Guy Berry's Expert Witness Blog


I think that you might sometimes be missing some important documents on your Request for Docs by not understanding how agents work in today’s market.

In too many cases, the request will go only to the Brokerage house asking for any documents in their possession regarding the specific property or transaction. Even though you want these, there are several problems with limiting it to the Brokerage.

First, the Brokerage only retains the documents that the agent turns in at close of escrow. Most larger companies have a inhouse closing checklist, which says …these are the documents the agent needs to turn into the office to be paid. In most cases, this process is handled with benign neglect in that many agents are paid without the required documents And, they requirements change from company to company. You will be amazed how extensive or limited these check lists are.

Secondly, you should specifically request any administrative type forms the brokerage uses including the closing checklist, any internal instructions on how agents are supposed to use the checklist, procedures manuals, employment contract, commission splits, etc. When they don’t provide something, it gives you and your expert a good beginning on depo questions.

Besides requesting forms from the Broker, you need to specifically request the agent to provide a copy of their file, including copy of front and back of any file folder they used on the transaction. Most of the time, the agent will have many more documents in this file since they only turn what the office requests.

It is also common today that agents will have an administrative person helping them with their documents. They are typically called a Transaction Coordinator (TC). This person can be a person working in-house for the brokerage, an employee of the agent’s personal admin staff team or an outside independent 3rd party. These 3rd parties may be in house, a local contractor or a virtual assistant. This is why you might need to tweak your Interrogatories to find out who else was involved in the transaction so you can request their docs as well. I can tell you from experience that some of the best documents you need are not in the Broker’s hands.

The other thing that most attorneys fail to ask for is email and text communication. Agents rarely, if ever, write letters. Most communication is now by email, so be sure to ask for it separately rather than …..”all communication including but not limited to …..” And, considering that most of our clients are techy types, many of them only communicate by text. Most brokerages do not require email or text copies to be turned into the office closing package.

When you ask for emails and texts, remember that there are a lots of players in this transaction, so seeing copies of all the communication between them might win or sabotage your case. So, I think you will have more success by asking specifically for emails to or from the buyer, seller, seller’s agent, buyer’s agent, their TC, one or more lenders, escrow officer, Title officers, inspectors, office staff, MLS worksheets and printout, MLS change forms, any offers made by buyers that were not accepted and repair people, whether work was done or not. I think if you are more specific, instead of just asking for all communication, you will better results.

Good hunting.