Working with experts
The instruction decides what you get back
A vague instruction produces a report that answers a slightly different question from the one in dispute. It is the most common and most expensive error in expert work, and it is entirely avoidable.
Specificity
Vague against precise
| Vague instruction | What it should say |
|---|---|
| Value the property | State fair market value of the whole property before the taking and of the remainder after, as of the statutory valuation date, under this state’s definition |
| Look at access | Determine whether a WB 50 delivery vehicle can enter, manoeuvre and exit the remainder using the proposed access, with swept path analysis |
| Is development possible | Assess the probability of rezoning to residential as of the valuation date, with reference to the plan designation and approvals granted to comparable parcels since 2020 |
| Review their report | Conduct an appraisal review under Standard 3, addressing whether the remainder was separately analysed and whether the severance conclusion is supported |
| What would it cost to fix | Prepare an elemental estimate for reinstating the access to the specification shown on sheet 14, with assumptions and rate sources stated |
Assumptions
State them, and say where they came from
Every expert report rests on assumptions. The question on cross examination is never whether assumptions were made but who made them and on what basis. An assumption supplied by counsel, identified as such, is defensible. The same assumption adopted silently by the expert is an opinion they are not qualified to give.
So the instruction should set out what the expert may assume, where it comes from, and what they must determine for themselves. If the appraiser is to assume the remainder remains developable, say so and name the planner whose conclusion supports it.
Instruct in writing, and expect it to be produced. In most jurisdictions instructions to a testifying expert are discoverable. Write them on that basis, which also tends to produce clearer instructions.
Avoid
Four instructions that damage a case
Telling the expert what conclusion you want
It is improper, it destroys the opinion’s weight, and under professional standards it may prevent the expert from accepting the engagement at all.
Withholding unhelpful material
It will emerge, and it will emerge in deposition rather than in the report, where it is worth far more to the other side.
Leaving the question open
An expert asked to look into it will produce something, and it may not be the thing in dispute.
Asking for a figure before the work
A number given early is a number the expert must either defend or abandon, and both are bad.
Questions about instruction
Can I discuss the case with my expert before instructing them
Yes, and it is sensible, particularly in a consulting capacity. The written instruction then reflects a question you have both understood.
What if the expert comes back with an unhelpful answer
That is the system working. An expert who only produces helpful answers is not an expert, and the other side will demonstrate it. An unhelpful answer early is cheaper than one at trial.
Should counsel draft the report
No. Practice varies on how much comment on a draft is proper, and the opinion must be the expert’s. Heavy involvement in drafting is a standard line of cross examination.
Can I instruct an expert jointly with the other side
Occasionally, usually on a narrow technical issue where both sides want it settled. Uncommon in condemnation and worth considering where the disputed issue is purely factual.
The expert decides the number more often than the argument does
In condemnation the facts in dispute are technical. Who presents them, and how well, is usually what the case turns on.