From a small northwestern observatory…

Finance and economics generally focused on real estate

Expert Witness Testimony

with 3 comments

Deviating a bit from my normal blogging, I’m reminded that a fair number of us who do what I do end up on the witness stand testifying about economic and financial problems.  Given the after-shocks of the recent recession, there is no shortage of opportunity to put on a coat and tie and drink bad courthouse cafe coffee for those of us who dabble in that sort of thing.

That having been said, surprisingly few “experts” have a stomach for sitting in the witness box (and all of the lead-up to it).  Indeed, the actual testimony itself is a bit of a let-down usually (particularly when it goes well).  It’s the lead-up and preparation for the testimony which causes all the acid indigestion.

For readers who have been approached to potentially serve as an expert in a litigious matter (I call it that, because in my experience fewer than 10% of such disputes actually end up in a courtroom), there is an excellent article in the current issue of The Appraisal Journal by a real estate appraisal-expert, David C Lennhoff, MAI, SRA, and an attorney, James P. Downey, JD.  Titled “Litigation Lessons:  A Practical Guide to Expert Testimony”, the article focuses on the real estate valuation expert.  Nonetheless, the advise transcends any of the professions or disciplines which might be called on to offer expert testimony on complex matters.

The article is broken down into two parts — the appraiser’s perspective and the attorney’s.  Without reviewing point-by-point, several ideas stood out, and I believe there may have been a few items left out:

Preparation — Both preparing the expert and jointly preparing the expert/attorney relationship.

A confident attitude — Not to be confused with arrogance.  The former is necessary, while the latter is the death-knell.

Clarity — Think, write, and speak to translate complex topics into simple language.

Familiarity with the terminology — Both the legal terms and the “expert” terms.  To a large extent, the expert is there to translate complex litigious issues into simple terms for the Court.  (See “clarity” above.)  With that in mind, the “expert” needs to be the Judge’s and Jury’s walking, talking dictionary, to explain what these complex issues are all about.  This requires that the “expert” actually be “VERY expert” in the topic at hand, both in the jargon and what the jargon actually means.

I would suggest that one important topic was not covered well in the article.  One critically important role for the expert witness is explaining the case to the attorney/clients.  These attorneys frequently come to the expert with an idea of what the case is all about.  Of course, only the most experienced attorney will have a grasp of the nuances of the expert’s field, and more often than not the attorney will have an “idea” about the direction of the expert analysis and testimony which needs to be molded into something slightly different (or, in some cases, something RADICALLY different).  Since 9 out of 10 cases seem to settle before getting to the courthouse (at least in my experience), the expert really earns his or her fee by helping the attorney craft a case that can be successfully settled before actual testimony is needed.

Written by johnkilpatrick

August 30, 2012 at 5:56 am

3 Responses

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  1. Thanks for nice comments, John. Your last point is well taken.

    david lennhoff

    August 30, 2012 at 6:00 am

  2. Wonderful advice & I appreciate the insight & sharing of this article. Thank you John. I must share the following for all:
    I have been in court as expert witness on 3 occassions recently & it had everything to do with explaining how I arrived at my value opinion, my appraisal process, my training, (credentials & experience), & integrity. ……..
    but once I made it very clear to all in the court that I was an advocate for the value only, not for an individual (plantiff or respondent) or entity, this seemed to settle a whole lot of concerns for the Judge, Jury & both sides.
    The plantiff may have hired me, but if the respondent had hired me, the value would be the same, it is what it is & I can only be an advocate for the value. It is simple if this is addressed early in the testimony. A valuable lesson for me.
    This may go without saying for those of us who are called upon as expert valuation witness, but that maybe the defect in our testimony, i.e., we “may go without saying, or indeed early in our testimony, “that we are advocates for the value only.”

    Larry Newsome

    August 30, 2012 at 8:21 am

  3. Very good comments!
    Thank you

    Alan G McElwain

    August 31, 2012 at 5:13 am


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