Subpoena

[Alexandra Kanakis]

Thank you Forum Members. Your input has been very helpful.
Yesterday the borrower's attorney called me to ask if I would do a drive by on the property to give an estimate of value in the current market.
I told him I did not feel comfortable with that, that it could be perceived as a conflict of interest, muddy the waters, and that if he needed one and did not know of another appraiser I could refer him to one.
That sort of stopped him and he said he would confer with the defendent's attorney before making a decision.
Somehow I just don't trust this guy. If he is in fact what he claims - a real estate attorney who has done a lot of work similar to this - then my instincts tell me "trap".
I will be writing him a letter outlining what has been talked about, asking him to respond in wirting exactly what my function at the court will be, and discuss my fee schedule. In one thread we discussed our files and I said mine were thick with all the investigation for me to arrive at an estimate of value. Well, this could be one of the more important files I compile and certainly should not be less than a normal appraisal file. Again I thank the Forum for helping me to crystalize on direction I must look at and what actions need to be undertakened.

 

[Don Clark]

8)

Great post everyone. And great advice. I might add that if I testify, I do always establish my position up front as being an expert witness. Also, I have several "C's" I follow:

Do not be Confrontational
Do not be Cute
Do not be Cranky

Do be Concise
Do be Correct

Also, unless a subpoena is issued with a writ of Ducus Tecums(spelling may not be correct), you are not required to produce documents. The aforementioned writ is latin for "produce the records".

Don

 

[Larry Lyke]

Alexandra --

What's the court contest about? The $9 is just the state statutory courtesy compensation award that comes with the summons (decided back in 1890 or therabouts).

If you read your Limiting Conditions you ought to collect your fee for showing up beforehand. That might stop the attorney in his tracks.

You'll probably find out the service was just meant to be an annoyance that attorneys use to mark up their client billing.

Remember, the judge is usually privy to what's going on. If it's much of anything beyond routine, the attorneys have already had in chambers pre-arrangement approved by the judge or phone calls/conferences with the judge.

You only get surprises on Perry Mason.

 

[bradellis]

Folks,

What a coincidence. After I posted a response to Alexandra yesterday, I get a call from a fromer student and friend in Chicago who just got subpoeaned on not one but two cases! Called to ask my advice!

Have not checked- is there a full moon on the horizon?

Brad

 

[Robert Muir]

If you were served a subpoena, check the back pages in all that gobbly-gook, there are alternatives listed there if you do not want to comply. I was served a subpoena in January and the below is part of the document that I submitted to the court and mailed to the lawyer. I haven't heard from either since that time. Good luck.

Bob

"According to paragraph 7 of the subpoena, I am making a written objection to the Seventh Judicial District Court.
According to paragraph 6(i) I can object because this subpoena requires that I take a copy of the appraisal to a law office located in an adjacent town approximately 60 miles to the southeast. This is an estimated 120 mile round trip that will approximately take two hours driving without compensation for gas or time. I am self-employed and will cause me to lose between 2 and 2 1/2 hours of productive work and income.
Paragraph 6(ii), states that the subpoena should allow for 14 days to respond. This subpoena did not allow at least 14 days; a Deputy Sheriff of Grand County issued it to me on 01/11/02.
According to paragraph 6(iii), I object because this subpoena requires me to disclose confidential research, development and commercial information. This appraisal was not conducted for the owners, but for a third party.
Paragraph 6(v) also states that I have a right to object if this subpoena requires me to disclose an unretained expert’s opinion. Neither of the Attorneys for this action has been in contact with this office and ordered an expert’s opinion for court action.
The appraisal in question was completed for a (borrower)xxxxxxx. The client on this appraisal was xxxx Mortgage Company and the appraisal has an effective date of November 28, 2001. The appraisal was completed as a purchase appraisal for financing from xxxx Mortgage Company. This appraisal was completed for lending purposes only and not for any family disputes or for court actions.
In summary, please be advised that the requested appraisal was not completed for zzzz & zyyy bbbb, but for a third party at a lending institutions request to use for purchase financing. To use somebody else’s appraisal as an expert’s testimony in a court setting without any paid compensation could be misleading and should not be allowed.
This appraisal report was prepared for the sole use of xxxx Mortgage Company to assist in a mortgage lending decision. It is not to be relied upon by any third parties for any purpose, whatsoever.
As per paragraph 8 of the subpoena, I now have no obligation to comply with the subpoena until the party serving the subpoena has served me with a court order that compels me to comply.
DATED this 15th day of January 2002."

 

[Tom Hildebrandt]

Robert

Excellent! Like your style.

Regards

Tom Hildebrandt GAA

 

[Anonymous]

In my state my lawyer buddy (and local municipal judge) told me that to be subpeonaed for statement of fact, show up early enough to go to the clerk's office and request the check (which should be paid by the court from money put up by the atty asking for you). If there is no check, leave. Otherwise, they will have to negoiate your fee.

 

[maitca]

Alexandra:

Remember that a judge can order you to do just about anything in his/her courtroom and your choices are pretty much those of compliance or contempt of court.

Your attorney is right in that questions put to you will probably be minimal. The other attorney will just want to get it on the record that you did produce the appraisal. Remember, if an attorney is not very sure of how you will answer a question, the attorney will not ask it. If you have not been deposed yet, the attorney does not know how you will answer a question, if you are a good witness, are easily rattled, etc. The LAST thing an attorney wants is the other side's expert witness ripping up his client's case.

As to your fee, send back the $9.00 check UNCASHED, with a note that your fees are $zzz per hour (notice there are THREE Xs here), portal-to-portal and you expect a retainer of $zzz. Its higly possible that, at that point, your testimony will become much less important. If the issuing attorney still will not pay, then, when you are on the stand (but after you are sworn) politely indicate to the judge that the issuing attorney has refused to compensate you for your time, and ask the court for guidance. Then do whatever the court says.

As to confidentiality, notice the subpoena said bring the file, not photocopy it and give it to the court clerk as Exhibit #1. The judge will not ask to see the file. If anybody asks to see it, tell them it is confidential to your client and cite your state license law and/or administrative code so indicating. However, if the judge orders you to produce the file, you should comply. Then make sure you get a copy of the trial transcript as evidence that you invoked confidentiality and the judge ordered you to turn it over.

Remember, this is but a short thread in the tapestry of your life. Its not all that important.

Good Luck!

Tim Andersen

 

[Mike Garrett RAA]

Call the attorney and tell hime you would be happy to appear in court in accordance with what was stated in the certification. My fee is $400 per day, minimum one day. My preparation is 3 hours @ $75 an hour, all payable in advance... when can I expect your check?

They cannot get you to go to court for $9.....period![/b]

 

[Pat Butler]

I do quite a bit of testimony and it's been a long time since an attorney has tried to subpeona me without negiating a fee agreeement prior to the subpeona. There is an extensive amount of damage that you could do to this attorney's case should you so desire, and the attorney would have to be a complete idiot to want you to show up with an adviserial attitude.

First of all, I doubt if the purpose of your original report was for litigation. How can you answer questions regarding a report for which the purpose wasn't intended? Also, USPAP allows for differing levels of reliability (check USPAP, those exact words are in there!) and you simply have to state that this report was done with the lowest level of reliability. Just watch the attorney's jaw drop.

And it's very customary to reinspect the subject property prior to giving testimony to refresh your memory. You can stand behind the findings of your appraisal without having to remember anything about the subject property. "Your honor, I know that I developed and reported this appraisal in compliance with USPAP because that's what I always do, but I simply can't remember much about this property...."

I could go on and on, but just remember that you could completely blow this guy's case out of the water with your testimony and you need to tell him that up front. Also tell him that you will call your client (his client too?) and let him know that his attorney is setting him up for failure because he doesn't want to pay you. Now the attorney has professional liability concerns to deal with because his client has been advised in advance that your testimony might be damaging to his case. Depending on confidentiality issues, you might possibly be able to work something out with the opposing side's attorney too.

I practice in a major metropolitan area and must say that the local attorneys are very respectful of my time and know better than to subpeona a professional to avoid paying fees. The attorney should be extremely concerned about what sort of conduct he gets from you for $9. Give him exactly what he pays for!