Appraisal Witness: Qualified Expert

Appraisal Witness: Qualified Expert

Judges opinions about Expert Witnesses

Judges opinions about Expert Witnesses are diverse, opinionated but in most cases valid. The expert appraisal witness must bring technical or scientific skills to the courtroom and will be evaluated by the judge by reference to experience or knowledge in a specific field.

The judge of the case makes the final decision on whether or not to accept the opinion of the expert witness. One of the most famous statements made by a judge qualifying an expert witness is: “…I have a discrete understanding of my limitations, but I also have an understanding of what my experience tells me in having listened for the past 30 years, to appraisers, and while they may not bear all the credentials and all the publications, I have yet to find an appraiser that ever says anything that is cogent and persuasive. Go ahead. I’m always willing to be persuaded.”

Judges cited demeanor, sincerity and body language, as well as careful consideration of evidence. Judges are negatively influenced by aggressive attitude, rude or poor eye contact. Judges look for the ability to explain in clear, consistent simple terms, and qualifications substantiate the expert’s findings without bias.

The appraiser’s report and valuation must reflect real analysis, not simply the appraiser’s ipsi dixit advocacy. “Expert opinions…are no better than the data and the methodology that undergird them.” Id. At 24. An expert will be required to “vouchsafe the reliability of the data on which he relies and explained how the accumulation of that data was consistent with standards of the profession.” Id. Failing to do the homework risks a finding that the “expert testimony offers only a bare conclusion is insufficient to prove the expert’s point.” SMS Systems Maintenance Services, Inc., v. Digital Equipment Corp.

Another judge’s opinion about expert witness clarifies an appraiser’s credentials before he even gets the chance to state them: “I don’t really care about your certifications, although I do appreciate that this is somehow made up by persons who have some professional standing in connection with some effort by the government to improve quality and integrity of appraisals… I’m sure they are all moving, but I really want to know what cases you of appeared in, what books you’ve written or major articles.” J. Bernstein U.S. Bankruptcy Court

The judge in this case said, “an expert opinion is inadmissible if it is connected to existing data only by the ipsi dixit of the expert, for a court may conclude that there is simply too great an analytical gap between the data in the opinion proffered.” General Electric Co. V. Joiner

In commenting to the plaintiff’s attorney, this judge replies, “I absolutely need to know the details of the experts thought process, not simply so your witness can persuade me, but so I can coherently put that analysis into the decision.”

This bankruptcy judge concluded his statements: “…best the valuation of an enterprise… is an exercise in educated guesswork. At worst, it is not much more than crystal ball gazing… it may be that there are better ways to determine value than through courtroom dialectic. That said, the court must work within the system created by Congress and, in valuing the company in Chapter 11, that system contemplates an adversary contest among parties before a neutral judge.” Mirant,et al. Judge D. Michael Lynn of Federal Bankruptcy Court in Fort Worth, Texas

The courts are relying on its participating attorneys to obtain experts that have prepared valuation reports in an unbiased and objective manner concurring with the current state of the appraisal practice. If an expert appraisal witnesses is chosen that cannot fulfill these qualifications the attorneys will suffer the adverse consequences from an excess of vigorous advocacy that impairs the truth seeking duties of the court.

Each week, another case comes to light in which the judge will impeach an expert witness because he or she will fail to complete the simplest of documentation. Each appraisal should be executed as if without a doubt, the appraisal will have to be defended in the court of law. A successful expert witness appraiser must document and use the accepted methodology in every appraisal in order to present evidence to an eventual Court that every care was taken to procure comparables, pictures, valuations, history, and current value influence.

Judges opinions about expert witnesses can be greatly influenced if these simple guidelines are used in the expert witness’ report and all references to the court are provable by the actions listed above and the methodology approved by the Appraisal Commission. In all cases, ipsi dixit (“because I said so”, “believe me because I’ve been in the appraisal business for 30 years”), must never be used to substantiate a valuation, an appraisal or an appraisal report.

Still another judge’s opinion about expert witnesses: To be admissible, expert testimony must be reliable and relevant. The trial judge’s job is to “ensure that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrill Dow Pharms., Inc.

Durkin Valuation Associates have the experience, the current accreditations, and a history of success as expert appraisal witnesses. Call us, (617) 720-0332

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