The Dangers of Being an Expert Witness

by Kenneth J. Jones

Tags

Appraisals, Appraiser, Expert Witness, Liability, Litigation, Testimony

CATEGORIES

The Expert Witness

In general, real estate professionals consider being an "expert witness" to be a relatively prestigious position, particularly in the real estate appraisal industry.

After all, there are very few who have the requisite knowledge to be considered an "expert," and even fewer with the ability to effectively communicate complex issues in concise, easy-to-understand statements.

expert

However, in addition to these two requirements, there's another requirement to be an expert witness, a requirement that is virtually unknown to those who have never undergone the experience of being cross-examined on a witness stand and which is also never spoken about by those who have.

This requirement is to remain calm, unflustered, alert to the issues being discussed, and provide accurate answers to the questions being asked, all while being verbally assaulted and having your integrity and honesty attacked by the lawyer conducting the cross-examination.

It is this generally unknown requirement that, far and away, has the most immediate and long-lasting negative impact on many expert witnesses.

It's Not Personal... It's Strictly Business

In real estate value litigation, the decision of the judge or a jury is almost always based on the testimony of the expert witnesses who testify in that case.

Consequently, the attorney who has to prove their case in order to win for their client is going to do whatever it takes during their cross-examination to discredit the expert witness who works for their adversary.

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While I'm not going to go into the details of the attacks I've experienced nor those I've seen others experience, I will say that to describe these experiences as "unpleasant" is a gross understatement. They can be withering.

However, as an expert witness and knowing that you're going to be subjected to some significant provocations and insults, it's important to remember these torments, which seem like personal attacks, are actually intended to fluster you to the point where you make mistakes that will discredit your testimony and damage your client's case.

Something I frequently do before taking the stand is to remind myself of what Michael Corleone said to his brother Sonny in The Godfather, "It's not personal... It's strictly business."

After all, the lawyer doing the cross-examination wants to win because winning a case is frequently required in order for that lawyer to get paid. And since you're the only person between that lawyer and their fee, you are in a very dangerous position.

What's So Dangerous?

The responsibility of an expert witness is to give testimony. And, because they are a witness and virtually never have their lawyer present, they're unable to defend themselves against the attacks and accusations made against them; they just have to sit there and take it.

Someone once described his cross-examination experience as like being tied to a chair with a gag in his mouth and being beaten.

expert

The stress from being verbally attacked, being accused of incompetence, and client advocacy tend to take their toll on most in this position. Though many gather themselves and shake it off in a day or two, some suffer deep and long-term emotional consequences.

These emotional traumas in some people have been so severe that they refuse to accept assignments that require giving testimony, while others have actually left the appraisal business entirely.

Then there's the situation that endangers the witness's career. When this happens, it's most common in cases of a bench trial (when a judge decides the case and there's no jury involved).

The scenarios vary from a judge who doesn't understand the issues in the case accusing the witness of incompetence to a judge trying to justify their irrational decision in the face of significant opposing facts by accusing the witness of being an advocate for their client.

No matter the scenario, when a judge, who's considered the ultimate source of truth, accuses a witness of either incompetence or client advocacy, whether it's true or not, that expert witness is going to suffer a significant blow to their career. And there's literally nothing the appraiser can do to overcome that type of accusation.

Remember. An expert witness was not a Defendant; they did not have their attorney present to defend them, and the witness had no ability to defend any accusation made against them.

In fact, such an accusation is an assault against which there is no ability to defend oneself. It is almost impossible from which to recover.

I Love What I Do

I've testified as an expert witness in federal and state courts and a variety of county and municipal boards since the early 1980s. And like every other person who took on this role, I've also had my share of insults and accusations. But, like it or not, that's part of the job.

Apparently, I love what I do, and I look forward to helping you with your real estate litigation matter.


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