Expert witness testimony is a subset of litigation support services. The expert witness' primary responsibility is to develop and support a credible opinion of value. The standard of care for expert witness assignments is written to appropriate standards for courtroom use. Both opposing counsel and the expert witness representing the other party will likely carefully review and scrutinize the expert's underlying data, analysis and final report. Expert witnesses who develop a credible opinion of value and are able to effectively articulate it help to effect resolution of cases prior to trial. Expert witnesses who develop an opinion of value which is unreasonable tend to cause cases to unnecessarily proceed to trial.
The appropriate standard of care for expert witness assignments extends through all phases of the assignment. The expert should precisely determine the scope and purpose of the assignment. All data needs to be researched and verified. In many cases, even if sales data has been previously confirmed, it will be verified a second time for the expert witness assignment. The calculations and thought process for the analysis need to be checked and double-checked, as do the report. The expert needs to carefully prepare for both deposition and trial testimony.
Appraisers sometimes believe that preparing a voluminous narrative appraisal, totaling perhaps 200 pages, which effectively documents their opinion is helpful for litigation. However, it is virtually impossible to prepare a voluminous document without overlooking minor errors. For this reason, is typically better to summarize the data and opinion instead of presenting them in a voluminous report.
It is imperative that the expert witness understand that the objective of opposing counsel is to discredit the witness and their testimony. Any aspects of the experts' opinion, data, analysis or testimony which does not appear to be reasonable provide opposing counsel an excellent opportunity to discredit the expert witness.
The expert witness needs to be an advocate for their analysis and opinion, not for their client. Novice expert witnesses sometimes succumb to pressure from clients or other parties to develop an opinion which is not reasonable, credible or supportable. While this approach initially appears helpful to the client, it does not typically provide meaningful assistance to legal counsel or the client since it is not credible evidence for trial. Therefore, it is not efficacious for resolving litigation. In addition, opining an unreasonable opinion has a deleterious effect on the reputation of the expert witness.
A credible expert witness who is properly prepared to document and articulate a credible opinion is an integral part of the team necessary to resolve cases before trial or win at trial. Legal counsel and the expert witness need to directly discuss the strengths and weaknesses of the case. Although a credible report may not comply with the exact preference of the party or counsel, it is an effective method to provide counsel with the insights they need to effectively resolve the case.
Author Resource:
The appraisal division of O’Connor & Associates is a national provider of commercial real estate appraisal services including cost segregation studies, due diligence, insurance valuations, business purchase price allocation , feasibility studies, financial modeling, gift tax valuations, highest and best use analyses, casualty loss valuation and HUD map market studies.
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