Family Law

Selecting and Supporting the Expert Witness Appraiser

By J. Benjamin Stevens

The following guest post is from Charlie Elliott, MAI, SRA, ASA, a real estate appraiser who has served as an expert witness in court over the past 30 years.  Mr. Elliott has written this article describing some trends and pitfalls he has observed over that time in his specialized vocation:

Few appraisers are qualified for expert-witness duty. Many appraisers fail to defend their work in court due to their lack of education, training and familiarity with courtroom procedure. Litigation support extends far beyond the preparation of a basic real estate appraisal and talking about it on the witness stand. The appraisal and its related testimony is a very important part of a trial. It should be granted the resources and time commensurate with the expected outcome.

The part played by the expert witness should be viewed in importance in the way that the perceived value of the subject property is to the potential value of the case. The benefit of the expert to the case is in direct proportion to the overall emphasis placed upon expert-witness selection and pre-trial research, rehearsal and planning.

When an expert is called upon to appear in court at the last minute, little, if any, preparation time is permitted and there is usually not an adequate budget to cover the cost of the extra time required to prepare for a professional and creditable presentation. Appraisers are often not notified that they will be subpoenaed to testify, until some later date, after they have completed their appraisal and its associated report.

I once thought of my role as an expert as that of a behind-the-scenes, less-than-pro-active member of the team. This stemmed, in part, from the concept that, as a professional appraiser, I am duty-bound by the Uniform Standards of Professional Practice to provide an unbiased opinion of value. In a technical sense this has merit, however, from a practical standpoint, it frequently produces disappointing results. The objective of the trial is to bring out all pertinent facts in such a way as not to be misleading, while satisfying the jury or the judge, in a bench trial, that the property value has been accurately appraised by the appraiser. If the appraiser is ill-prepared, too much opportunity exists for the opposing attorney to create unfounded doubt in the minds of the jurors.

Given the above, I, as a litigation-support professional, offer the following suggestions:

1. Select the expert witness appraiser with care. Choose only the most professional and experienced expert available. Very small percentages (I estimate less than 1%) of the licensed appraisers have what it takes to be credible expert witnesses. In the appraisal profession, designations conferred by recognized trade associations carry the most clout. Designations from the Appraisal Institute and the American Society of Appraisers require much training, education and experience to acquire. These designations typically make a positive impression on the judge and the jury.
2. Instruct the appraiser to conduct extensive research on the development of the appraisal report to be used in litigation. Here the bar should be higher than the typical evaluation, considering that there will undoubtedly be appraisal reviewers on the opposing team searching, in an attempt to discredit the work of the appraiser in the eyes of the jury, for data not disclosed in the appraisal.
3. Pre-trial planning is critical in preparing for the big day. This should be performed in segments.
   • The appraiser should conduct a complete review of his or her appraisal, which includes a follow-up inspection of the subject property and all comparable sales. This is especially important if the trial is to occur weeks or months after the appraisal is prepared. The facts of the case must be fresh in the mind of the appraiser.
   • The supporting attorney should provide the appraiser with a pre-trial briefing of the nature of the case, which would include a list of hot-button issues that could catch the appraiser off guard during cross examination.
   • A direct, examination-questioning rehearsal session is a must. The attorney should prepare the witness by performing a personal face-to-face examination, asking all questions anticipated at the trial. The witness should be asked to suggest any additional questions that he considers important to his testimony. Answers should be evaluated to insure accuracy and thoroughness. Posture and demeanor must also be critiqued.
   • A pre-trial cross-examination rehearsal of questions, anticipated by the opposition, should be performed. This is where the advocate attorney can offer valuable insight, since the appraiser will not be as familiar with the details of the case.
4. During the trial when possible, the appraiser should be asked to appear, prior to his testimony, to listen to the tone of the proceedings and to evaluate the opposing attorney, preferably while other witnesses are being cross-examined.

During the testimony of the expert witness, it is the job of the supporting attorney to begin his line of direct examination by asking questions that put the witness at ease and permit him to state his experience and credentials. In addition to questions, which counsel considers necessary to support the client's argument, consideration should be given to beating the opposition to the punch by asking questions expected to be sensitive to the case and likely to be brought up by the opposition. These can be phrased in a way to permit the witness to provide the most positive answers to difficult-to-explain circumstances.

The additional preparation, research and rehearsal will not only increase the chances of the witness offering a gaff-free performance, it will instill some confidence and ethos within the witness, making him more believable to the jury. In all of my years of court testimony, I have felt more at ease and have been more in control when I was the most prepared. I was the most prepared when I was encouraged by the legal team to invest additional time in my research and planning and, when the budget permitted me to do so, performed a more-thorough job. I have performed less effectively when I have been drawn into a case at the spur of the moment and asked to submit an impromptu testimony.

The appraisal expert witness is as valuable to a case as he is permitted and directed to be. The proper selection, direction and critiquing of the appraisal expert witness can make the litigating attorney the hero of the trial.

About the Author: Charlie W. Elliott, Jr., MAI, SRA, ASA, is president of Elliott & Company Appraisers, a national real estate appraisal company. He has 30 years' experience as an expert witness involving real property. Mr. Elliott can be reached at (800) 854-5889, charlie@elliottco.com or through the company's website at www.appraisalsanywhere.com.

Full post as published by SC Family Law Blog on March 25, 2011 (boomark / email).