The dance between Lawyers and Experts; it’s filled with complex steps and mixed rhythms. The Texas Two Step has nuthin on the Lawyer Lindy Hop.

I guess in this arena I suffer from Multiple Personality Disorder. I was (in a past life) a Lawyer, and now I am an ‘Expert Witness.’ (What a loaded term THAT is!) I think I understand the perspectives of both sides, and offer the following observations in an effort to make the Tangled Tango a Foxtrot with Finesse.

The very first step in the dance is determining the qualification(s) of the ‘Expert.’

In real estate cases, Lawyers often use other lawyers as the RE Expert. Just as often, the Lawyers use RE brokers. Both lawyers and brokers can qualify as an “Expert” in a real estate case. So, which is better?

Well, that depends. (A phrase well known to, and hated by, every Lawyer’s client.)
Subject Matter Expertise (SME) is always, or should always be, the key.

But, with the kind of issues in RE cases that can come up, SME in one area, say residential RE broker standards of care, can be very different than a regulatory discipline matter; or a rural farm sale vs a downtown commercial office building transaction. Even the difference between a suburban office vs an urban office transaction can elicit different standards of care testimony. The right SME is important. You wouldn’t want a podiatrist to do brain surgery.

While an attorney as expert may have advantages (knowing what a trial is all about, the ability to withstand a vigorous cross-examination, the knowledge of the subtleties of a case or opinion), they often fall afoul of the “Yes, but have you ever sold real estate as a broker?” question. How can one who has never done, credibly talk about what those who are doing should do? It’s like asking the Pope about child rearing techniques. You don’t play the game, you shouldn’t make the rules.

Brokers, on the other hand, while playing the game, also (generally) take short cuts themselves while doing so. They might opine that the ‘standard’ in the industry is more ‘real life’ than ‘perfect compliance with the laws and regulations’ and give far more leeway than they should. Yikes! Or, they can be super critical and feel it is their job to ‘cull the heard’ of the bad brokers giving everyone else a bad name.

Some ‘Experts’ will claim SME in everything – because they think that’s what the attorney is looking for (or because they want to broaden their potential case assignments). Be afraid.

Yet, let’s presume all things are equal between SME considerations – what then?

Most experts will tell you: Price and Credibility are the things lawyers are next most focused on.
And, they’d be right.

Here, a lot depends upon which side is doing the picking (and how much the case is worth).

Let’s pretend:

You are a Plaintiff’s Lawyer, and the case is valued at $500,000. You want the best Expert you can get, and afford. Buuut, if the Expert is going to cost you $20,000, you have to think real hard about the cost/benefit. Maybe the next Expert on your call list will be cheaper, even if not as good as the first one. Sometimes, “good enough”“ is all you can afford.

On the other hand, you are Defense Counsel on a $7,000,000 case, and have an insurance company paying the bills. While the carrier will grouse about an Expert charging $600 or even $1,000 an hour, they’ll pay it. (If the Lawyer can make the case that this Expert is “the one” to use, that is.) And that $20,000 isn’t a deal breaker anymore. (Oh, it will still get looked at. Trust me.)

But cost is only part of that equation.
The Lawyer has to take into consideration how the Expert will perform the Deposition Disco.

The ability to read, comprehend, analyze then discuss at deposition – and again at trial – is a huge consideration. Withering under cross examination; being unprepared to cite (repeatedly) to the record of discovery documents, depo testimony, in-person interviews with the parties or significant actors; not having a body of related work as reference points – all are cracks in the dance floor that an Expert can easily trip over.

Credibility as a witness is – in essence – what the Lawyer is looking for at this stage. And the Expert either has it, or doesn’t. Not having it, is ‘a bad thing.’

And speaking of ‘credibility’ let’s not forget the distinction between being an active practitioner, or a professional witness.

“Those who can not do, teach.” Remember that? So, if your Expert isn’t actively engaged in the real estate industry, can s/he really qualify as a SME in the eyes of the jury (and those are the only eyes that really matter, aren’t they?)?

Yes, s/he can. How they do so is an example of finesse, and honesty. Good Experts who are retired from the professions (broker or attorney) or only part-time practitioners can do so. Full time practitioners, frankly, rarely have time needed to commit to being a well-qualified Expert. After all, most expert witness assignments come in the 24 – 48 hours before designation of expert deadlines show up on the Lawyer’s calendar. It’s not many who can devote the ‘on-the-spot’ time needed for an Expert assignment.

One other trait that a good Expert will have is – saying what the ‘other side’ did RIGHT. Yup, you read that right.

An Expert will lose credibility if the broker is described as either a paragon of virtue who did everything right, or complete bumbling buffoon who did everything wrong. Life – just isn’t like that. A broker can do most things right, and still mess up on the critical thing that caused the injury. (This usually happens when the broker is trying to ‘help’ – as a truism in life is that No Good Deed Goes Unpunished.) Good intentions are not a Get Out of Jail Card. If you’ve injured a client – you pay the price. But, that client still has to prove that injury, and those damages.

Which is where a Really Good Expert can be a godsend to a Lawyer (for Plaintiff or Defendant).

Often that second set of eyes looking over all the materials in a case can be invaluable. (Which is what a Good Expert will insist on doing by the way – and why they cost so darn much; because by the time an Expert is hired, there is a LOT of paperwork to review.) A consulting Expert will ask: “Have you thought about this?” “Did you ask… (or if you’ve hired the expert early enough: “Be sure to ask…) about that?” If the Expert can act as a consultant to the Lawyer in developing the materials needed to render a complete and accurate opinion, it can be a match made in heaven.

One worthy of Dancing with the Stars.



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