Author Archives: Edward McCutchan, Esq. , SUNDERLAND | McCUTCHAN, LLP.

About Edward McCutchan, Esq. , SUNDERLAND | McCUTCHAN, LLP.

Firm Website | Mr. McCutchan obtained his Juris Doctorate Degree from Golden Gate University’s School of Law in 1985 and obtained his Masters of Law Degree from McGeorge School of Law in 1986 in Business and Taxation. Mr. McCutchan also serves as an expert witness advising in attorney and realtor standard of care issues as well as agricultural matters in the viticultural field for the past fifteen (15) years. Mr. McCutchan worked for medium sized law firms in California representing real estate brokers, developers, contractors, agricultural interests and concerns throughout the state of California. Mr. McCutchan is an adjunct professor at Empire College School of Law teaching “Wine Law” . Mr. McCutchan has been involved in numerous appellate court matters, including three (3) published decisions. He has taken approximate 100 cases to trial, binding arbitration or administrative hearings in the criminal and civil forums.

Qualifying an Expert Witness at Trial

Daubert Rules: Qualifying an Expert Witness at Trial

An expert witness to a litigated case ordinarily used by an attorney serves two functions:

  • As a consultant with respect to issues of a matter.
  • As a witness providing testimony at a deposition and/or at trial.

In order to serve as an expert in any capacity, the individual must demonstrate significant experience in a field of study recognized as legitimate science.  This article is designed to discuss expert opinions based upon scientific evidence, for example, DNA testing and methodology in a criminal case.

Daubert Trilogy:

The criteria for an expert’s testimony and the standard for reviewing by the trial court has been set forth by three seminal cases consisting of Daubert v. Merrell Dow Pharmaceuticals, Inc (1993) 509 U.S. 579, 113 S. Ct. 2786; Kumho Tire Co., Ltd. v. Carmichael (1999) 526 U.S. 137, 119 S. Ct. 1167; and General Electric v. Joiner (1997) 522 U.S. 136, 118 S. Ct. 512. These three United States Supreme Court decisions are commonly known as the “Daubert Trilogy,” They set the standard for how experts are qualified prior to assisting before or during trial.

Under the Daubert standard, the trial court evaluates expert opinions upon reliability for scientific evidence in a given legal dispute. The reliability prong for the offered scientific evidence is:  1. whether the scientific theory has been reviewed by scientific peers and published (theory accepted); 2. whether the scientific theory has been tested;  3. the perceived known or possible rate of error for the scientific technique and 4. whether the theory has obtained general acceptance in the scientific community.

Qualifying an expert at Trial:

In order to qualify an expert witness for trial, the attorney offering the expert must demonstrate to the presiding judge at trial that the witness is competent in the area of offered testimony and the area of offered testimony is such that an ordinary person would need assistance in understanding the subject matter. For example, DNA explanation, testing and linking in a criminal matter.

The offered expert may be qualified through education, skill, training, knowledge, practical experience or all. As a pre-requisite for expert testimony, the offered expert must be able to articulate to the court the underlying methodology and procedures utilized in formulating his or her opinion(s) on the precise subject matter at issue.  Such includes hands-on experience, literature review, training, and education. There is no clear rule as to the degree of knowledge needed to qualify an expert in a given area of expertise. Once competency in the given area is established under the “Daubert Trilogy” the expert’s knowledge of the subject matter of his or her testimony affects the credibility of the opinions offered at trial on direct and cross examination.

It is the trial court that determines if the offered expert can testify as a matter of law in a particular field. Essentially, the trial judge determines the following: 1.That the scope of offered expert testimony is such that an ordinary person would need to hear the expert opinions in reaching an opinion where the ordinary person does not necessarily have the knowledge of the offered subject matter, and 2. Whether the person offered to give the expert testimony has the necessarily knowledge, training, experience, skill, and expertise in the area where expert testimony is offered to be given to render an expert opinion.

It is imperative for a trial attorney to make sure that the person retained as an expert is qualified to render an expert opinion at trial in the subject matter designated in the expert witness disclosure. This is why experienced trial attorneys typically disclose experts who have already been qualified to testify by another judge in prior cases that have gone to trial.

Effective Trial Techniques For Cross-Examining Expert Witnesses

Effective Trial Techniques For Cross-Examining Expert Witnesses

Effective trial techniques for cross examining the opposing expert begins with preparing for the expert’s deposition before trial, taking an effective deposition of the expert, and then utilizing the generated information from the deposition in a series of questions at trial to bolster all the favorable answers for one’s client and to the judge or jury.

To effectively cross-examine an opposing expert witness, the attorney has to come in prepared to do battle with a person who has far more education, knowledge, background, and credentials in the subject matter than the lawyer.   The attorney’s initial preparation starts with a thorough review of the relevant facts of the dispute, familiarizing himself with the subject, and formulating the legal issues involved.  The attorney may even want to hire a consulting outside expert who has specialized experience in the field. If opposing side retains an expert, that expert is also a very effective source of information.  The key portions of the opposing expert’s report –the conclusions and assumptions on which the expert opines — are the fodder for effective cross-examination. Once identified, one can tailor an effective rebuttal.

Effective techniques:  To effectively cross examine an opposing expert at a deposition or during a trial, an attorney should:

  1. Understand the key issues and facts of the case and then, focus upon litigation strategies, including the use of one’s own experts to lay out in a clear, understandable manner the facts and the substance of the opinion for the judge or jury;
  2. Thoroughly examine all the evidence, including the scene of the incident, closely and in person.  The attorney should be intimately familiar with all the facts and evidence in the case and be prepared to refute what the opposing expert has said.
  3. Diligently read and examine all the documents the opposing expert has prepared before conducting the deposition or going to trial.  Expert witnesses, as part of the process, produce documents such as appraisals or expert reports. The attorney should locate and highlight any significant disclosures and representations made in the documents that support his or her stance.
  4. Learn as much as possible about the opposing expert’s professional background. Read publications authored by the expert.  Read other cases where he/she appeared in the role of an expert witness.
  5. Consult other attorneys who have had experience with opposing expert in similar cases.  To see just how effective (or not effective) a witness is, sit in a court and watch his/her testimony in other matters.
  6. Consider feedback from your own expert (whether a consulting or testifying expert) to help you formulate differences between the respective experts.  Your case might become even significantly stronger if your expert can show that there was no basis or substance to the opinion, or the assumptions/methodology relied by the opposing expert were problematic.

Questions for trial:  The techniques for cross examining any expert let alone an appraiser expert do not differ than what would be ordinarily used with another witness or a party to a lawsuit.

  1. Ask only questions that have a response with a yes or no answer.
  2. Start strong with questions that (a) are effective for your case where the answeris already known to the attorney and (b) will capture the attention of the judge or jury.
  3. Have simple and short questions so that the judge or jury can readily understand them.
  4. Make sure the answer to every question is known to the attorney. After all, the expert’s deposition was supposedly taken.
  5. Focus solely upon vulnerable areas for the other side and his or her expert.
  6. Use exhibits that tell the story. They keep the judge and jury tuned in.
  7. Do not lose your or the jury’s focus by repeating already admitted issues in the cross examination. Once admitted, move on to the next point.
  8. End the cross examination at trial on a high note such as a damaging admission by opponent’s expert that favors your client.

Conclusion:  Cross examination of the other party’s witness is important at trial. Focusing upon the trial’s theme, the differences between the respective experts, and discrediting the opposition’s expert, results in an effective cross-examination of any expert.

Real Estate Standard of Care Expert

Key Challenges of a Real Estate Standard of Care Expert in Deposition and at Trial

Selection A. Real Estate Standard of Care Expert:

When selecting an expert real estate standard of care expert for trial, an attorney ordinarily selects a real estate broker who has been involved in at least fifty (50) real estate transactions or a real estate attorney with substantial practice in the field. To qualify as an expert, one has to have special knowledge, training, skill, experience or education in a particular subject matter. This broad definition allows a licensed real estate broker to testify in a real estate dispute provided he or she qualifies as an expert and has an opinion with respect to the particular standard of care issue at the heart of the legal dispute.  Whether the expert witness is a licensed broker or an experienced attorney, the witness must be able to show training and professional practice that establishes status as an expert in the field.

Challenges

Selecting a Strong Expert Witness: The biggest challenge for an attorney in selecting a real estate standard of care expert is to retain and designate someone will not be exposed as weak on cross examination by a skilled practitioner, particularly if the other party’s standard of care expert is well qualified in the area of disclosure as an expert. The jury will be instructed to consider the qualifications of the competing experts, and the stronger or more experienced one in the state of the field and the issues of the case will have an advantage.

Believability:   In trying real estate standard of care cases, believability of an expert is based upon his or her professional experience in the real estate market. The key element in the expert’s testimony is being believable with respect to the facts of the underlying transaction and the ultimate opinion rendered.

One way to make an expert witness effective is to make sure he or she is well prepared as to the issues.  Before retaining an expert, it is imperative that the attorney clearly explain the facts of the case to the witness, and how those facts align with his or her professional expertise. Throughout the course of a case, it is equally important for the attorney to keep the expert up-to-date and familiar with the progress of the case and convey any changes or setbacks that are relevant to his or her opinion. This will give the expert a chance to make last-minute changes to his or her opinion or the underlying data.

A competent expert who has prepared a well-founded, cogent opinion and can testify in language understandable to a law jury will be considered more credible than experts with incomplete and inconsistent reports.

Retain an expert (consultant) early: Far too often attorneys select a real estate expert at the last moment and without much thought of what the real issues are. Custom and practice is to mail the complaint as soon as possible to the real estate standard of care expert for an early opinion well, before expert witness disclosure. This allows an opportunity to ferret out issues in discovery that an attorney might not initially see.

When representing a plaintiff in a real estate action, the attorney should have already consulted with a standard of care expert to make sure that naming him or her is supported by the facts of the matter and that the expert is qualified in the field to render an opinion on the issues in the case.

Conclusion:  The biggest challenge that a real estate standard of care expert faces is being adequately prepared for deposition or trial by the attorney designating the expert assuming , of course, that the designated expert qualifies in the subject matter. Sentiment is that experts either fare well or poorly at trial based upon the documentation and evidence provided or not provided from the very attorney who retains the expert. Hence, it is important for the attorney representing his or her client to assist the expert and prepare him or her to challenges to their report.   With effective and well-prepared experts, matters that seemingly are headed for trial often settle  through compromise, rather than leave it to judicial strangers.

How Does a Real Estate Appraiser Expert Deal With Weaknesses in His or Her Case?

Every retained trial expert will eventually be faced with a situation where he or she may be facing an uphill battle with respect to shaky, weak opinions expected to be rendered at trial. Some real estate cases set for trial simply have BAD facts for one side or the other that cannot be totally explained away. Under these circumstances, the retained appraiser simply has to make the best of what the facts are in rendering the necessary opinions in a weak case for the client or attorney.

Expert Witness Preparation:  To formulate a defense in these situations, the attorney and  the real estate expert witness must prepare a presentation of the appraisal opinion that can be understood by jury members who have little or no knowledge of the valuation process. Easy to understand language combined with attractive and engaging exhibits can help jurors understand a difficult topic – giving the expert testimony more credibility in a weak case.

The appraiser should also be prepared to deal with weaknesses in his or her position on cross examination.   While it is impossible to anticipate every point of attack, and the questions that will be asked, preparing to explain all aspects of the appraisal in an effective manner helps the expert emphasize the strength of his or her testimony when challenged by opposing counsel.

Confront Weaknesses: Every real estate case has weaknesses that an expert cannot simply ignore.  A well prepared and successful real estate expert witness knows where he or she is vulnerable, but is fully able to speak about these weaknesses in a way that makes them appear trivial. Psychologists have shown that one is more persuasive if both sides of an issue are raised by the expert as opposed to adopting a “used-car-salesperson” approach of trying to hide obvious points of vulnerability. Weaknesses of an appraiser expert should usually be buried in the middle of each phase of the trial, never at the beginning or the end since the jury or judge will remember beginnings and ends more readily than the middle.

Accordingly, the real estate appraiser expert needs to recognize, acknowledge and have an explanation for gaps, inconsistencies and improbabilities of his client’s case. By doing such, the real estate expert can minimize harm and bolster his own credibility more to the jury or judge.

Likewise, recognizing the other side’s position and evidence is key. By analyzing the opponent’s case to determine where the disputed expert opinions, theories, and data supplied are deficient and addressing consistencies and inconsistencies of the other expert with plausible, relevant explanations will create a greater chance of exposing at trial why the other side is wrong in forming his/her opinion  and thus raising doubts about his or her expertise.

Common Mistakes Made by a Real Estate Appraiser Expert at Deposition and Trial

In real estate disputes, a real estate appraiser is typically called as an expert witness to render an opinion as to diminution in value of a given property at the time of close of escrow if the property is purchased with undisclosed problems such as mold, water intrusion, pest infestation, rotating foundations and the like for the buyer.

The most common mistake by an appraiser expert at deposition or at trial is not being well-prepared for testimony in court.  Clearly examining and reviewing all the data that may shed light on the issues is highly necessary if the expert is to appear credible and believable when he articulates his opinion and the bases for it. If the appraiser does not know what the specific issues are in a particular case, for instance, water intrusion and diminution at close of escrow, the appraiser is at a disadvantage in not being able to assimilate estimates for the costs of repair– current and at the time of the underlying sale– in his or her analysis. The result is a shaky opinion and the expert is vulnerable to an embarrassing cross examination by experienced opposition. This lack of preparation damages the expert’s credibility as a witness. The greater prepared the expert is and the care taken in communicating the substance of the report to a lay jury means less wiggly room for hostile examinations.

Another common mistake for a real estate appraisal expert is not familiarizing himself with the real estate. Not actually setting foot on the property or visiting the comparable properties used in his analysis will raise doubts as to his credibility and the thoroughness of his approach.  Again, a good cross will highlight the fact that these were not considered by the expert.

Another general mistake of an appraiser in deposition or at trial is the manner of verbal communication to the judge and jury. Talking down to the jury or judge throughout the course of a case may come across as arrogant and off-putting to a lay jury. An expert should speak clearly, understandably, and authoritatively on his findings and the methodology used in order to have maximum impact on the jury. The key is to show knowledge and trustworthiness, not ego.

When an expert fails to concede that an appraisal is merely an opinion (there is no exact science in appraising a home), this expert can be viewed by the jury as a “know-it-all”, potentially diminishing his credibility. In fact, a deviation of 10% between experts in value is acceptable within the industry. The most seasoned appraisal expert concedes that his appraisal is simply an opinion subject to other interpretive methodologies but so long as the methodology that is pertinent to the case is relied on and the expert physically examines the property and is familiar with any up-to-date comparables, the appraisal expert typically will be prepared to take on any opposition.

Finally, an expert should bulletproof his or her resume. Although an expert’s resume is not ordinarily introduced into evidence at trial since its contents are typically mentioned in the qualification process, mistakes or weaknesses in the resume can be expected to be commented upon by the opposition to discredit the witness’s qualifications.

Trial Techniques for Effective Testimony by Real Estate Standard of Care Expert

Introduction:  Real estate standard of care experts are typically a licensed real estate broker or a licensed attorney. In a professional negligence claim, both may render “expert” opinions when a lawsuit involving a real estate professional is brought by someone seeking damages, claiming the professional fell below the standard of care commonly exercised in the community.

Trial Techniques:  First and foremost, a good expert witness in real estate standard of care must be prepared—whether it is at a disposition or in a courtroom.  Meaning, to establish credibility, the expert must appear knowledgeable of the issues involved in the proceedings and have thoroughly reviewed the complaint, answer, cross complaints, answers, transactional file, written discovery, deposition testimony, expert witness disclosures and all other materials pertaining to the issues. Once reviewed, the expert will meet with the attorney and go over anticipated questions and opinions, what are the likely areas of inquiry, and how opposing counsel will attempt to impeach his or her credibility.

Effective testimony when I place one of my experts on the stand follows this course:

  1. I qualify the expert regarding his or her name, personal background, degrees, professional licenses, teaching experience, professional accomplishments, publications, past experiences as a testifying expert in real estate standard of care, the locality of counties where the testimony was given, and the scope of the expert testimony.
  2.  Once the expert is qualified I ask what documents were reviewed in formulating his expert opinion(s). This opens the door for the expert to go over the complaint, answer to the complaint, deposition transcripts, transactional documents and written discovery.
  3. Moving forward, I ask if he has any expert opinions (which the answer is always “yes”) and then ask, what are the opinions? Asking an open-ended question allows the expert to simply give his or her opinions in a manner that does not seem rehearsed, robotic, or contrived, versus a series of  Q’s and A’s. This makes the expert appear friendly, more believable and persuasive to the judge and jury. This mode of questioning also forces the opposing counsel to go through the laborious task of cross examination based upon short opinions.

Expert witness demeanor:  Whether the expert is in a courtroom or at a deposition, the expert should look professional and act professionally.  To communicate credibly to the judge and jury, the expert should answer questions simply, with confidence and accuracy, making eye contact with the judge, jury and all counsel.   Projecting the same, steady demeanor while explaining his or her methodology establishes rapport and credibility, regardless of who is doing the questioning. The key is to be believable and trustworthy with his opinions, referring back to supporting documentation, to lead a jury to a clearer picture of what transpired. What the expert says and how he says it can successfully turn a judge and jury in the expert’s favor or “turn them off”.

Critical is the fact that the expert is not the “advocate” for a party. The expert is –for all and intents and purposes –a teacher to both the judge and jury. A confident expert will truthfully and succinctly present his opinion(s), in plain language, on why the duty of care was breached. Evasiveness does not fare well in deposition and certainly not in the court room.