Working with experts

Where most expert evidence is actually tested

Far more condemnation cases are decided by what happens in a deposition than by what happens at trial, because most of them settle immediately afterwards.

Objectives

What opposing counsel is trying to do

Pin the opinion

Fix exactly what is being said, so it cannot expand at trial.

Find the assumptions

Separate what the expert determined from what they were told, and then test whether they were qualified to determine it.

Test the data

Which sales were verified and how, which were rejected and why, what was not looked at.

Build an exclusion motion

Establish that the method is not standard or the basis is not reliable.

Create inconsistency

Between the report and the testimony, or between this testimony and a previous case.

Assess the witness

Whether this person will be credible to a jury, which drives the settlement decision as much as the substance.

Preparation

What actually prepares an expert

Not rehearsing answers. What prepares an expert is reconstructing the analysis until every step can be explained without reference to the report, and then being questioned hard by someone on their own side.

The specific things that go wrong are predictable. An expert who cannot say how an adjustment was derived. One who concedes a point and then tries to retract it. One who answers a question that was not asked, opening a line of enquiry that would not otherwise have occurred. One who speculates outside their field because the question invited it.

The hardest discipline is answering only the question asked. Experts are helpful people and helpfulness in deposition is expensive. The useful habit is to answer, stop, and wait.

Patterns

Questions that recur in condemnation depositions

QuestionWhat it is doing
What did counsel tell you to assumeSeparating instruction from independent determination
What materials did you not reviewFinding the gap, then characterising it as selective
How did you derive that adjustmentTesting whether the number has a basis or an intuition behind it
Have you ever reached the opposite conclusionPrior testimony is always found and always produced
Are you qualified to say thatBuilding the boundary for an exclusion motion
Would you agree that…Securing concessions that will be read back at trial
What would change your opinionMapping the sensitivity of the conclusion

Questions about depositions

Does the owner attend the expert’s deposition

Usually permitted and usually unnecessary. Counsel attends. Owners are deposed separately where relevant.

How long does an expert deposition take

Commonly half a day to a full day for an appraiser. Supporting experts are often shorter.

Can the expert bring the file

They will generally be required to, and it will be examined. Another reason to build it accordingly.

What happens afterwards

Very often, settlement discussions. Each side has now seen how the other’s evidence performs under pressure, which is the information both were missing.

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.

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