There is a definite legal difference between a flooring inspector and a consultant. My business started more than 23 years ago. When I first started, I marketed myself as a flooring inspector. Most of my work came from manufacturers and this was what they wanted when a warranty claim was filed. They wanted someone to assess the floor, installation, and other relevant information, submit readings, field tests, or other data, and write a report with a conclusion……PERIOD. They did not want to know if it could be repaired or not or how to repair it; that was THEIR position.
Over time with growing credentials and experience, I was being asked to do more than just assess the floors. Often I was being retained as a 2nd or even 3rd person who looked at the floors. If a manufacturer sent out an inspector and the claim was denied, often it left the other involved parties with no answers or if or how the concerns could be remedied.
Other times, builders, installers, retailers, homeowners, or any other involved party got tired of seeing claims denied, problems with no answers, or feeling like the inspector blamed things totally unrelated to the concerns which got the claim denied. Sometimes, involved parties may want to hire someone to take their side or protect their position at almost any cost. Let’s take a look at a definition:
Who is considered as a hired gun?
A “hired gun” refers to the sort of expert witness who is willing to offer and, if necessary, testify, to whatever expert opinion that advances the hiring attorney’s case theory.
If your intention is to avoid inadvertently retaining a hired gun, here are 4 clues you can look for.
1) The Expert Asks What Opinion You’re Looking for.
In some cases, the hiring party may not come out and say this directly, but they will imply it. I sat in a room of flooring inspectors several years ago. One of the lead claims people for a major floor manufacturer actually came out and said something like this:
“We keep track of how many times inspectors we hire find the problem as manufacturing. If we feel like they are calling too many claims against us, our system will flag them. We may put them on a temporary do not use list. If we start using them again and we find it continues to happen, we may just put them on a permanent do not use list.”
Yes, she said this (maybe not her exact words, but very close) and one of my peers who was heading up the training looked at me and asked if he just heard what he thought he did. I assured him not only did he hear her correctly, I know of at least a dozen LONG TERM HIGHLY credentialed inspectors who became that person. I even had a competing manufacturer send me a claim, but inadvertently, the analyst attached their DNU list by mistake.
Sadly, this is often true more than not so more experienced inspectors looked at changing their business model to consulting so they could be hired to go behind “hired guns” engaged by manufacturers. When a claim is denied based on information that was inaccurate or unrelated to the concerns, this speaks for itself. Ethical people would ask the inspector to remove inaccurate, unverifiable, or irrelevant information from the report and report just the information they could validate and was related. Welcome to the world of large companies with deep pockets and high priced legal teams who can violate rules and get away with it.
2) The Expert Only Works for One Side
Another red flag is if you can find out if the inspector only works for manufacturers or 3rd party services used by manufacturers. Some inspectors find this is a safe haven as almost never will a case ever head to court and many inspectors shy away from claims that are likely to head to legal action.
Again, some more experienced inspectors are comfortable going to court to testify as an expert and some of us find it a niche business model with few competitors. There are enough inspectors who made bad calls (intentionally or not) or are newer and uncertain of their abilities so we found another business model to eliminate competition. We became consultants and started selling our services in this manner.
Nearing 15,000 inspections, I can’t think of many involved parties I have not been retained to represent. About the only one that comes to mind is architects. Other than that one (and I have worked with several architects on claims I was retained on), just about every other involved party in the process has retained me at one time or another. I have been retained as a court expert witness by most involved parties too.
3) The Expert Always Agrees
Can the inspector show evidence they found NOT in the favor of the party that retained their services? I have been hired by almost every involved party; more than once, my findings did not go in their favor. I tell people upfront and it is clearly on my website that my opinion is not for sale at any price. I am like an umpire and call balls and strikes. I do not change the strike zone. I am not playing, I am not the batter, the pitcher, fielder or manager. I do not care who wins or who loses; I am paid to call balls and strikes.
That said, I also will NOT make a call I can’t back up with evidence just to blame someone. There is no shame is stating the facts and evidence I can determine and end by saying without more evidence or whatever, I can’t come to a definitive cause. Even the smartest doctors defer patients to other doctors or hospitals because they can’t come to a conclusion. There is no shame in not having every answer.
I also learned very young if you tell the truth, it is pretty easy to back up what you can and not have to remember things like those who make things up or even fabricate things. Stick to the truth and facts and it is fairly easy to defend your position. The judge or jury will evaluate everything and it is up to them to make a decision based on evidence presented. Lying may work for politicians and actually and sadly, it has become their standard more often. But I refuse to sell my integrity for any price and will not.
If inspectors always take the side of the party hiring and paying them, this can be problematic. If their report would change depending on which party hired and paid them, this is very problematic. Facts do not change and the report should read similar regardless of which party hires and pays the inspector. Sadly, I go behind a few who have and do sell their integrity for money. Most of them never end up in court to defend themselves so they can get away with it more easily hiding behind the manufacturer.
4) The Expert Claims to Have “Special Methods”
In more than 23 years in the business, I have not heard of anyone selling themselves by having or using “special methods”. I know there are a couple of 3rd party services who sell their services to manufacturers assuring them more times than not, claims will come back in their favor. Ironic how they can assure their client this will happen on floors that have not been installed or inspected yet, but this is how they market.
In one case, one 3rd party inspection service owner was sued for a 7 figure sum because unbeknownst to the inspector they hired, the owner or one of his reviewers changed the report. The owner of this service in a public training session not only admitted he had that right because he hired and paid the inspector, he had done it more than once. He said clearly: “if I hire and pay the inspector, I can change their report.”
When it went to court, the other side subpoenaed that report, but also the inspector and their file copy and it came out they did not read the same. When the manufacturer lost their case once evidence came out, they immediately questioned the service owner and filed a counter claim for damages. His service not only cost them their case, but embarrassed them publically and on record for something they never asked for or knew took place. He lost their account as well as the counter claim.
Science requires reproducibility. This means that people other than the expert you are talking to could apply the same methods and come to the same conclusions or obtain the same results. Science is also verifiable. In other words, someone should be able to look at another person’s work and verify methods were followed. Both reproducibility and verifiability require methods and procedures that are known. If only one person knows how to perform a given analysis, the method cannot be verified and the results cannot be reproduced. THIS is why there are no magic tricks or special methods or services.
Now, let’s look at what an inspector can do. They can assess the floor, the installation, site conditions, maintenance, or other data and gather evidence. They can report on their findings based on pictures, data or other evidence they can support. They can write a report on their findings. They can cite manufacturer or industry standards and report an opinion based on all of that.
What can’t the inspector do? Obviously not give legal advice unless they are a licensed attorney. I am not an attorney; I work with several and in several states so I can and do recommend attorneys if asked that a client can contact for legal advice or representation. Unless they are a licensed engineer or other trade or specialist, they can’t comment on faulty construction or construction issues. I often refer clients or their builder to bring in a licensed structural engineer for their assessment if there are potential related issues.
Inspectors are not supposed to give remedial action or repair advice if they are acting as an inspector. This includes giving information on pricing of materials or services or recommend contractors to do repairs or replacement. This is not the role of the inspector.
Consultants have more latitude. What is a consultant?
CONSULTANT Definition & Legal Meaning
A professional that has expertise requested for a fee. They work as an advisor but is not responsible for the outcome. Providing expert knowledge to another party for a fee. This is done when a party or company needs another opinion on an issue.
What is the federal definition of consultant?
Definition. Professional and consultant services, as used in this subsection, means services rendered by persons who are members of a particular profession or possess a special skill and who are not officers or employees of the contractor.
As a consultant with those skills, legally I can be retained to inspect or assess the floor. I can be retained to review any reports produced by other parties. I can be retained to consult or advise my client (not as an attorney or other licensed profession) where as an inspector, I do not have that latitude.
Do you see why more seasoned inspectors changed their business model? We have decades of training and multiple credentials. Our backgrounds are more advanced and over time, we have worked with a LOT of professions and learned things many inspectors have not. We also found we can charge more for our services because we have much more to offer and can consult with clients and get claims reversed if they were wrongfully denied based on inaccurate, incorrect, or irrelevant information.
I live in the southeast so I know most of the more seasoned inspectors and most newer inspectors. There are some recently trained and certified I may not know, but once I know their name, can easily validate their credentials and background. All of us at one time were the new inspector so that by itself is not always a bad thing.
BUT, I also know work I used to get hired for by manufacturers slowed down and some stopped using seasoned inspectors due to the newer ones would work cheaper and take their side more often. More seasoned inspectors found it necessary to either differentiate their business model and offer services other inspectors were not or could not, or work for less money to keep getting some of the work.
Another change seasoned inspectors found is we had attained credentials no longer offered or ones most of the newer ones had not qualified for or may not even qualify for based on required experience. That meant we had access to work the newer inspectors either could not get or would not do, we could market ourselves to a broader client base using our knowledge and experience and get paid accordingly.
More than 75% of my work is as a consultant. I am starting to inform potential clients to the differences between inspectors and consultants; this is why I had my web guy put this on my website. I make sure my clients know I am still certified and qualified to do their inspection or 2nd or 3rd opinion inspection. But as a consultant, I can wear other hats and do services for them I can’t as an inspector. My report will not have any of my certification numbers on them, or even use the word inspector or inspection.
I always provide the potential client a current CV before I am retain. This way, they know I am qualified to do the inspection, but in most cases, I will use the terms consulting or assessment consulting to make it clear my role is more than just as an inspector. As a consultant, I am not governed by the certifying bodies because I became an expert or consultant; no training school or certifying body can dictate/govern those services. I have much wider latitude to work with my clients and even their attorney if needed. I can offer services or advice I could not if I operated as an inspector.
My certifications are current and valid; my reports should be legally accepted by any manufacturer or other parties no differently. They may not agree with my findings; this is fine. Obviously my client did not agree with the findings of their inspector or the claims person denying their claim. In court, the judge will not only admit that report, but it is likely to carry more credibility based on additional services, experience, training, and detail supporting my findings that their inspector’s report did for them if it was denied over inaccurate or non-relevant information.
Just know if you need an inspector, there are those who changed their business model to consulting. The inspector will still maintain their credentials, but they just found offering the client a higher level of service using their experience and allowing them to consult and advise is worth more than just an inspector. If a claim goes to legal, you will not regret hiring the inspector as a consultant and neither will your attorney.