and support a credible opinion of value. The standard of care for expert witness assignments is substantially higher than for typical valuation assignments. 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 an opinion of value which is unreasonable tend to cause cases to unnecessarily proceed to trial.
The higher standard of care appropriate for expert witness assignments extends through all phases of the assignment. The expert should precisely determine the scope and purpose of the assignment. This includes the letter of engagement, scope of work, research, report preparation, deposition and trial testimony, and preparation for deposition and trial testimony. 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. Even if the factual data regarding a comparable sale is accurate, issues relating to the motivations of the party can be meaningful. For example, if a purchaser was anxious to purchase it a property because they own the adjacent property, this could artificially influence the sales price. If an expert witness was unaware of such a fact, it could undermine their credibility during a deposition or at trial. 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. Preparing a summary report also helps to reduce the cost of an expert witness engagement. While it is important to carefully research the facts and perform a thorough analysis, there is little benefit to preparing 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. Typographical errors and minor math mistakes can be effectively utilized to undermine the expert witness’s credibility. If the expert has made a mistake, he should promptly admit it. While all people make mistakes, those who deny them lose credibility.
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. Expert witnesses who provide legitimate and credible opinions of value provide a meaningful benefit to their clients, counsel and the judicial process. Most cases settle when the experts provide a well-supported analysis.
A credible expert witness who is properly prepared to document and ar