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

Written on Friday, May 10th, 2013 by Edward McCutchan, Esq. , SUNDERLAND | McCUTCHAN, LLP.
Filed under: Business Development for Experts, Working with Experts

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.

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.