Category Archives: Business Development for Experts

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.

On Being an Effective Expert or How to Help the Jury do Their Job!

Being an effective expert means “Never forgetting that your job is to help the jury do their job.”  Even the Rules of Evidence recognize that experts help the jury, and helping the jury is what testifying as an expert is all about.

Several years ago, I was fortunate enough to hear Judge Hiller Zobel speak at the SEAK conference.  Judge Zobel made some suggestions that are worthy of repeating.  First of all, leave your ego at the door.  Testifying in court is not an opportunity to show the jury how smart you are, nor is it an opportunity to try to impress them with your vocabulary.  Instead, it is a time to provide the jury with helpful analogies that will assist them in understanding the technical material you have mastered.

Think back to the teachers and professors you admired most in high school, college and post-graduate training.  They were the men and women who took the time to think about the information they had to convey and presented the material in a well-organized, interesting and understandable way.  They were not concerned with impressing you with their understanding of the material; they were determined to teach it to you so you could acquire it, and hopefully pass it on to others.

One woman physician I know told me she presents her potential testimony to her pre-teen and teenaged children.  If they don’t understand what she was saying, they give her an “Oh, Ma”, and she goes back to the drawing table.  If they tell her, “Hey, Mom, that’s cool”, she knows she was successful.

Jurors are comprised of people from all walks of life.  Some have been to high school and not gone further, others have been to college.  Either way, there is no typical juror, and there is no “standard education” for jurors.  The one thing that I do know about jurors is that they are very serious about doing their job correctly and take great pride in reaching a fair and well-reasoned decision.  As the testifying expert, you are among those who supplies the answers to some of the questions they have that contribute to that decision.

The one thing that has always impressed me about lawyers is how familiar they are with the details of the case.  Lawyers seem to remember every date and every time.  Jurors notice this too.  When jurors have been polled after trial, many jurors have commented on how well-prepared the lawyers were.  Therefore, if you want to impress the jury, make like a Boy Scout and “Be Prepared.”

Being prepared means being familiar with the facts of the case, and being able to handle questions on cross-examination with facility and aplomb.  If you are not an expert in your field and can’t answer fundamental questions about your discipline, you should not be in court.  You are a charlatan.  This means never representing yourself as an expert in a field in which you are unfamiliar.  A little bit of knowledge is dangerous, and you will get slaughtered by the opposing attorney on cross-examination.

If you think you can “fake it,” you cannot.  It is not the attorney who will be making up the questions, it is the real expert on the other side.

Last year at the forensic sciences meeting, a colleague of mine asked me to quiz one of the toxicologists in his laboratory on the basics of narcotic pharmacology.  I asked him three basic questions, and he could not answer any of them.  The young man is far more adept at working at the laboratory bench than I am, but he does not have a good working knowledge of basic narcotic pharmacology.  Don’t get caught in that trap.  If the expert on the opposing side of the case really knows his/her stuff better than you do, you could be in for a trip to the woodshed.

Another good way to prepare to testify is to prepare the questions you want the attorney to ask you, then think long and hard about how to answer them succinctly.  In the courtroom, less is more.  Try to answer in “sound bites.”  Don’t drag on and on.

Do not be afraid of saying, “I don’t know.”  After all, who among us knows it all.  If you don’t know the answer to a question, say so.  The jury will appreciate your honesty and recognize that the questions you answered, you probably did know what you were saying.  If you make an error–Speak up and correct yourself.  “Excuse me, I think I mis-spoke.  It was 8 am not 8 pm that the accident occurred.”

Please, be yourself.  Don’t try to be someone else.  You’re not Quincy, and you’re not Perry Mason.  Don’t make jokes, respect the sanctity of the courtroom.  If something funny is said or happens, it is okay to laugh.  But the courtroom is no place for levity.  Someone was hurt, died or stands to lose a lot of money.  Be respectful.  Dress neatly and professionally, and do not wear expensive jewelry.  Treat everyone you encounter in the parking lot, the line in front of the metal detector, and in the hallways as politely as possible.  You never know who they are, or if they are going to show up in the jury box while you are on the witness stand.

Finally, I’ll end where I began.  You are in court to help the jury determine the facts at issue.  Do your homework, be prepared, and teach the jury what they need to know.  If you master this simple, yet sophisticated approach, you will make an outstanding contribution to the justice system and can hold your head up high even when the cross-examining attorney is trying to destroy you.  And, I say to you, the measure of a person is grace under pressure, and as Rudyard Kipling said (generically), “If you can keep your head when everyone around you is losing theirs, then you are a man my son!”

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.