Trials and tribulations of a real estate expert witness
Originally appeared in Bay Area News Group publications on September 21, 2012
Being a Bay Area real estate expert witness can sometimes be fun, like the time I testified in court with a giant blow-up of one of my newspaper articles in front of the jury. Mostly, however, it is a stressful assignment that only a handful of real estate licensees choose to experience.
As an expert witness, I volunteer to be verbally accosted by opposing attorneys. In their zealous attempt to discredit my opinions and testimony, many lawyers on the other side of my cases seem to want to chew and spit out my larynx.
Aside from the jousting at depositions, arbitrations and court, other issues add to the difficulties of doing expert witness work.
Not retained early enough
I belong to two networks of expert witness professionals. One of the biggest complaints from those who work in disciplines that range from accident reconstruction to trade secret theft and hand writing analysis to hidden or deleted computer files, is that many attorneys hire and designate their experts very late in the legal process. This is a reflection of busy lawyers juggling perhaps too many cases, but is also a function of limited budgets. Although hiring experts late in a case appears to save the plaintiff or defendant client money, it often costs them more in the end.
When retained earlier in a dispute, the expert has adequate time to review relevant materials and let the attorney know his or her opinion of the strengths and weaknesses of the case. This information can assist counsel in possibly modifying his or her “theory” of the case and how best to proceed.
When experts are called in at the 11th hour, especially at the point where depositions have already been completed, attorneys lose what could have been valuable input from the expert. Although this may not change the expert’s opinions, important opportunities to strengthen the case are frequently missed and this is a cause of great frustration to me and other expert witnesses.
As an example, I read a deposition in a recent case where key questions were not asked of one
of the agents because the deposing attorney did not understand the real estate business. This is common with attorneys who are generalists.
Missing documents
It is the job of the attorney who hires me to provide all the necessary documents so I can establish an opinion on my part of the case. Regrettably, some lawyers have to be constantly pushed and prodded to produce paperwork that I should review.
Usually, attorneys who function in this unprofessional way are also dropping the ball in other areas and are not doing the best possible job for their clients. I avoid working with them again.
Poor attorney communication and follow-up
The best lawyers keep me informed about the case and dates when I might be needed. Others are hard to track down and are not speedy about returning phone calls and emails.
As his expert, I need to be clear on the attorney’s view of the case. Understandably, attorneys prefer that their experts read the documents and reach an opinion without undue influence. Nonetheless, it is the lawyer’s job to communicate his approach to the case with me once I have agreed to work with him. Often, I have to ask because he did not volunteer his theory.
If my opinion does not support his case, it is best for him to hire another expert. Unfortunately, when the expert is hired and designated to the court at the last minute, it may not be possible to switch experts.
I used to love you, but it’s all over now.
Many attorneys I meet are good human beings, both before and after a case is complete. Conversely, others remind me of the Rolling Stones song. Once the case is concluded, they are slow responding to phone calls and emails and even slower in issuing checks for my services.
That, as they say, is life in the fast lane, but it is interesting how some apparently friendly, likable attorneys become cold strangers when they no longer need us. This is obviously not a smart business practice because experts who are treated that way will not work with those lawyers again. And, the word does get around.
Final Thoughts
With all these drawbacks, from possible missing body parts to constant stress from attorneys, why would anyone want to be an expert witness? One big reason for me is that I learn something new each time I go through the process and this information is helpful in my real estate sales practice. Another is that a legal case is like a sports competition, and I find that challenging.
As a Realtor and Northern California real estate expert witness, one fact is always predominant in my mind – an agent’s job is to work in the client’s best interests. Those who consistently do that rarely end up in legal disputes.
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