Subpoena

[Alexandra Kanakis]

I was served to appear in court on an appraisal I did 3 years ago. Seems the broker did not pay attention to the foreclosure date and when they tried to close the deal discovered the property had been foreclosed on. Here's my situation:
The broker was my client, the borrower paid COD for the appraisal. I have been subpoened by the borrower's attorney. The litigation court case is done with the judge awarding to the borrower. The part I've been told to show up for is the damages.
For my time they have sent me a $9 check (this is not an error). I was told by the attorney that I will probably be in court only 5 minutes to state into fact that I did do the appraisal on the date shown but on the subpoena it was indicated that I must bring my file.
Questions:
Without the broker's permission, can I even talk about this file other to say than Yes, I did do an appraisal on *** property dated ****, without saying any value or circumstances involving the appraisal.
As you know, once up on the stand I am open game (in my mind). Although the borrower's attorney says I am only to verify doing the appraisal, I have huge misgivings. (I will reread USPAP from 1999 and the current on before I attend.)
Can the court see my file if they want to?
And last but definately not least, can I demand expert testimony fees on a subpoena although the attorney says $9 is the gooing rate for a statement of fact?
Do I need to consult with an attorney?
The date was originally 02/14/2002 but has been postponed until 03/04/2002, so I have some time to research my options.
I have said nothing about the contents of the file to the attorney, only told him $9 was an insult for a professional, and that in my understanding my responsibility is still to the broker/lender regardless of the time laspe.
He has said if the borker/lender agrees to accept the borrower's copy of the appraisal into fact I will not have to appear.
I just want to cover all my bases and be over prepared for any direction this case may go. I will not put my license into jeopardy (which I also told the attorney).
I'm asking for some advise from those who know or have gone through this.
Thanks.

 

[jtrotta]

When you open the door to the court room & appear, you are "open game" - just remember at any time you like you can invoke the (5th) 8)
and allow yourself time for a defense if you think it will be appropriate;
remember one thing if you don't remember anything else - you don't need to answer any question, in any specific amount of time (think about your answer) and be careful. Be sure to review the file, but use it for any answer (this will allow time for thought).

Good Luck 8)

 

[bradellis]

Alexandra,

This stuff goes on all the time. Attorneys believe they are the only ones entitled to make a living, but most are screw ups. Here is my advice (its free, so remember what you paid for it!):

If you are subpoenaed, you must appear. I would NOT cash the check until it is all over.

You are relieved from confidentiality because your testimony is part of the due process of law. That said, I would give no one my file unless/until I had a court order specifiying that I must do it or the judge told you to. If the subpoena includes your workfile, bring it.

When you take the stand, and the attorney asks you his/her first question, turn to the judge and ask, " Your honor, am I here in the role of an expert witness?" TYPICALLY, the judge will ask the attorney if that is the case. USUALLY, the attorney will say yes (because your testimony is is often useless unless you are deemed an expert- BUT they may say no, needing only your confirmation that you did the appraisal).

IF the attorney says yes, turn to the judge and tell him/her that you are not being compensated as an expert. The judge might even ask what you charge for expert testimony. He/she may then direct the attorney to pay your fee or lose your testimony.

(One highly respected appraiser once told me he will not even accept a personal check from an attorney and the judges would require that the lawyer go out and get a cashier's check!- But unless you know the judge, I do suggest you try this).

Answer all questions honestly with the shortest answer you can provide that actually answers the question. "Did you do this appraisal?" YES. Do not elaborate- it can ojnly cause problems. Do NOT be surprised if questions are basic- every good attorney knows to ask only questions that he/she already know the answers to.

Got a question? Ask the judge. Most are very fair; most respect you as a professional. Do NOT anger the judge- I've done so with uncomfortable results.

Good luck. Also read the record keeping part of USPAP- it may require you to keep your file longer- and DO obtain a copy of the ttranscript that contains your testimony.


Brad Ellis, IFA

 

[Tom Hildebrandt]

Alexandra

The previous posts cut to the core of the problem.

The subpoena should indicate whether you are being called as an expert or as a fact witness. If you are being called as an expert, you are entitled to be paid by the person requesting your expert testimony. This would include preparation time and costs of preparing exhibits, standby (whether you actually testify or not) and time actually on the stand.

If you are not being called as an expert, but merely to point out the fact that you did a report, you still must show up. However, your goal should be to convince the attorneys it will be a waste of their time to have you testify.

Call and tell the attorney that has subpoenaed you that you do not intend to do any work in preparation for the hearing and that you may not even be able to confirm that the written report he has is the one you did without reviewing your work file which is part of your professional work product. Tell him you intend to put the issue to the judge when you are called to the stand. The attorney knows that this is just a cheap trick to get entered into evidence a professional opinion (you're written report) without paying for your professional testimony for the use at this trial and will not want this issue raised.

The other side already plans to object (otherwise they would have stipulated that the appraisal report could be entered into evidence) and the written evidence would probably not be allowed. The legal reason for this is that if you can not testify regarding how you derived the opinion of value, the other side can not cross exam you regarding how you derived the value opinion. If experts can not be cross examined in an advocacy situation regarding their opinions, the testimony is not admissible as due process is denied. I would be willing to bet that the "subpoena" disappears unless you agree to testify orally as to the value. Whether you choose to do so is then up to you.

If you are indeed asked to testify as a fact witness, the suggestion to ask the judge if you are being asked to render expert testimony is a good one.

You can point out that you have not been allowed to prepare to present a professional opinion, and if the original appraisal was not for the litigation issue, you should point out that it was not intended to be used for litigation and should not be relied upon for that purpose what they want is for you to acknowledge that you prepared the report, and nothing else. (They do not expect you to have the work file with you and I doubt the subpoena suggests that you bring the work file, if it did, it would imply they want you to support your expert opinion. )

At this point, you have essentially two choices. You can say "yes", collect your $9.00 and go home. The crafty, albeit a bit disingenuous, dodge is that you can plead total ignorance on the matter at hand. For example, when shown the written report, you could say "It looks like it was the one I prepared, looks like my signature, but I do not know for a fact that that is my report. I wish I had been asked to bring my work file because then I could compare the report to the true copy I retained in that work file. I wish I could help, but I just can not be certain. If they ask you anything about the report, you just say I have not had the time to prepare, any comments would not reflect a professional judgement on the matter but just a guess based on my rather weak recollections of a three year old work product.

I personally do not think it will come to where you need to even show up. Just call the attorney and say I am a professional, are you going to pay me for my professional opinion or not. If he balks, tell him that you do not intend to prepare, will unlikely be able to confirm anything and will ask the judge for a ruling.

In 12 years of appraising for litigation, I only had a couple of instances where the attorney tried this kind of ploy, and the phone call stopped the whole mess from going forward.

Good luck and let us know how it turns out.

Regards

Tom Hildebrandt GAA

 

[Tom Hildebrandt]

Alexandra

I just noticed that I overlooked the fact that the subpoena tells you to bring your file.

Just ask the attorney "Am I going to have to testify regarding my work product?." If he says no, then tell him you do not plan to review the workfile or the report as there is no reason to do so, since you are not going to have to testify about the work product, there is no reason for the work file to be brought to in the court room. If he says just bring the work file just in case, say "OK but my expert fee is $zzz per hour. I need to be paid in advance for the time to prepare for possible testimony. After I testify, I will need to be paid for any standby time, including travel, and the actual time on the stand. If you do not pay me up front for preparation time, I will not be prepared to adequately discuss the work product as a professional. I will tell the judge that I advised you that I needed time to prepare and that you were not willing to pay me for this effort."

If he still insists, say "Great talking with you, by the way, just so the record will be clear, I'll send you a letter summarizing my understanding of this conversation, and send a copy to the other attorney." (Remember, you have no obligation under USPAP for appraiser/client confidentiality to this bozo, he has not retained you for your professional services.) When he says he does not want you to do this say, "Gee, I am sorry, but I want them to know that you do not want me to be prepared as a professional in this matter. It is after all my reputation, not yours, that will be at risk on the stand if I am not prepared. "

I can almost guarantee you will get a favorable response at some point along this route, usually telling you to forget the subpoena. If he tells you to forget it, just be sure you write him a letter stating your understanding that your presence is no longer required.

Regards

Tom Hildebrandt GAA

 

[airphoto]

Mr. Hildebrandt,

IMHO your posts on this subject are priceless and invaluable .. I stand (actually sit) humbled in your presence!

 

[Francois K. Gregoire]

Bill,

Must agree. The advice given is worthy of reference material. We should put these up with a 'sticky'.

Thanks for the great advice and guidance.

 

[mbrunson]

Wow this is all really good stuff. I also have heard of lawyers being forced to pay appraisers while they were on the stand, before the first question was answered. If, however the judge askes you to answer the question, you better answer.

Remember that humility is what makes knowledge wisdom.

SDG

Mike

 

[TEL2002]

Wow, what great advice everryone has given. What great timing for me. Tonight I completed the letter my office will be using to solicit work from various law offices. We are trying to diversify our client structure. My brother, a lawyer, gave me the best advice of all...get your money up front - always. I liked the sticky note idea, but since my printer does not do sticky note papers, I printed out the advice and it goes into the office "idea" folder. Thanks everyone.

 

[Anonymous]

One thing that I have not seen mentioned here, is an old trick that lawyers will try. With you on the stand, the question will be something like..." And so, after all of your work, you determined the value of the property to be $zzz,zzz. IS that correct?" and when you say yes, they look at the judge and say, your honor, I thought the court was the only authority who could determine value? Always remember, you estimated value or provided an opinion of value. You never determine it.