The Miami Herald reports that a EBay seller has filed a defamation lawsuit against his buyer. A clock purchased for $44 arrived broken to the buyer who obtained a refund via PayPal and posted a negative review, warning other potential bidders and buyers about the seller. The seller, who is a lawyer, chose to look at this a ruining his “commercial reputation” and had process served on his buyer. He is suing for $15,000 in damages.
As the old saying goes, anyone can sue anybody for anything at any time.
Naturally, not every complaint will be sustained as having merit. Yet, some of the most interesting cases are those meritless cases that move forward. Sometimes such ongoing action is based on a small, but signficant point of law, and at other times a merely baffling ability of people to interpret and misinterpret that which should be common sense.
The most dire consequence of this is the chilliing effect it has on the free market. Whether it is a jackass seller suing a buyer or a bad claim against a good service provider, we've all witnessed our share of stupid lawsuits.
This sort of action to me is like the robber who falls through a skylight and sues the homeowner or the laywer whose suit is r uined and sues the drycleaner for millions.
Yet, unlike the title industry has gone to a model of casualty payoffs, I would encourage abstractors to remain steadfast in preventing liability through a few good practices which are in addition to maintaining liability insurance:
1. Maintain good notices, disclosures, and disclaimers regarding public records failure points.
2. Disclosue all elements of your research accurately and precisely, including sources of data, methodology for gathering the data, search results and date/time stamps of the results.
3. Provide you client with all research notes and materials examined during the course of your work.
4. Be clear and precise in our offers, counteroffers, deliberations and final understandings. Write and speak with precision. Assume nothing and ask every question in three different ways. Maintain written records of all correspondance (preferably by email) between you and the client. Addendize this as the basis for your mutual understandings to your reports.
5. Pass along disclosures and notices from public agencies that affect your research. If a website or an in-house database has a posted notice, copy it and include it in your reported.
6. Do not be afraid to use the Public Records Act. As an advocate for your client, if you are not being given access to public records that you need, then issue a request under your states' Public Records Act to gain that access. Otherwise, how can you say that you've done your due diligence without accessing those records? Annotate details of this process to your report.
7. Don't rest on your credentials. No PhD in Library Science, title of Attorney-at-Law, or Private Investigation license in hand is sufficient to do research if you don't have Common Sense. Your ability to think rationally in order to understand what you are doing. Rub two brain cells together because a degree is not a qualifier for doing this work.
8. Do not skip stages or ignore good practices. Two of our competitors are out of business; one, because they assumed that they did not need to report Subordination Agreements to their client and felt no need to ask about this omission, and the other because he counted the number of recons showing on the screen and knocked that many Deeds of Trust out as paid (yep, for real... wow, huh?). Do not be lazy, and do the actual work.
The insurance if for those who accidentally miss something having done due diligence and having taken all reasonable steps to complete the project. The insurance will pay for the lazy slackers too, but that is a sad day that the rest of our premiums increase as a result of bad researchers like those mentioned in item 8 above.