From a small northwestern observatory…

Finance and economics generally focused on real estate

Musings of an expert witness

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I JUST spent the entire week in booming, Towson, MD, testifying in a little-known, not-well-covered case called “Allison v. Exxon.” On the surface it seems like a fairly straight-forward case: In 2006, an Exxon station in rural Baltimore County spilled a lot of MTBE-laden gasoline (at least 26,000 gallons). The gasoline flowed into the drinking water aquifer, and contaminated the well water for a fairly large, up-scale neighborhood. Hundreds of houses and dozens of businesses are affected, and after 5+ years, the remediation is still ongoing. A small, preliminary case went to court a couple of years ago (we were not involved) and the significant jury award demonstrated that the subsequent cases, as they went forward, had the potential to be extremely expensive for Exxon and would potentially send a message about MTBE litigation.

The current trial, which has been ongoing for several months, will continue for at least another two months. Then it goes to a jury. As the stakes have gone sky-high, so have the players. Both Exxon and the plaintiffs up’d the ante on law firms. Exxon is now represented by DLA Piper, perhaps the largest corporate law firm in the world. The plaintiffs are represented by Peter Angelos, one of the most successful trial attorneys in America (and, coincidentally, the owner of the home-town Baltimore Orioles.) Naturally, we were called in as real estate valuation experts and economists to measure the monetary damages. I just testified this week, and of course my involvement behind the scenes is ongoing.

I actually testify in fewer cases than people might think. At Greenfield, we do a LOT of litigation support, but we’re glad that our work helps our clients settle the majority of cases outside of the courtroom. (For more on this, see a recent article on the website, LawyersandSettlements.com.) Success at the expert witness “business” requires thinking not only about what we do but more importantly thinking about HOW we do it. As such, the past week has caused me to focus a lot of attention on that “how” component, and I’m writing this blog entry more for my own memorialization than anything else.

As I think about the “how”, three things come to mind:

Experts have to be careful with their egos. The best experts have very strong egos — they have to, because in the run-up to trial, their opinions, expertise, and findings are challenged repeated. Good experts have very strong internal editorial systems within their organizations, and are constantly willing to put their own egos aside in favor of the pursuit of excellence. However, to get on the witness stand (and deposition, and meetings with clients, and inevitable reversals), the expert has to be able to withstand a withering intellectual assault. A strong enough ego, however, can be a two-edged sword. A clever opposing attorney can make mince-meat of an egotistical blow-hard on the witness stand. I’ve seen really fine testifying experts simply melt-down under that sort of pressure. It’s not pretty.

Stay at the cutting edge of your body of knowledge, but not beyond it. There is a “safety zone” right at the front edge of the body of knowledge. Whatever the field, there is always a “current body of thought” concerning methods and standards. In real estate valuation, it’s obvious that the older methods have been severely called into question during the current real estate melt-down. As it happens, there are great new methods that have been tested and found superior (hedonic modeling, time-series indices, contingent valuation, etc.). These are well tested and established methods. Ironically, many “old-hands” at testifying in court are too busy playing “witness” and spend very little time maintaining themselves as “experts”. They fail to keep up with the current literature. They may publish, but it’s usually about things that were old-hat 20 years ago. When faced with newer methods from the other side of the courtroom, they have no foundation to comment, and as such do a poor job for their clients.

Keep it simple Ironically, most “expert” work is highly technical. However, every testifying expert should be able to describe and discuss what he or she did in a very short “elevator pitch”. It has to be simple. In my experience, jury members are usually pretty bright, and typically want to be engaged in the “show”. However, they want to know that there is a simple theme to the expert’s work. If it’s too convoluted, even though it may be true, it doesn’t “seem” true, and hence won’t be compelling to the jury.

Written by johnkilpatrick

April 16, 2011 at 9:58 am

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