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

Written on Tuesday, May 14th, 2013 by Edward McCutchan, Esq. , SUNDERLAND | McCUTCHAN, LLP.
Filed under: Business Development for Experts, Working with Experts

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.

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.

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.