Expert Witness Practice Tips

•Don’t hitch the wrong animal to your wagon.

Two things about me you should know:

• I am a “standard of care” expert, not an appraiser. I can do appraisals, but I don’t. Other experts do them better – so I refer them. But I do most of the other things in real estate really well.

• I firmly believe the trial attorney I work for is the “conductor of the orchestra.” I’m something like a “first violin.” However, I will disagree with the attorney, be up front about bad news and err on the side of wanting to read more discovery. At the end of the day, I want to do the best job possible and I will tell you if I haven’t been given the resources.

I have a few suggestions that can make my job easier. These are some of them.

• Avoid the Clean Shoes Syndrome

That term refers to an expert’s (and attorney’s) failure to look at a property before they opine on it. Look at the property; not doing so can be a fatal flaw in your discovery.

I’ve written a separate section on this topic, click here to read it.

• Avoid Laundering Depositions

I personally read the depositions I am furnished. Some experts don’t. In most depositions there are things you can read between the lines. Discovery in a lawsuit is not the time to play “Reader’s Digest.” An expert who has someone else read and summarize depositions misses important details.

For me, directly reading a depositions reveals more than history and facts; it disclose information about the deponent such as honest, competency, sophistication and opposing attorney preparation – all of which have an influence on the credibility of the witness

For instance, if a witness testifies “I don’t recall,” 130 times in 140 pages that tells you a lot about the witness, his honesty and his preparation.

The depositions also suggest questions that will be asked me in my own deposition and allow me to prepare for them.

• Avoid Boutiquing the Expert

Boutiquing the expert means both furnishing the expert only that discovery that supports the employing attorney’s arguments and withholding the discovery that doesn’t. This makes some attorneys feel they have done a safe and proper job of preparing the expert. It is not likely to encourage any affection from expert to the attorney.

“Mushrooming” is another way of expressing the practice – keeping the expert in a dark place and feeding him pig poop.”

Proper preparation includes preparing the expert with the opposition’s best arguments.

• Recognize Standard Forms Are Universal in California

The evolution of the California Association of REALTORS auto-fill-in standard forms has created uniform paperwork in California as well as a general standard of care as to which form should be used in residential real estate transactions. A real estate expert witness in Orange County encounters the same forms as he would find in other counties in the state.

• Recognize When Different Codes of Ethics Apply

The same statewide effect of CAR’s standard forms is true of the National Association of REALTORS Code of Ethics. Major topics such as “fiduciary relationships,” “fair and honest dealing” and “competency” are covered the same in all the counties of California as well as all the states in the United States. A real estate expert working in Orange County can usually find the same transgressions in the same set of standard documents as a real estate expert in any other county.
Note two things, however, about real estate codes of ethics:

MLSs, specialty groups such as commercial agents and property managers, appraisers and even home inspectors also subscribe to codes of ethics and rules which affect their conduct. Also, even though the NAR Code of Ethics fits primarily with residential agents, a case can be made to hold commercial agents responsible to the same code.

• Measuring Cost

The most expensive expert is the one who loses the case for you.

– A. Scott Herd