After 50 years of trying condemnation cases, I am consistently surprised at the occasional instance where an expert just does not know how to properly testify in court. On paper, an expert may be incredibly impressive. But is that enough for one to prevail in a case focused on valuation?

Providing expert testimony certainly requires expert knowledge of the subject, but it also requires knowledge of the fundamental rules that should be observed when on the witness stand. The rules will vary from jurisdiction to jurisdiction. An expert must be familiar with what is expected when called as a witness in a particular court. An attorney should carefully explain the issues and what needs to be proven so that there are no surprises.

The Expert

Before accepting any assignment, an expert must be qualified to make an appraisal for the specific case at hand. Does the expert have the necessary skill for the appraisal problem? Can the appraiser complete the report within the time allotted? And, can the appraiser provide testimony at trial? Is there a conflict of interest?

An expert must have a clear understanding of the assignment. It is extremely important that the expert meet with the attorney who is retaining him or her as an expert witness so that the witness has a clear understanding of the case.

An expert must insist that there be a clear written agreement about the payment for services. If payment is to be made in stages, the stages should be fixed and identified. The agreement should spell out fees for preparing an appraisal, or a report, and the additional sums for conferences and testimony. There should be a clear understanding to avoid subsequent problems. If the fee for court testimony is a flat, per diem amount, it should be clear that the expert will be paid for a full day even if testimony lasts only a half day. If overdue sums will require an interest payment on balances, this too should be set forth specifically in the agreement. The expert must bear in mind that the attorney will not be responsible for the fees to be earned. The attorney acts as agent for a disclosed principal unless otherwise agreed.

If the appraiser is writing an appraisal for court testimony, make sure the appraisal is in compliance with local rules. Does the report require photographs of comparable sales? Does it require deed recording information and the names of the parties? Is the appraiser required to provide detailed information regarding comparable rentals

Cross-Examination: Not Easy, or Pleasant

The expert is going to be cross-examined. It will not be an easy or pleasant experience. An expert must personally verify the information to be provided. Never rely on an assistant. An expert should personally inspect and photograph every comparable. Although commercial real estate reporting services are helpful, an expert should not rely on a service without verification. If possible, the expert should confirm the details of the transaction directly with a party to the transaction. The witness should be prepared to discuss the area of the sale or lease. For example, personal investigation of important valuation criteria should enable the expert to know exactly what the zoning is. Attention to details is critical. What school district is the property in? Where is the property in relation to the train station? The expert should have copies of the deeds in his file.

Some jurisdictions require a curriculum vitae for an expert. The expert should carefully set forth his qualifications, including education, professional designations, licenses, and memberships in professional organizations. There should be an explanation of work experience in various employment periods. If the expert teaches, that is something a judge and jury will want to know. The same is true if the witness is a volunteer for civic organizations or charities. Finally, the curriculum vitae should list clients and cases for which the expert has performed services (with their permission). It also should list every court that has accepted the witness as an expert witness qualified to give an opinion.

Courtroom Protocol

Look like an expert. The expert should come to court early. A suit is the appropriate dress. The witness must look like a professional. Turn your cell phone off.

The expert must understand the format of a trial. The expert must know the fundamentals of a trial. If there is an objection during examination (direct or cross), the witness must wait for the court to rule. If the objection is sustained, the witness may not answer the question. If it is overruled, it may be answered. If the attorneys make a legal argument, the appraiser should understand he may be excused and asked to leave the courtroom to prevent the answer from being suggested.

You should understand that there can be no communication between counsel and an expert during cross-examination. An appraiser should avoid looking at counsel when being crossed. It's like asking for help and shows weakness.

It is very important that the expert knows that respect for the court is mandatory. When a judge enters the courtroom, the witness should rise. The judge's and court staff's directions should be followed. The expert should understand that if the judge asks a question while the witness is giving his testimony, it should be answered directly and fully. The appraiser must address the court as "Your Honor." A witness should never talk over a judge or avoid making a direct response to a question posed by the court. Credibility is vital and can be damaged by failure to show respect and candor.

The Cross-Examining Attorney

No matter how difficult, the expert must show also respect for the cross-examining attorney. The witness must be polite. Some experts have short fuses. This is dangerous. The witness must answer questions with simple language and avoid jargon. A witness should answer only the question asked. Incredibly, some experts want to help their cross-examiners. Do not assist a cross-examiner who is having difficulty presenting a question. Make sure your witness never makes negative or self-deprecating comments about his or her work product, but if an obvious error is present, it should be admitted to and the witness should move on. He should answer the question and no more. A witness should not express frustration if limited to a "yes" or "no" answer. Hopefully, counsel will ask the expert to expand on the answer on re-direct. As the Honorable John P. Leo, the very knowledgeable Suffolk County Tax and Condemnation Judge, recently noted at a seminar held by the Suffolk County Bar Association, an expert witness should understand that they are to answer the questions and not ask any while on the stand.

When a witness exhibits a lack of comprehension, it does not inspire trust. On the other hand, if an expert does not understand the question, he or she should request that it be rephrased. Experts are not required to guess or provide inaccurate testimony. A witness should answer one question at a time. Compound questions are improper, but a witness can ask for clarification. Take your time responding. No appraiser should let an attorney prod him or her into rapid responses that invite error.

The Appraiser's Workfile

The Uniform Standards of Professional Appraisal Practice (USPAP) require an appraiser to maintain a workfile for at least five years, or two years after the litigation is complete. Be aware that it will be reviewed by opposing counsel. Counsel should review this with the appraiser, and the appraiser should consider this as he prepares the appraisal. When served with a subpoena, the witness should advise the retaining attorney and provide him with a copy of the subpoena but not produce more than is requested in the subpoena.

Under USPAP's Record Keeping Rule, an appraiser must maintain a workfile for each appraisal. The workfile must include true copies of all written reports, documented on any type of media. (A true copy is a replica of the report transmitted to the client. A photocopy or an electronic copy of the entire report transmitted to the client satisfies the requirement of a true copy.)

It should be made clear that any report an appraiser delivers must be part of the workfile. It doesn't matter what is was labeled. If the report is transmitted to a client, it must be part of the appraiser's workfile.

The law of most states provides that once it has determined that a prior opinion of value exists it must be produced for use on cross-examination. The failure to produce a prior opinion requires a negative inference. Matter of Rockland Sewer (Split Rock), 120 A.D.3d 703 (2d Dept. 2014).

On cross-examination, the rules of evidence allow a party to impeach the credibility of his adversary's witness through the use of prior inconsistent statements.

Michael Rikon is a partner of Goldstein, Rikon, Rikon & Houghton.