Ch. 4 Expert Witness

Rule 26 - Appraisal Review time frame

Needs to be completed and submitted within the 30-day time period if the review is intended to be a rebuttal of the opposition's appraisal.

Rule 705 - Disclosure of Facts or Data Underlying Expert Opinion

The appraiser can give his opinion without going into the details behind the opinion. However, the opposing counsel can cross-examine the witness and bring out underlying facts or data.

Rule 26 - What is discoverable

The deposition may not be held before the appraiser's report has been completed and delivered to the opposing counsel.

Rule 703 - Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts when forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

Rule 608 - Evidence of Character and Conduct of Witness

The impeachment of the witness can be based on either personal character or specific instances of conduct.

Judge is the gatekeeper

The judge is to decide whether the expert is qualified to deliver reliable testimony and whether the expert's report is sufficiently reliable to be helpful to the Trier of Fact.

Rule 33 - Interrogatories to Parties

The time limit to respond is 30 days from the date of service of the interrogatories.

Rule 104 - Preliminary Questions

Governs who gets to be a witness and determines the relevancy of the testimony.

Rule 701 - Opinion Testimony by Lay Witnesses

Lay witnesses (fact witnesses) are not permitted to express opinions except those which are "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 106 - Remainder of Related Writings or Recorded Statements

The witness has the right to require that the entire content of that document be introduced rather than permit the limited quotation in the question to stand without context.

Rule 706 - Court Appointed Experts

This Rule permits the trial judge to appoint an expert witness rather than have the parties to the litigation do so.

Rule 704 - Opinion on Ultimate Issue

This Rule simply states that the one opinion that the expert CANNOT express while testifying is the ultimate question that the Trier of Fact is to answer.

Rule 16 - Pretrial Conferences; Scheduling; Management

This provision governs such items as discovery and sequence of pretrial events. The appraiser needs to understand that missing a deadline may have more consequences than simply disappointing a lender or having a penalty imposed on the appraisal fee. It may mean that the appraiser's report and testimony will not be admissible, causing retaining counsel's client to lose the case.

Rule 1 - Scope and Purpose

To secure the just, speedy, and inexpensive determination of every action and proceeding. In other words, the purpose is to make the process more efficient.

Rule 614 - Calling & Interrogation of Witnesses by Court

Trial judge can call his or her own witnesses. Expert should take this opportunity to "teach" and fully inform the judge on any questions that may help him or her make a just decision in the case.

Rule 609 - Impeachment by Evidence of Conviction of Crime

Under certain conditions, if the witness has been convicted of a crime, that conviction can be used to impeach the witness.

Rule 102 - Purpose & Construction

elimination of unjustifiable expense and delay

Rule 34 - Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

the appraiser can ask that retaining counsel exercise the rights under Rule 34, requesting the court issue orders to gain access to the property or to obtain documents and records about the property for the appraisal.

Rule 615 - Exclusion of Witnesses

"THE RULE" This rule permits either party to litigation to request that witnesses who will testify in the trial be excluded from the courtroom while it is in session so that they will not be able to listen to the testimony of other witnesses.

Rule 702 - Testimony by Experts

(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Review of five court cases

1) Frye v. United States - 1923 - established the "general acceptance" principle 2) Federal Rules of Evidence - Rule 702 - 1975 - established the rule for "scientific, technical, or other specialized knowledge" expert witness testimony 3) Daubert v. Merrell Dow Pharmaceuticals - 1993 - established the four-part Daubert test for evaluating expert testimony 4) GE v. Joiner - 1997 - confirmed the trial judge's gatekeeper role 5) Kumho Tire v. Carmichael - 1999 - expanded the Daubert tests to apply to all disciplines

Rule 702 Testimony by Experts

1) the testimony is based upon sufficient facts or data 2) the testimony is the product of reliable principles and methods 3) the witness has applied the principles and methods reliably to the facts of the case

United States v. 14.38 Acres of Land

A good example of the application of the Daubert Test. This is a rare case where the appellate court overruled the trial judge's gatekeeper role. Gatekeeper is not intended to serve as a replacement for the adversary system: Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

19 . Rule 26 - General Provisions Governing Discovery; Duty of Disclosure (continued)

A written report, and it must be delivered to the opposition no later than 90 days before the trial date. That written report must contain, at a minimum, six items: 1) All opinions the witness will express and their foundation and reasoning; 2) Data and information considered by the witness; 3) Any exhibits that will be used while giving the testimony in court; 4) Witness qualifications, including all publications authored in the previous 10 years; 5) List of all other cases in the last four years where testimony was given as an expert at trial or deposition; 6) Description of the compensation for the study and testimony. An appraisal report may need to be quite detailed. This may be at odds with the request of retaining counsel, who may want a less detailed report. Report should include any exhibits which the witness anticipates using as "demonstrative evidence" during testimony. report should include a statement of publications and testimony for the prescribed periods.

Rule 45 - Subpoena

An appraiser who is serving as a non-testifying expert may have a claim of privilege, as his or her workfile may fall under the privilege of the attorney's work product and be confidential.

Rule 30 - Deposition upon Oral Examination

Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30. Some items of interest in this Rule are: 1 - If an objection is raised by one of the attorneys, the deponent will still be required to provide an answer, but that answer will be subject to approval by the court after hearing the objection. 2 - The deponent may refuse to answer a question only when it is necessary to preserve a privilege, enforce a limitation directly by the court, or present a motion under Rule 30(d)(4). 3 - The maximum time limit for a deposition is one day of seven hours. 4 - The deponent has the right to review and correct the transcript. He or she will have 30 days after receiving the transcript to review and submit corrections. However, this right must be affirmed and requested during the deposition. It is recommended that the appraiser expert always request this right to review and correct, as it will provide the appraiser with a copy of the transcript of the "oral report" for his or her workfile.

700 Rules

Are the most important ones for the expert witness, as they directly address who can testify as an expert and what evidence can be presented.

Rule 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Even though a fact may be relevant, if it may create unfair prejudice or confusion, or be misleading to the jury, the judge can rule it inadmissible.

General Electric v. Joiner

Confirmed the latitude and discretion that a trial judge has in deciding whether to include or exclude expert witness testimony. Confirmed the role of the trial judge as the gatekeeper.

Frye v. United States

Dealt with the admissibility of the new polygraph, lie detector, test device. The new technology had not been sufficiently established to have gained general acceptance in the particular field in which it belongs. Therefore, the court did not permit the polygraph to be admitted as evidence in the case.

Kumho Tire v. Carmichael

Expanded the application of the Daubert tests to disciplines outside the scientific realm.All experts who base their testimony on scientific, technical, or other specialized knowledge" can have the Daubert tests applied.

Rule 607 - Who May Impeach

Expert witness will be subject to impeachment to reduce the credibility of his or her testimony. It is of interest to note that the attempt to impeach may come from any party, including retaining counsel!

Rule 26- Supplementation of Disclosures and Responses

If an expert learns that his original report is missing information, is incomplete, or needs a correction, that report can be amended or corrected. In fact, it imposes a "duty" on the expert to submit such addition or correction.

Rule 602 - Lack of Personal Knowledge

If the appraiser is testifying as a "fact witness," this rule would apply. The appraiser would be able to testify only about things of which he or she has personal knowledge, and cannot express opinions.

Rule 612 - Writing Used to Refresh Memory

If the appraiser needs to have notes while on the witness stand, the notes can be required to be entered as exhibits.

Daubert v. Merrell Dow Pharmaceuticals, Inc.

It confirmed the role of the trial judge as the "gatekeeper" of expert testimony The Supreme Court identified four tests that can be used by the gatekeeper-judge to determine whether to admit the expert testimony. It is typically understood that it is not necessary for the expert testimony to pass all four tests. 1) Tested - Whether the theory or technique used by the expert can be, and has been, tested 2) Peer Review - Whether the theory or technique has been subjected to peer review and publication 3) Error Rate - The known or potential rate of error of the method used is known or predictable 4) General Acceptance - The degree of the method's or conclusion's acceptance within the relevant scientific community

Rule 401 - Definitions of Relevant Evidence

One of the qualifications for determining whether a trial judge can permit an expert witness's testimony is relevance to the issue. This Rule defines relevance of the evidence.

Rule 613 - Prior Statements of Witnesses

One way opposing counsel may attempt to impeach the witness is by bringing up prior statements inconsistent with current testimony. Also, if a previous appraisal report found by opposing counsel had statements or conclusions inconsistent with the appraisal report submitted to the current trial, statements from that appraisal could be introduced to impeach the witness. The witness is afforded an opportunity to explain or deny the same.

Rule 26 - General Provisions Governing Discovery; Duty of Disclosure

Probably the most important Federal Rule of Civil Procedure for the expert witness. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

Rule 611 - Mode & Order of Interrogation & Presentation

Questions on cross-examination are limited to (a) those matters brought up on direct examination and (b) matters affecting the credibility of the witness.

Gatekeeper Rules

The Daubert tests explained earlier apply to Federal Courts. Many states have adopted the Daubert tests for state courts. Some have other rules for admission of expert testimony. When in a state court, the appraiser should consult with retaining counsel about whether or not the Daubert tests would apply.