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Appraisal Reports for Litigation 3 - Deposition

by Administrator on Feb 28, 2009 Litigation / Expert 1478 Views

Appraisers often do not know what they are getting themselves into when they accept a litigation assignment.  It usually begins with an attorney asking you about your qualifications, then he or she will decide if you meet their criteria.  Attorneys are listening to you carefully when they are shopping around, if almost any appraiser will work they may focus on your fee.  If no one wants the job, they just want to hear that you will accept the assignment.  Most appraisers think it only has to do with only with their education, experience or designation, but while important those things are not always the focus of the search.

Once you have been selected, prepared your report and your work file, the opposing attorney will review your work.  Often the opposing attorney will have their own expert, if they hired one, look at your report to discover its weaknesses.  Appraisers who "informally review" the appraisal prepared for the opposition puts themselves in a dangerous position.  If you didn't review the appraisal, then what can you say about it?  If you did review it, which may take a great deal of time and effort on your part, then you may come across to the Judge or Jury as someone not objective but biased.  You leave the position of defending your own work, and you become an attack dog.

Attorneys often hire a second appraiser as a rebuttal witness.  The second appraiser can become critical of the opposing appraiser's work without worrying about appearing biased.  

Since your deposition as an expert witness will have a lot to do with what you did for the attorney that hired you, I wanted to deal with the "objective appraiser" versus "review appraiser" distinction first.  It is easier to defend your position in a deposition if you don't have to admit that you not only formed a value opinion but you also reviewed the opposing appraiser's work and that you will testify why you think he is wrong.

What happens in a deposition often has a lot to do with the type of case that you are involved in.  In a condemnation case the land owner's attorney is usually paid based on a percentage of their judgment above an established lower limit, and often they spend little time trying to discredit an appraiser in a deposition.  Attorneys for the government know they usually have an uphill battle, because the cases deal only with the value of the property taken, nothing else.  Both sides want to nail down how the appraisers formed their opinions and the usually focus on the appraisal process.  The "modus operandi" is to attack your credibility, methodology or your conclusions at trial.

In civil cases attorney's for the Plaintiff are also paid based on the size of the judgment, and often only if they win the case.  Attorney's for Defendants, often insurance companies, are paid hourly.  If you find yourself in a deposition that involves attorneys being paid hourly by an insurance company you may find that you will be subjected to hours and hours of "what if" questions.  Many of them are simpley "beyond the scope" of your appraisal report, and you are better off not offering speculative responses when you don't know the answers.

Depositions reveal just how strong an appraiser is as a potential expert witness.  How well the appraiser presents his arguments will let the opposing attorney know what to expect at trial and give them a sense for how well the appraiser will be received by a jury.  When an appraiser demonstrates that they are competent regarding the appraisal process and regarding the appraisal of the specific property, attorneys often just want to establish a record in a deposition.  In fact, many will admit that you "don't win the case in the deposition."  It may, however, be the place where they lay the groundwork for discrediting you.

The best advice for those of you headed for a deposition is the "be prepared" motto.  If you have a good work file, go over it and your report before the day of the deposition to refresh your memory about what you did.  If you wanted to look up some final details that you left unanswered, check them out.  Resolve the issues in your mind before hand and you will have more confidence when you are armed with the facts.

2012 Update:  Don't forget to consider the fact that you are going to have to answer those hypothetical questions.  If you begin each answer with "in response to your hypothetical question" you should be fine, you have qualified your response with the fact that you are responding to a make believe question. 

For more appraisal information contact Glenn Rigdon, MA,MRICS, ASA a Las Vegas / Henderson Nevada appraiser via email or via his business website Horizon Village Appraisal (http://www.horizonvillageappraisal.com), or you can also click on “Contact Us” on the home page of this website.

Article source: http://www.appraisalarticles.com/Litigation-Expert-Witness/468-Appraisal-Reports-for-Litigation-3-Deposition.html

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