To Tell the Truth
It was like an Old West shoot-out between two gunslingers. The appraiser for the opposition strolled onto the witness stand and smoothly stated his values early in the trial. The plaintiff's attorney was pinning her hopes on the court-seasoned expert to lead them to victory in the what-is-it-worth confrontation. Then, suddenly, the defense's expert showed up and introduced her value conclusions in hopes of achieving the same thing, turning up the heat in the what-is-it-worth shootout. With a highly trained appraiser, the defense was aiming directly at the plaintiff's expert's lack of training. Who will be left standing when the smoke clears?
I often listen to appraisers that are or have testified as experts about the bungling idiots they have encountered as the opposition's experts. Why can they testify if they have no formal training? Maybe we need to learn about the ins-and-outs of who can and who cannot testify.
There are two individuals that can testify about the value of property - the owner and an expert witness.
If you own something, then you can testify as to its worth. It does not matter that you are not an appraiser.
For example, a woman owning a diamond ring can go to one or more jewelers and ask them to give her an idea as to value. No report, no formal steps taken by the so-called appraisers, merely over-the-counter guesstimates. She can then testify as to the value of her diamond ring based on these freebie valuations. The next time you have a customer wanting a guesstimate - remember that it can used in a court of law.
Is this an unlimited privilege? This widely accepted dictum of law is based on the presumption that owners are familiar with the characteristics of their properties, have knowledge or are acquainted with the uses and purposes of their properties or have experience with dealing with them. Therefore, it is assumed that owners will also know the values of their properties. Thus, the admissibility of an owner's testimony of property values can be limited but is most likely allowed.
Aside from the owner of a property, real or personal, the only other person that can testify as to value is an expert witness. Expert witnesses testifying about the value of a property are qualified if he or she is deemed so by the judge. An expert does not have to be a member of an appraisal society. Nor do they have to be a specialist within a general field just because specialists exist in that field. In essence to qualify is all too easy. If one has special knowledge, skill, experience, training or education - they are almost certain to be qualified.
The Judge decides ultimately who is qualified to testify as an expert witness. In order to influence the Judge's decision, opposing attorneys sometimes will invoke a process called voir dire. It is a preliminary examination which the court may make of one presented as a witness (or juror), where his competency, interest, etc. is objected to.1 In other words, the opposition will challenge the expert. Although most think that their expertise will be challenged but that is rare as usually it is advocacy and overstated credentials that are targeted.
An ammbush, as any war seasoned military veteran will tell you, is a trap in which there is no way out. Once in, you are picked off one at a time until no one is left alive. Attorneys may forfeit their option to a voir dire and ambush the expert. Ambushing an expert on the witness stand is an exhilarating experience for even the most hardened litigation attorney. Watching the witness pale when he or she realizes the trap but cannot possible avoid the eventual question that cuts to the quick.
Jot this down - two out of every five appraisers lie or exaggerate about their professional credentials. If you call and inquire about each and every entry in their professional profile and discover a falsehood - that is a silver bullet for a sharp shooting litigator.
You are most likely pondering on the fact that this witness was lying about her credentials. Odds are strong that you will discount completely all her previous testimony. It does not matter if the appraiser did a good job, had correct identifications and determined solid values for the items involved. She lost credibility with just one question. The Oregon Jury Instructions reflect the courts' view of lying when it states "If you find that any person has intentionally given false testimony in some part, you should discount the rest of that person's testimony."2
Hearsay, for the most part is not allowed as evidence. The basic rule is that everyone has the right to face their accusers. Hearsay bypasses the ability to face and question one's accuser. An example of hearsay is "I heard John say that he saw Mary beat the dog."
But there are numerous exceptions to the hearsay rule. Appraisers must gather information from others who are active in the market in order to determine a value. If you interview thirty paperweight dealers for a case, the court will not require each and every one of them to be present for the trial. You, as an expert witness, can testify as to what they said. You are an exception to the hearsay rule - as far as information gathering for appraisal work is concerned.
It may be nice feeling to be an exception to the hearsay rule but it has its downside. You are the most dangerous person to the opposition because you can introduce evidence based on hearsay. To balance that power, the courts allow the opposition to question your credibility during testimony.
Experiencing an attorney who is skilled at cross-examination, pun intended, is a humbling experience. One of the favorite tactics of seasoned lawyers is to point out to the judge or jury that the appraiser went beyond his expertise. As an example, many gemologists testify on how a gemstone became damaged. Gemologists are not trained about analyzing fracture-interrupted polish lines, mapping impact origins and other techniques used by fractographic experts to determine how a fracture came to be.
One area of concern may be your fees. You can be asked about your fees - remember your credibility can be examined and diced if possible. If your fees are somehow connected to the outcome of the trial, you are in trouble. You cannot charge a fee contingent on the value, probable outcome or a favorable outcome.
Review your professional profile and ensure that each and every entry is true and correct. Design your fee structure so it is an hourly rate, a flat fee or combination of the two but never contingent on anything like value or outcome. Lastly, do not be surprised if the owner is allowed to testify as to the value of their property. In fact, they can testify as to the value and retain and use an expert too.