Working with experts
Testimony, and what a fact finder is actually weighing
Commissioners and juries are not valuation specialists. They decide between two experts largely on whether the reasoning made sense and whether the witness seemed to be explaining rather than advocating.
Direct
How an opinion is built in front of a fact finder
Qualification
Credentials, experience and prior testimony, ending with tender of the witness in the relevant field. Specific experience in condemnation and in this property type carries more weight than length of career.
The assignment
What the expert was asked to determine, and the standard applied. Framing this clearly makes everything after it easier to follow.
The property and the taking
What was there before, what is being acquired, what remains. This is where exhibits do most of their work.
Method
Why this approach was chosen and what it required. Jurors forgive technicality if the reason for it is clear.
The analysis
The comparables, the adjustments, the engineering, shown rather than asserted.
The conclusion
The numbers, and what they consist of, with severance damages identified separately.
Addressing the other side
Where the opposing opinion departs and why the expert disagrees, which is more persuasive before cross than after it.
Cross
The standard lines, and what defeats them
You were paid for this opinion
Everyone is. The defence is a fee that is not contingent and an opinion the expert has held consistently.
You assumed what counsel told you
Fatal if hidden, routine if disclosed. Assumptions identified in the report with their source are an answer rather than a concession.
You are not qualified to say that
Which is why supporting experts exist. An expert who stays inside their field cannot be walked outside it.
You ignored this sale
Addressed if the report lists everything considered and explains the rejections. Damaging if the sale appears for the first time at the hearing.
Your adjustments are larger than the differences
A real weakness in many sales comparison analyses, and the answer is a derivation rather than a defence of experience.
You said the opposite in another case
Always found. The answer is that the facts differed, and it only works if that is true and the expert can say how.
What persuades
Conceding the right things
The most credible expert testimony concedes what is genuinely conceded. A witness who agrees that a comparable is imperfect, that an estimate carries a range, that reasonable appraisers could differ on one adjustment, buys credibility for the points they do not concede.
The witness who concedes nothing is the one juries disbelieve. Nothing in a valuation is certain, and an expert who presents everything as certain is telling the fact finder that they are advocating rather than analysing.
Questions about testimony
Does the owner testify
Often yes. In most jurisdictions an owner may give an opinion of the value of their own property, and jurors generally want to hear from them. It carries limited evidential weight and considerable human weight.
Can the expert use exhibits while testifying
Yes, and they should. A cross section, an overlay or a swept path drawing communicates what paragraphs cannot.
What if the two appraisals are far apart
Common, and the fact finder usually prefers one rather than splitting. Which one usually depends on which reasoning held up.
Is a commission hearing different from a jury trial
Commissioners are often more familiar with property matters, so the evidence can be more technical. Juries need more explanation and respond more to exhibits.
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.