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.