Testifying in Court/ Do's and Don'ts

[PL1957]

Now THAT was funny!

Uh - back to the thread. Barry, yes - take your file. Also, if you don't understand those double ended questions then ask for a clarification. Also answer the questions towards the judge and not the attorney. S/He is the ruling authority.

Talk to the attorney who hired you (notice I didn't say YOUR attorney since you really don't have one) before you bring ANYTHING with you, even your report. Anything you bring to court can be fair game for the opposing attorney. The last thing you want to be subject to while on the stand is someone rummaging through your files, asking irrelavent questions.

Unless instructed otherwise, the only thing I bring to court with me is a calculator I'm familiar with.

 

[hastalavista]

Mr. DeSaix,

Thank you for your response! It raised one interesting question to me. Your number "4" to not be afraid to refer to notes. .. Does this mean to take or not take the work file? .. Do you use a separate set of notes created only for testimony and not a part of the work file?

Barry Dayton

You should talk to your attorney if they have a problem, but;
1. If you are being brought in as an expert (which, I assumed, but is not stated in your post), then yes, I would have my folder and work-notes with me. Just make sure everything you bring was available during discovery (which is why you should talk to your attorney).
Just as cops refer to their notes on the stand, so do experts refer to their notes and exhibits.
2. If you are part of the action (a litigant rather than an expert), then you should probably talk to your attorney first.

I was in Bankruptcy Court for a hearing; the opposing appraiser had a big brief case and grabbed what he needed from it to refer to items he was being questioned on. I organized my stuff into a notebook for easier access.

Our side won (I doubt if it had anything to do with my organizational skills on the stand, but it did have much to do with my appraisal). By the way, the clothes I wore at that time were very uncomfortable, and it showed. In my case, it was a hearing before a judge to determine which appraisal to accept for the BK valuation (I worked for the creditors). Judges, as professionals, can probably see through the nervousness or uncomfortable clothes; jurors may not be able to!

 

[T.E. Faravelli]

The basic question for counsel may well be "never ask a question you don't already know the answer to." That aside, I wouldn't fret much about what attorneys may or may not ask. Rather, the focus is on your true expertise as best exemplified by your credentials, objectivity, personality, ability as a witness, temperament and willingness to work with counsel.

In an oversimplification an expert witness is a teacher - an educator; explaining or demystifying complex or convoluted concepts, ideas and theories to the layperson(s). In closing, I submit that you impart to your lexicon the following noun and adjective - primacy and recency. The compendium cornerstone of any testifying expert.

 

[ROBERT JONES]

While I have never been called as an expert or had to defend a work file I took a course offered by the NAIFA that is a must for any appraiser. Very few of these courses or seminars leave you with anything but a bad taste in your mouth.

Litigation Appraising taught by Al Cerrone changed the way I do appraisals, the cost approach, and my overall thinking. I am not sure the course is the stand alon best course ever, but Al Cerrone made it. While he is a NJ based appraiser, he may teach this course abroad, look for it. He is also a terrific speaker. Try to catch anything he is involved in, he is vey enlightening.

Bob Jones

 

[Tony Lehn]

The only thing I can add is to address the judge with your answers. Speak to the judge when answering the questions and address him in doing so.

 

[Jan Roseberry]

I always take my complete work file and often have to print additional pages from the internet of information used in report.

Do not volunteer information, answer only what is asked and don't elaborate.

Good advise in talking to the judge.

I've been there quite a few times and have come to realize the only thing I need to worry about is my appraisal. Advocacy only for your value/appraisal and it becomes a nice profit center.

 

[Elliott]

1. Switch your watch to the opposite wrist so it feels unusual....
your not in a usual place. Be alert.

2. Listen carefully to the questions and answer them truthfully.

3. Never, ever, never tell a joke or think your humorus.

4. Enjoy direct...it will soon end. Pretend cross is from
your ex-wife and be a little difficult to the cross attorney.
At least don't let him enjoy his job. Make him earn his money.

5. I've gotten in the habit of taking the stand without any
report, any brief case. Someone will supply you with a report.
I think judges and jurys like an expert who is up there telling
what he knows....not what's in his briefcase.

6. Have fun. Smile.

7. Try not to get thrown off the stand by the judge.

elliott

 

[Fred]

I didn't see anyone ask if this is in front of a judge or jury. That makes a difference.

Have to agree with PL. I am used to them handing me exhibits.

Have to disagree with Elliot. I love cross.

 

[David S. Roberson]

All good advice. I've done quite a bit of litigation work, and I might add a couple things:

Don't bring the work file. This is not a hearing in front of an Appraisal Commission. Introducing items in the work file will only complicate matters.

Don't look the opposing counsel in the eyes when they're asking you questions. Look at his or her mouth. This will detach you from any emotional responses, and allow you to focus on the questions asked only. It really works in contentious situations.

When you respond to a question, speak slowly and calmly. Imagine you are explaining something to a child. It will allow you to respond to repetitive, frustrating questions more calmly.

 

[xm39hnu]

In a recent diminution of value action, my wife wanted to take The Appraisal of Real Estate, 12th Ed., with her to court "for reference." I asked her, "Do you want to be cross-examined on that entire book?" Well, she didn't of course. Left it home. Talk to the attorney first. See if there's anything s/he specifically wants you to bring.

Taking the work file may be a good idea if your report is based on data and analyses not included in the report, but make sure that it doesn't contain anything which wasn't provided to opposing counsel during discovery. Go over it with your client-attorney. If, however, your report is self-contained with respect to data and analyses, leave it home. Take with you only the information you'll need for defense of your opinion.

"I don't know" is a direct and responsive answer. Use it.

"Yes, but..." and "No, but..." answers should never be used. Instead use "While it may be true that (whatever he said), (place the "but" part here)." You'll get cut off right after the "but.." otherwise. Think before you answer. Example:
Q: "Mr. Appraiser, the report you prepared does not contain a cost approach. Isn't it true that the cost approach is one of the three recognized approaches to value?"
A: "Yes, that's true, but..."
Q: Thankyouverymuch, next question.

Better:
Q: Same
A: While the cost approach may provide a good indication of value for newer properties, and is absolutely required for special or unique properties, it loses strength when applied to properties as old as the subject.

If you've written articles for trade publications, try to review as many as you can before taking the stand to avoid making statements which conflict with what you have written.

If it's a jury trial, wear a jacket and tie. Wear a shirt with a comfortable collar. If it's a bench trial, it still may be a good idea, but ask your attorney about it. Different judges have different preferences. Get a haircut. Shine your shoes. Look professional.

Avoid attempts at humor. Stick to facts and your expert opinion based on them. In a BK hearing, I was asked "When did you buy the truck?" I answered, "On Black Tuesday, November 3, 1992--the day Bill Clinton got elected." The court reporter and clerk cracked up. Opposing counsel had to make a visible effort not to laugh out loud. The Judge was a Democrat. Bad choice. (For both of us.)