Unimpeachable Real Estate Experts

Posted by William Lightner, Esq. on Monday, September 26, 2011

Key Questions Asked of Opposing Expert Witnesses by an Expert Litigator

Inevitably, some real estate disputes – usually the most complicated ones – will end up in court, where aggrieved contestants expect justice to protect them. But without expertise in real estate, how can judges and juries be expected to make informed judgments? Victory often turns on a battle between expert witnesses; and cross-examinations are where defensive moves are made.

Opine Experts’ Bill Lightner interviewed veteran litigator Chip Rice, a partner at the San Francisco firm Shartsis Friese LLP, regarding the key questions he asks opposing experts. A master strategist, Mr. Rice tells us just how much preparation is required to prevail as the champion of his clients’ positions.

Question (Opine’s Bill Lightner):

As real estate experts, our goal under cross-examination is to impress a jury by deflecting attorneys’ challenges to our opinions with the patience of a good teacher dealing with an obstreperous student. What counter-measures do you take in this battle for “hearts and minds?”

Answer (Attorney Chip Rice):

My objective is to show the jury that even the best teacher can rely on faulty assumptions or an unconscious one-sided view of the facts. I cross-examine opposing experts in a calm, clear and thorough way, revealing those human errors. Of course, that’s easier said than done. It can be tough to show that an experienced expert is a mere mortal. They have good instincts when it comes to giving ground or fighting back. So, I never wing it. It’s all about preparation.

Question (Opine’s Bill Lightner):

How do you prepare for cross-examination?

Answer (Attorney Chip Rice):

My cross-examination starts with a thorough deposition that hopefully exposes the weaknesses of the expert's opinions.

I start preparing with a little general reading if I need introduction to the field. I then read whatever the opposing expert has written that relates to the opinion. I search the Internet and elsewhere for other relevant statements or background data. Think of this as “profiling" witnesses in order to find out as much as possible about the way they think. The knowledge gained can be crucial when it comes to engaging the witness and obtaining admissions or other testimony helpful to my case.

I also get a tutorial from my own experts. I am never afraid to ask dumb questions. By the way, I find working with my own experts like this helps them when they eventually need to explain their opinions to judge and jury.

Question (Opine’s Bill Lightner):

Are there deposition questions an expert should anticipate no matter what?

Answer (Attorney Chip Rice):

Yes. Here are some I always ask during depositions, even if I can predict the answers.

Does the expert's written report contain all of the opinions they plan to give at trial?

It is supposed to do so in both federal and California practice, but one never knows how flexible the trial judge will be about letting the expert give new opinions on direct examination. At the very least, I want to have a nice sound bite from the deposition to use on cross-examination in the event an expert tries to sandbag me. If the witness waffles on this question at the deposition, I state on the record that I object to the witness giving any opinions at trial that are not in the written report.

Does the expert plan to do any additional work before trial?

If the answer is no, I feel somewhat protected if they end up doing so. If the answer is yes, I find out what and why and object to the witness testifying at trial about any work that is not in the report.

Has the expert done all the work considered necessary to reach the report's conclusions?

I ask this one early in the deposition, before exposing any shortcomings in that work. For example, suppose an accounting expert did not look at a key financial document before reaching his or her conclusions and I plan to establish that later in the deposition. I work at getting the expert to testify that in their professional judgment they know enough to give a solid opinion before you show that they didn't consider everything they should have. This provides me additional protection if the expert later modifies that opinion in light of what I showed them at the deposition.

What has the expert discussed with counsel?

In state court, once an expert is designated to testify, his communications with the attorneys who retained him are no longer protected from discovery. So, I find out everything I can about what the witness was asked to do. In particular, any discussions about the scope of the opinion will show where the opposing party thinks there is a weakness.

Were any limitations placed on the expert's work?

Most experts are too cagey to remember any. So, as is the case with most important deposition questions, I ask this in several different ways: Did the expert decide not to do anything that she had considered? Did counsel ask the expert not to do anything? Did the expert review any information or material that seemed inconsistent or difficult to reconcile with any of her conclusions?

How much time has the expert spent on this matter?

I want the expert to break this down so that I know how much time was spent in meetings with counsel, doing research, writing, etc.

How much is the expert being paid?

I ask for the hourly and/or daily rate and the amount billed to date. I ask if the expert is receiving any other compensation or benefit from testifying and if their compensation will be affected by the outcome. As you know, it is not supposed to be.

How was the expert's report prepared?

Did the expert have any help from the parties, counsel or their own staff? What did the expert handle personally? Does the expert still have any drafts or notes? Did they review any information or material that is not mentioned in the report? Did they talk to anyone else about the report? Are any of their conclusions based on any conversations with anyone else?

Is the expert's resume complete and accurate?

I don’t waste time on particular degrees or jobs. Instead, I ask more general questions about what parts of their experience — whether educational, occupational or other — support the opinions given and why. Has the expert previously served as an expert witness? I want to find out whether the expert has ever been found to be qualified to testify as an expert in any previous proceeding and, if so, in what area. I ask if the expert has ever been deposed or given a declaration and whether I can have a copy.

Question (Opine’s Bill Lightner):

Do you save your best impeachment questions for trial?

Answer (Attorney Chip Rice):

The conventional wisdom about deposing expert witnesses (and even percipient witnesses) used to be that one should save the "good stuff" that will impeach their testimony. Otherwise, the reasoning went, the witness would be alerted to the problem and have a chance to come up with a better answer at the trial. I don't agree with this deferred gratification approach. Because a lot of things can happen between the deposition and trial, including summary judgment and settlement negotiations, I hate to lose the opportunity to influence those events with admissions or other deposition testimony from an opposing expert.

So if an expert has gone out on a limb that might be able to be cut off, I prefer to bring my saw to the deposition instead of keeping it for the trial. For example, if an expert has reached a conclusion without reading a key document that is obviously relevant, I try to establish that at the deposition. The other side can then try to clean up the mistake but they can't hide the fact that a mistake was made. Also, every effort to correct deposition testimony at trial will erode the expert's overall credibility in front of the judge and jury.

Question (Opine’s Bill Lightner):

Any last thoughts you can share with experts and attorneys who are about to go into this battle of wits?

Answer (Attorney Chip Rice):

Both attorney and expert need to be completely prepared to attack and defend the expert’s opinion. If the expert wants to be the teacher, they’d better be prepared to face a well-prepared student who will challenge their authority with a respectful but relentless Socratic dialogue about the bases for their opinions. This student will have done his homework and have a pretty good sense of what the expert will either have to admit or look bad denying. Having prepared a wish list of the admissions that I think I can get, I will shine a bright light on the critical weaknesses of the expert's opinion so that the judge or jury will later find it easier to understand why they should reject that opinion.


Mr. Rice is a partner at Shartsis Friese LLP, where he specializes in securities and other complex litigation. He can be reached at crice@sflaw.com.


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