectors also have three opportunities to communicate with a client. They speak through the pre-inspection agreement and the home inspection report, and verbally.
Everyone wants to be good at their profession. If your profession is communication, your goals should include being an effective communicator. It’s not enough to be the best at detecting defects in a home. No matter what you find if you cannot effectively communicate it to the client, in a way the client understands, you are not doing your job.
The pre-inspection agreement is usually the first communication from you to the client. Effective agreements define the scope of the inspection for the client, identify the standards of practice being used by the inspector, and alert the client to specific legal defenses the inspector will rely on in the event of a claim.
The home inspection report communicates by disclosing the systems and components designated for inspection that were present at the time of the inspection. It identifies systems and components which were present but not inspected and the reason. It identifies what defects were found and the significance of the findings. Finally, it provides recommendations where appropriate to have a condition inspected by a qualified professional, tradesperson and/or service technician.
Uniformity of communication between the pre-inspection agreement and the contents of the inspection report is critical. Confusion arises (usually followed by a claim) when there are differences between the scope and standards identified by the agreement and the communication of the conditions in the report. If your legal responsibility to your client is described and created by the agreement, then the service you provide is judged under that standard. You should strive to match your home inspection report with the terms of the contract you made with your client. This will eliminate any argument later that your client was somehow confused by mixed messages created by the differences between the pre-inspection agreement and the inspection report.
When communicating “defects” an inspector should make sure that that term is defined within the body of the report and in complete agreement with the language of the agreement. I generally find that home inspection reports that utilize language found in the applicable state or association based standards are conducive to preventing miscommunication in terms of the scope of the agreement and the significance of the categorization of the condition as a defect.
Some inspectors prefer to also define other conditions of systems and components that are not considered "defective". Generally these fall into the” maintenance, monitoring and other recommendations” categories. When I consult with my clients about communication in home inspection reports I stress the importance of making a clear distinction between something constituting a "defect" under applicable law or standard, and “everything else”. This comes from years of taking testimony from plaintiffs in home inspection cases who routinely testify that they were confused by how defects were communicated within the body of the report. For example, where an inspector utilizes confusingly similar definitions of what is a "defect" and what is something that must be monitored or maintained plaintiffs will generally testify that they were confused and did not understand that the things marked as defect needed to be addressed prior to closing of title.
Sometimes effective communication means repeating information in multiple places in the home inspection report in order to ensure that the client’s attention is focused on those issues. Many inspectors utilize some form of defect summary in the body of report, usually at the beginning, the highlights the reportable defects under the appropriate standards of practice. The summary usually includes instruction to the client that anything listed in the summary is something that must be addressed prior to closing of title or expiration of the inspection contingency under an agreement of sale. This is especially helpful to me if a claim becomes a litigated matter as I can use that evidence to show that there was no excuse for the client, now the plaintiff, to claim that the language of the report was confusing in that and that they did not know that they needed to take the action specified in the report prior to closing of title.
Verbal communications create difficulties for me as a litigator because they generally fall into the "he said she said" category of statements. I routinely hear testimony that a claimant was told that the house was perfect by the inspector during the inspection, and absent some record of the verbal communications between inspector and client there's no way to absolutely prove that statement was not made. It becomes a credibility battle between the inspector and the client. For that reason I have some clients that make audio and/or video recordings of their entire inspection process and saving that information should a claim arise. While this may seem extreme, I know of at least one inspector in Pennsylvania who utilized video technology during inspection and from that video was able to prove conclusively that a condition later complained of did not exist at the time of the inspection. It saved his insurance deductible and many hours spent litigating a frivolous claim.
Inspectors that effectively communicate verbally usually have some form of conference while still at the property with their clients explaining to them the findings that will eventually show up in the home inspection report. This is the opportunity for the client to go back and look at conditions if they have questions or concerns. Additionally, I recommend that you you refrain from making "off-the-cuff" remarks and nonspecific statements about the condition juicy during the inspection.
You should take the time to review how you communicate with your clients. Review your pre-inspection agreement and a sample inspection report. Are they consistent? Are the language and definitions uniform? Does the information in my inspection report match the verbal representations I made during the inspection? Taking these small steps to being a more effective communicator is not just good service for your client, its good protection for you and ultimately, your money.