Home inspector explains comments against ‘needless litigations’

Q: I look forward to your column as a weekly voice of common sense and reason. So I was surprised and offended by a statement you made in a recent article. Your main point was to explain that sellers should not be liable for defects that are concealed within walls, and you advised a buyer to cut his losses and move on, rather than suing the seller. But then, you took a gratuitous swipe at the entire legal profession, stating that “armies of lawyers” were standing by to file needless litigations in pursuit of excessive fees. I agree that some attorneys practice law on that basis, but is it fair to portray such practices as a general rule? As an attorney who values professional integrity, I would be interested to know your basis for this assertion.

A: Your reaction to my uncomplimentary view of the legal profession is understandable. Generalizations can unfairly tarnish the perception of honest and ethical lawyers, of whom there are many. Unfortunately, the number of attorneys who are ready and willing to undertake unworthy causes is sufficient to have damaged, not only the discourse of real estate business in America, but the quality of life and commerce on a broader scale. The resultant degradation has, in fact, become a matter of common parlance, even of humor. Consider some of the consequences in the real estate field alone:

• The standard purchase contract has expanded from a single page to more than 12 pages: thousands of additional words intended to lessen the likelihood of lawsuits against agents and brokers.

• When suits are filed for nondisclosure, it is common for attorneys to name all parties in sight: sellers, brokers, agents, home inspectors, termite inspectors, etc. The underlying strategy is simple: It is less costly for defendants to settle than to litigate.

• Home inspectors are commonly sued for defects not within the scope of a home inspection, such as termite infestation and geological soil conditions.

• The cost of errors and omissions insurance for home inspectors and others has doubled in recent years, even for those who have had no claims.

• An old joke among home inspectors declares that there are two kinds of inspectors: those who have been sued and those who will be.

Beyond the realm of real estate:

• Personal injury suits for everyday mishaps, such as tripping over a sidewalk crack, have become commonplace.

• Fast food vendors are afraid to serve coffee that might be too hot.

• Storeowners are afraid to let customers use their restrooms.

• Hotels are no longer built with openable windows.

• Good doctors have retired from the medical profession because of high insurance premiums and the fear of being sued.

• The threat of harassment lawsuits dictates what can and cannot be said in the workplace.

• Warning labels and legal disclaimers are to be found on everything we buy, from toys to can openers — from cell phones to home inspection reports.

Further examples are apparent in the arena of criminal law:

• Convicted murderers are paroled to commit further violent crimes.

• Civil rights for repeat felons are argued on the same basis as human rights.

Attorneys who promote strict legality in deference to true justice have hijacked the reputation and direction of the legal profession, compromising the safety of our streets and the civil conduct of business, in real estate and countless other fields. What these practitioners of “law” apparently forget is that the purpose of law is to promote justice and equity. Instead, the letter of the law has become an end in itself, regardless of whether justice is truly served. This sad reality is now widely recognized in mainstream society. Hence, the proliferation of attorney jokes — an attempt to make light of situations that are not truly funny.

To elevate this low state of legal practice and to restore public respect for a once-venerated profession, attorneys of high ethical commitment must actively affirm the difference between right and wrong in matters of jurisprudence, not only in daily legal practice, but in the curricula of law schools, and in the standards set forth by the leadership of bar associations. In a society where moral relativism is increasingly the predominant ethic, such reforms do not appear to be forthcoming. But we can hope, we can clarify, and we can recognize the matter for what it is.

• To write to Barry Stone, a certified building inspector, visit him on the web at www.housedetective.com, or write AMG, 1776 Jami Lee Court, Suite 218, San Luis Obispo, CA 94301.

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