Relocate to Wisconsin : A Deposition is an Imposition...BUT.....

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

     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.

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


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Comment balloon 42 commentsSally K. & David L. Hanson • April 06 2018 09:13PM

Comments

Good morning,  Sally and David.  Smart post, savvy advice. 

Posted by Michael Jacobs, Los Angeles Pasadena Area Real Estate 818.516.4393 (Coldwell Banker Residential Brokerage) 2 months ago

Morning Sally.

I have a saying I repeat often: "If it's not in writing it didn't happen, if it's not in writing it doesn't exist".  Sometimes it takes a rude awakening for agents to get it

Posted by James Dray, Exceptional Agents, Outstanding Results (Fathom Realty AR LLC) 2 months ago

Good morning Sally. Being deposed is no fun. Deposing me without a valid reason is a nightmare for the attorney who does! Enjoy your day!

Posted by Wayne Martin, Real Estate Broker (Wayne M Martin) 2 months ago

Good morning, Sally K. & David L. Hanson (Sally).... wonderful advice for all to clearly understand and follow.... thanks for sharing it.... we can never have enough and you provide the bottom line.

Posted by Barbara Todaro, "Franklin MA Homes" (RE/MAX Executive Realty ) 2 months ago

This is great advice, although it's a shame we need to worry about this possibility. I've seen some totally unexplainable behavior and know for a fact that in this litigious society, anything can happen, rational or not.

Posted by Kat Palmiotti, The House Kat (Grand Lux Realty, 914-419-0270, kat@thehousekat.com) 2 months ago

Good morning Sally and David.  Thankfully I've never had to go through this in my career.  I hope it remains like that. 

Posted by Gabe Sanders, Stuart Florida Real Estate (Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales) 2 months ago

Good morning Sally and David. Documentation is crucial and it matters most when things are tough.

Posted by Sheila Anderson, The Real Estate Whisperer Who Listens 732-715-1133 (Referral Group Incorporated) 2 months ago

Good morning Sally K. & David L. Hanson ,

Excellent advice! NEVER assume!! Always research and verify and save every email, text and document, document! So important in our litigious society.

Posted by Dorie Dillard, Serving Buyers & Sellers in NW Austin Real Estate (Coldwell Banker United Realtors® ~ 512.346.1799) 2 months ago

Any litigation can and does affect a person each one differently. Furthermore, we live in a country where we decide everything by law. If one wants to know the depth of exposure, read the traffic, criminal and civil codes as well as BRE rules and regs and the include the MLS and oaths of office. Chances are there is some violation at work we may or may not know about. Amping it up is the stakes involved...

Posted by Richie Alan Naggar, agent & author (people first...then business Ran Right Realty ) 2 months ago

WOW!  This is a wake up call.  This scenario is always in the back of mind.  I think it's time to move it up a row or two.  Thanks for posting.

Posted by Chris Lima, Local or Global-Allow me to open doors for you. (Atlantic Shores Realty Expertise) 2 months ago

Wow what an eye opener for all of us and a good refresher. When you deal with people anything is possible and it could get really ugly that’s why you always CYA cover your asset in every transaction.

Posted by Muhammad Mushtaq, Broker/Realtor (Weichert, Realtors® - SBA Group) 2 months ago

Document everything is the best advice. It's also a requirement under our State regulations. If they do an audit, extensive notes had better be in the file. My lawyer husband is always a good partner in terms of ensuring we have all the little stuff documented - e discovery is a very big deal these days. 

Posted by Debb Janes EcoBroker and Bernie Stea JD, REALTORS® in Clark County, WA (ViewHomes of Clark County - Nature As Neighbors) 2 months ago

I am blessed with 15 years paralegal experience.  Documenting is in my DNA. It takes a lot of time to document yet I cannot imagine not doing it.

Congrats on the Feature post!  People not only need to read it - they need to follow your words of wisdom.

Posted by Kathleen Daniels, San Jose Homes for Sale-Probate & Trust Specialist (KD Realty - 408.972.1822) 2 months ago

Exceptional post and congratulations on the well-deserved feature.

Posted by MaryKay Shumway, Door County Wisconsin's Real Estate Expert (The Kellstrom Ray Agency, Inc. (Est. 1948)) 2 months ago

Can't control the uncontrollable. Good warning and expressed well Sally and David.

Been through this on a small scale with a new build. Fortunately, we had meticulous records and prevailed although it wasn't pleasant and was extremely time-consuming.

Posted by James (Jim) Lawson, DBA, Broker Associate, RSPS, BPOR, HI & PE (DomainRealty.com LLC) 2 months ago

Good afternoon Sally and David - this is so much the case.  I know it only too well from the employment arena.

Posted by Grant Schneider, Your Coach Helping You Create Successful Outcomes (Performance Development Strategies) 2 months ago

I was deposed once.  It lasted 8 hours.   The "contractor" my clients were suing tried to make me look like an idiot.  It didn't work.  Despite their attempt to make me wilt, I didn't, and based on the deposition the "contractor" decided not to pursue things further.

Posted by Jay Markanich, Home Inspector - servicing all Northern Virginia (Jay Markanich Real Estate Inspections, LLC) 2 months ago

Sally K. & David L. Hanson This is good information.  Just a bit of trivia for you.  In New York, depositions are called EBTs - Examinations Before Trial, and what you speak about attorneys being able to ask anything at the beginning of the deposition is often called a "fishing expedition," as I'm sure you well know.  

Posted by Elyse Berman, PA, Boca Raton FL - (561) 716-7824 - CRS, ABR, GRI (Best Connections Realty, Inc.) 2 months ago

Read it and heed it! So many believe that this will never happen to them - it's not a question of if but, when. We work with so many different personalities and you just never know when the whackadoodle will come out in someone that you never expected it to!

99% of the time it's a waste of money for them but, it's a true time-suck for us - ESPECIALLY if things are not properly documented. I'm the Type-A person that is obsessed with documentation - it's there - ALWAYS!

Posted by Debe Maxwell, CRS, Charlotte Homes for Sale - Charlotte Neighborhoods (www.AtHomesCharlotte.com | The Maxwell House Group | RE/MAX Executive | (704) 491-3310) 2 months ago

It's totally riduculous - now, IF you had wronged someone, that would be a different story. It's just so frustrating to deal with everything that is thrown at you and then, in the end, they are found to be mistaken and you receive ZERO compensation for your time & efforts. 

I had an agent go after me for using a url that was close to hers - she felt I was snagging business from her because of the similarities in urls. Funny thing was, it was a custom site that the engineer owned the domains - with the like names for each city he built one in. We all know that you can have a domain name like anyone - no one can stop you from that. However, this agent was adamant about it and pushed forward through the entire process - through grievance, etc...thinking that SOMEone would listen to her pitiful story.

It all went away when I was found 'not guilty' but, it was a total time-suck and, as you said, a waste of trees too. Sadly, she never apologized to me and I got absolutely nothing for my troubles.

Posted by Debe Maxwell, CRS, Charlotte Homes for Sale - Charlotte Neighborhoods (www.AtHomesCharlotte.com | The Maxwell House Group | RE/MAX Executive | (704) 491-3310) 2 months ago

Congratulations on your feature recognition. Thanks so much for sharing your experience and your advice.

Posted by Roy Kelley, Roy and Dolores Kelley Photographs (Realty Group Referrals) 2 months ago

Hi Sally and David, I had a transaction where I had to stop answering phone calls from the other side because I wanted to have everything in writing in case it involved legal action at some point. I wasn't sure if my documentation of calls, discussions were enough, and wanted to be sure what I wrote was exactly what was meant to be written/said.

Posted by Marney Kirk, Towson, Maryland Real Estate (Cummings & Co. Realtors) 2 months ago

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

Posted by Ron and Alexandra Seigel, Luxury Real Estate Branding, Marketing & Strategy (Napa Consultants) 2 months ago

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.

Posted by Ken Jones Commercial Real Estate, Automotive & Industrial Real Estate (VRI Realty, Inc.) 2 months ago

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. 

Posted by Dan Tabit (Northstone Real Estate Inc.) 2 months ago

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. 

Posted by Michael Eisenberg, Bellingham Real Estate Guy (eXp Realty) 2 months ago

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!

Posted by Kathy Streib, Home Stager - Palm Beach County,FL -561-914-6224 (Room Service Home Staging) 2 months ago

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

Posted by Gita Bantwal, REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel (RE/MAX Centre Realtors) 2 months ago

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!

Posted by Eileen Burns, FL Probate Agent, Hotel & Land Specialist (Trans State Commercial RE Ft. Lauderdale/Miami/Palm Beach) 2 months ago

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!

Gene

 

Posted by Gene Mundt, IL/WI Mortgage Originator - FHA/VA/Conv/Jumbo/Portfolio/Refi, 708.921.6331 - 40+ yrs experience (NMLS #216987, IL Lic. 031.0006220, WI Licensed. APMC NMLS #175656) 2 months ago

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.

Posted by Nick & Trudy Vandekar, 610-203-4543, Tredyffrin Easttown Realtors, Philly Main Line (Long & Foster Real Estate Inc 610-225-7400) 2 months ago

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.

Posted by Jerry Lucas, Mobile Notary Colorado Springs, CO Notary Training (ABC Legal Docs LLC) 2 months ago

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!

Jeff

Posted by Jeff Dowler, CRS, The Southern California Relocation Dude - Carlsbad (Solutions Real Estate ) 2 months ago

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

Posted by Gary L. Waters, Broker Owner, Waters Realty of Brevard, LLC, ... a small office, delivering big service! (Waters Realty of Brevard, LLC) 2 months ago

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.

Posted by Karen Feltman, Relocation Specialist in Cedar Rapids, Iowa (Cedar Rapids/Iowa City, IA KW Legacy Group) 2 months ago

Words of Wisdom, Words of Warning.

Words well taken.

Thanks for sharing.

Posted by John Wiley, Lee County, FL Real Estate GRI, SRES,GREEN,PSA (Right Move Real Estate Group- EXP Realty) 2 months ago

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 

Posted by Jon Zolsky, Daytona Beach, FL, Buy Daytona condos for heavenly good prices (Daytona Condo Realty, 386-405-4408) 2 months ago

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

Posted by Laura Cerrano, Certified Feng Shui Expert, Speaker & Researcher (Feng Shui Manhattan Long Island) 2 months ago

Dear Sally & David,

Excellent advice.

Posted by Dörte Engel, ABC - Annapolis, Bowie, Crofton & rest of Maryland (RE/MAX Leading Edge) 2 months ago

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

Posted by Jan Green, HomeSmart Elite Group, REALTOR®, EcoBroker, GREEN (Value Added Service, 602-620-2699) 2 months ago

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. 

Posted by Corey Martin, Real Estate and Management Solutions (Martin Presence Group) 2 months ago

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.

Posted by Thomas McCombs (Century 21 HomeStar) about 2 months ago

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