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
| Question | What it is doing |
|---|---|
| What did counsel tell you to assume | Separating instruction from independent determination |
| What materials did you not review | Finding the gap, then characterising it as selective |
| How did you derive that adjustment | Testing whether the number has a basis or an intuition behind it |
| Have you ever reached the opposite conclusion | Prior testimony is always found and always produced |
| Are you qualified to say that | Building the boundary for an exclusion motion |
| Would you agree that… | Securing concessions that will be read back at trial |
| What would change your opinion | Mapping 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.