Posted by William Lightner, Esq. on Thursday, February 7, 2013
Expert Witnesses Must be Prepared to Express their Methodology
Many attorneys don’t want their Expert Witnesses to produce written reports. While this practice may protect them from unwanted discovery in jurisdictions (that haven’t adopted Federal Rule 26), and may reduce expert fees, it puts their experts in a tough spot at deposition.
Opposing attorneys always grill experts about their opinions. An expert unarmed with helpful reference documents will have to rely on memory. Memories can fail under a blistering attack, allowing the opposing lawyer to make the expert look biased, undisciplined and confused. A bad deposition can be devastating – at many levels.
To avoid this peril we counsel Opine’s real estate experts to request the permission of their retaining counsel to prepare and take to the deposition a statement setting forth their opinions and the methodology that led to them, such as site visits, research, hypothesis testing, applicable standards, interviews, etc.
This document should be written to stand on its own, setting forth each opinion and the methodology used to arrive at it. Its verbiage should demonstrate the expert’s objectivity and thoroughness, including a discussion any contradictory theories or explanations and why they were rejected. The attorney should be asked if the expert can also bring notes, timelines highlighted records, and other aids. Not only does this practice better prepare the witness for testimony, the mere presentation of the witness’s methodology/opinion statement can help steer the agenda for the deposition. At the very least, it should ensure that the expert’s opinions and supporting analyses are fully expressed on the record.
Mr. Lightner is an attorney and real estate entrepreneur with wide-ranging experience. He consults on fair business practices involving the treatment of real estate investors by their investment sponsors. He manages Opine, recruits experts and tracks down experts in the most arcane aspects of California real estate.
Opine's unprecedented collection of California real estate authorities is available to journalists as well as its clientele of attorneys, insurance companies, real estate agents, investors, developers and property managers.