My October article is coming to you late in no small part due to a recent jury trial that took a substantial amount of my time. In this trial I defended a real estate salesperson who, acting as a buyer agent, was alleged to have committed malpractice. As in all cases where I represent a salesperson or broker, aspects of the case hinged on the available documentary evidence. Much of that evidence consisted of email to and from my client.
Aspects of a transaction can range from fast pace to crawling. What participants remember, especially from the fast-paced times, can vary wildly. A buyer may recall her agent saying that the buyer had to waive inspection contingencies in order to have her offer accepted. The buyer agent recalls, however, that waiving inspection contingencies is dangerous but in an unprecedented sellers’ market, some buyers are doing so. The agent also recalls adding that she wouldn’t recommend buying without a home inspection.
The advice I offer is what I and most other lawyers were taught on day one of our budding careers: document your conversations and advice. Back then, a follow-up letter was the norm. Today we have it so much easier because we can fire off an email from anywhere at any time!
A confirming email should follow nearly every conversation whether that’s with your client, another agent, an inspector or anyone else participating in the transaction. Other than an exchange of pleasantries, stick to the facts: “This confirms our conversation of earlier this morning where we went over the fact that the listing agent has reported receipt of competing offers. We discussed the pros and cons of waiving contingencies and the fact that I can never advise you to do so given the fact that you will bear the risks if you eventually find latent defects. Many buyers are doing so and I understand your great desire to acquire the home, but you will have to consider all of the unknowns we discussed.” Most confirming emails can be more brief.
While sending a confirming email can take moments, it deserves your observing a few rules. Write every email as though it will be read to a judge or jury, real estate commissioner or anyone else asked to judge your conduct. Avoid derogatory comments, statements about appearance, race, religion, national origin and the like.
The most important thing is to get in the habit of confirming conversations and advice. If you can’t send a confirmatory email directly after a call, at the end of your day review your activities and fire away. An end-of-the-day review is also a good way to remind yourself of tasks that need to be completed so you can update your “to do” list.
When engaged to defend a REALTOR® in a malpractice case, the first thing I do is obtain the complete transaction file, including all correspondence. I can almost predict the outcome shortly into my review of the file. Is it organized? Are all of the documents required for a transaction included? Does the correspondence corroborate my client’s account and paint the picture I care to deliver in court?