Expert Witness for Commercial Appraisers

Because, as an appraiser, you always need to maintain an unbiased appearance regarding the outcome of the case, it is recommended that you always request a ________ that would require you to provide testimony in a deposition or at trial. Service Papers Subpoena Police visit Second expert witness

Subpoena

When an appraiser is requested to testify in a case, the request is often delivered in what form? Court order Subpoena Summons Warrant

Subpoena

The _______________ is a subpoena requiring the appraiser to produce specified documents. Subpoena Duces Tecum Deposition Subpoena Request for Evidence Subpoena Ab Extra Subpoena

Subpoena Duces Tecum

"A procedural device available for prompt and expeditious disposition of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only question of law is involved" is the definition of ___________ in the litigation process. Summary Judgment Court Decree Motion to Dismiss Voir Dire

Summary Judgment

Mannerisms can have a negative impact on the appraiser's communication from the witness stand. Which of the following was suggested as a good way to discover and eliminate negative mannerisms? Read the book How to Become a Dangerous Witness Hire a communications consultant Ask your spouse what irritates him or her Videotape a practice interrogation

Videotape a practice interrogation

Following the chess game analogy of the instructor, what kind of answer is the best way for the appraiser expert witness to achieve a stalemate during cross examination? Using the "It depends" answer Qualifying the answer carefully Refusing to answer a hypothetical question Answering only with a simple "yes" or "no"

Using the "It depends" answer

An appraiser's testimony should be towards the Defense towards the retaining council neutral towards whatever party they feel is correct

neutral

According to the study on expert witness fees, the average hourly fees for all non-medical experts was $_____ , and for medical experts it was $_____ , as of the date of the 2009 study. $150 / $275 $248 / $555 $276 / $388 $355 / $411

$248 / $555

You are preparing your appraisal report for a trial in a Federal District court. You have published real estate-related articles in the Appraisal Journal, the Realtors Magazine, the CCIM Journal, and other publications as follows: 15 years ago - 2 articles; 12 years ago - 1 article; 8 years ago - 4 articles; 3 years ago - 1 article; last year - 3 articles. How many articles must be included in your report to comply with Rule 26? 3 8 9 11

8

According to the study on expert witness fees, what typically happens when a deposition time extends beyond the period covered in the initial pre-payment of the deposition fees? 23% of experts refuse to continue without additional payment; 77% continue and expect the balance after deposition concludes 77% of experts refuse to continue with additional payment; 23% continue and expect the balance after deposition concludes Most experts disregard the time and worry about it after the deposition is over None of the above is correct

23% of experts refuse to continue without additional payment; 77% continue and expect the balance after deposition concludes

In a case where the appraiser is asked to perform an appraisal review on the appraisal done for the opposition, the appraiser should note that the appraisal review would need to be completed and submitted within the ___________ time period if the review is intended to be a rebuttal of the opposition's appraisal. 30-day 90-day 7-day 3-day

30-day In a case where the appraiser is asked to perform an appraisal review on the appraisal done for the opposition, the appraiser should note that the appraisal review would need 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.

In drafting the CV, you are considering the following litigation assignments to show qualified experience. You plan to provide a summary of the case, the parties, and the property involved. Which case would be appropriate to include with this detail? A case where you provided consulting services to the attorney who decided that the case did not have merit so did not pursue further action. A case where you were sued by a property owner for under-appraisal, and the case was dismissed without any finding of liability A case where the trial was held and a final decision was delivered by the jury Any of these

A case where the trial was held and a final decision was delivered by the jury Chapter Nine - How to Present Yourself - Although an appraiser must keep in mind the requirements of USPAP regarding confidentiality about previous assignments, it is a good idea to include in this document a list of past institutional clients or past appraisal types which you have completed. For litigation assignments where a formal filing did not occur creating a public record of the case, it would be wise for the expert to only describe the case in a "generic" manner, without revealing the specific parties or property. If the complaint was filed, thus creating "public records," the parties and property could be identified, but more detailed descriptions may endanger confidential information, so the expert needs to exercise care in protecting anything that would be confidential. A case in which you were the defendant would not be appropriate for use.

What is the definition of a Curriculum Vitae? A legal pleading designed to gather information from a legal opponent A feature in the Federal Rules of Civil Procedure that stipulates how an objection can be made in a trial A formula for designing a trial strategy in civil litigation A definitive presentation of an expert's qualifications for qualifying as an expert in a trial

A definitive presentation of an expert's qualifications for qualifying as an expert in a trial

In preparing your CV, you recall that the Civil Rules of Civil Procedure, Rule 26, require that, in your expert report, you need to include all publications authored in the previous 10 years and all cases in which you testified as an expert at trial or deposition in the previous 4 years. In your CV, which of the following MUST you include? A journal article you published 12 years ago A trial testimony experience 5 years ago A deposition testimony experience 3 years ago All of these must be included

A deposition testimony experience 3 years ago

According to Lubet, which of the following would provide the most valuable background and expertise for an appraiser expert witness? An internship in a law firm A faculty position in a community college A national committee chairmanship in the Appraisal Institute An elected city council position in the same community as the subject property

A faculty position in a community college Chapter One - Role of the Witness - "For the expert witness, credibility is everything. No matter how well developed the opinion, how rigorous the preparation, how unfailingly accurate the work, it may all go for naught if the expert cannot credibly explain her opinion... Teachers no doubt provide the best models for expert witnesses."

What is a Lock-Up fee? A fee that is held in escrow until final resolution of the litigation A fee paid by an attorney to spring an appraiser from prison after he perjured himself A fee paid to an expert to compensate the expert for loss of business by not being able to work for the opposition in a pending case None of these

A fee paid to an expert to compensate the expert for loss of business by not being able to work for the opposition in a pending case

Competence of the appraiser is an important consideration when contemplating a litigation appraisal assignment for a specialty property. Which of the following would be the BEST example of a property requiring special competence? Development land on the growing edge of a metropolitan market A marina in San Diego An office building in the city's central business district A 30-unit apartment building in the suburbs

A marina in San Diego

The general requirements regarding giving an oral appraisal report require which of the following? A separate Certification covering the oral report A pre-existing workfile sufficient to support the oral report a but not b Neither a nor b

A pre-existing workfile sufficient to support the oral report Chapter Six - Preliminary Considerations - Oral Reports. It needs to be pointed out that Standards Rule 2-4 requires that when an oral report is given, the report contents must address the substantive matters set forth in Standards Rule 2-2(b) for the Appraisal Report. If the appraiser is requested to give the results of the appraisal to retaining counsel with an oral report before writing the written appraisal report, he or she needs to be sure that all of the substantive matters itemized above for a written Appraisal Report are discussed with retaining counsel. If a written report has already been prepared and delivered, the Certification in that report is sufficient to cover subsequent oral reports. If the written report has not yet been prepared, the appraiser is required to prepare a Certification specifically for the oral report and include it in the workfile.

What is defined by the USPAP as any communication, written or oral, of an appraisal or appraisal review that is transmitted to the client or a party authorized by the client upon completion of an assignment? A testimony A comparative analysis A report An appraisal

A report

You are preparing a report for a federal land acquisition project and are required to follow the Standards in the Yellow Book. You are told to expect that it will end up in court. You have selected a number of comparables which are applicable and you are deciding which ones to include in your report. The report is due in two days so you are in the final process of putting everything together. Which of the following comparables could you include in the report without risking the possibility of the appraisal being ruled inadmissible? A sale which you personally verified with the buyer by phone two weeks ago A lease verified by an associate in your office two months ago A sale obtained from a colleague appraiser from another office which he said he confirmed just last week All of the above could be included

A sale which you personally verified with the buyer by phone two weeks ago Chapter Six - Other considerations - Additionally, work done for federal land acquisitions, under the guidelines of the Yellow Book, requires that the appraiser who will testify in court has personally verified the sales.

According to the course content, the term "just compensation" is an example of: A "magic" term that will ensure admissibility of that part of the report A term that should not be used in an eminent domain appraisal A term that is synonymous with "market value" A term that is too emotional to be considered a non-advocacy term in an appraisal

A term that should not be used in an eminent domain appraisal Chapter Six - Contents of the Written Report - One example is the use of the term "just compensation." An appraisal done for eminent domain purposes should not use this term but rather use the term "market value." It is the role of the appraiser to determine "market value", but the role of the Trier of Fact to determine "just compensation." As learned earlier, the expert witness can express opinions, but the one opinion that the appraiser is not permitted to express is that which the Trier of Fact is to determine. For example, a medical expert in a criminal trial cannot say, "He is guilty." He can only express opinions about the evidence that points to guilt. It is the jury's task to express the final opinion that the defendant is guilty. So it is the jury's job to determine "just compensation", not the appraiser's.

In the court case where environmental contamination was the issue, which part of USPAP did the court specifically cite as the basis for its decision? STANDARD 1 - Dealing with the appraisal STANDARD 2 - Dealing with the appraisal report Advisory Opinions dealing with the methodology Frequently Asked Questions dealing with the specific issue

Advisory Opinions dealing with the methodology

Which of the following is NOT an acceptable reason for an appraiser charging a higher fee for litigation assignments? The workload is more intense because of the need for greater support. Advocacy services require additional preparation, analysis, and attention to detail on the part of the appraiser. The appraisal will be reviewed in more detail so the opposition can find weaknesses. A detailed record of each step in the valuation process should be maintained.

Advocacy services require additional preparation, analysis, and attention to detail on the part of the appraiser.

The course material presented a table with the parties in Direct Examination and their goals. Which of the following is NOT one of the goals stated for the appraisal expert? Advocate for the client's position Avoid volunteering unnecessary information Educate the jury as to why the expert's opinion is correct and reasonable Maintain a calm and polite demeanor

Advocate for the client's position

In evaluating whether you have the competency required to accept a litigation assignment, which aspects of competency need to be considered? Geography Property type Methodology All of the above

All of the above

In preparing for trial testimony, if there is an appraisal prepared for the opposition, the appraiser should do which of the following after consulting with retaining counsel? Determine the differences between the two and why Prepare a USPAP Standard 3 appraisal review workfile Draft a narrative to take to trial comprised of the minimum requirements for an oral appraisal review report All of the above

All of the above

Which of the following examples meets the formal definition of a "report" in USPAP, requiring a workfile and signed Certification? The host at a party knows you are an appraiser and asks if you think his home is still worth what he paid for it 10 years ago. You answer "Sure." You have written a 125 page report following extensive research on a subject property. You are testifying in a deposition about a property you have researched but about which you have not yet written a report. All of the above

All of the above

Which of the following is one of the three parts of the foundation for the expert witness, as described in this course? Appraisal expertise USPAP expertise Legal knowledge All of the above

All of the above

Which of the following statements reflects the basic rules for testifying and consulting experts? If the expert is testifying, all communications are discoverable which are not otherwise privileged, such as "work product of the attorney." If the expert is only consulting, the work done for the attorney is part of the attorney's work product and is not discoverable. If a testifying expert uses a part of the consulting expert's work, then the work of the consulting expert is discoverable. All of the above

All of the above

You are asked to appraise an oil refinery involved in litigation. You have never appraised an oil refinery and no one in your firm has. You agree to accept the assignment. Which of the following is (are) you required to do? Tell the client before accepting that you lack experience in this type of property Take all necessary steps to obtain the required competency to satisfactorily complete the appraisal Describe in your appraisal report, which will be delivered to the opposition, that you had no experience and what steps you took to gain the required competency All of the above

All of the above

You are working on a litigation assignment that was received from an expert witness referral agency. You have agreed that the agency can collect your fees for you and keep 20 percent of the fee for their administrative services. You wonder whether this fee-sharing structure needs to be disclosed in the appraisal report and discover that: USPAP Management Section of the ETHICS RULE may require disclosure in the report Federal Rule 26 requires that the compensation charged for the study must be disclosed Appraisal licensing boards may apply the USPAP disclosure requirements to this structure All of the above

All of the above

According to Rule 702 in the Federal Rules of Evidence, the trial judge, as gatekeeper, can determine whether an appraiser put forth by retaining counsel will be permitted to testify. Which of the following is one of the tests based on Rule 702 that the judge can apply? The testimony is based upon sufficient facts or data. The testimony is the product of reliable principles and methods. The witness has applied the principles and methods reliably to the facts of the case. All of the above are included in the relevant tests.

All of the above are included in the relevant tests.

The article entitled "Expert Blogs: Loose Lips Sink . . . Trials?" indicated that there are potentially negative outcomes from an expert witness practitioner participating in the blogging on the internet. Which of the following points are among the negatives stated by the author? Casual statements made on the blog can be used for impeaching the witness. Some attorneys would never hire an expert who has a blog as it offers many ways the expert can be "hanged." Comments of the blogger on personal interests or hobbies could be used against the expert. All of the above are mentioned.

All of the above are mentioned.

The hypothetical question on cross examination is one of the most dangerous traps for the appraiser expert witness during testimony. Why? It poses a possible USPAP violation while under oath. It can destroy the credibility of the witness' appraisal. It can provide outside support for opposing counsel's trial strategy. All of the above are potential dangers.

All of the above are potential dangers.

You accept a litigation assignment and prepare an appraisal. In your report you used the FIRREA definition of "market value" as the value to determine. When you are giving your testimony in court, opposing counsel points out that the issue in the case has to do with "liquidation value." Which of the following is true? You failed to determine what value was needed in the initial conversation with retaining counsel. Your testimony may very well be ruled inadmissible. You may find that the next litigation assignment will have you as the defendant. All of the above are true.

All of the above are true.

Why is the "It depends" answer the best way to defuse opposing counsel's cross examination questions and achieve a stalemate? It eliminates the simple "yes" or "no" answer to a leading question. It permits the witness to give a full explanation about "on what the answer depends." If counsel ignores the response and moves on, he or she is implicitly admitting to the jury that he or she lost that round. All of the above are valid reasons for using this answer.

All of the above are valid reasons for using this answer.

Which of the following should be done by the appraiser while preparing for a deposition? Review all relevant dates in the assignment, including first contact by retaining counsel Review any transcripts of other experts who have testified before you Review your CV to be sure it is complete and current All of the above should be part of preparation

All of the above should be part of preparation

Which of the following was (were) mentioned in the course materials as a way(s) that the expert's report and testimony may be challenged and excluded from the evidence? Expert's competency Daubert challenge Rule 403 All of the above were mentioned

All of the above were mentioned

In a litigation assignment, which of the following documents in the possession of retaining counsel would be relevant to the preparation of the appraisal report? Interrogatories Pleadings Deposition transcripts All of the above would be relevant

All of the above would be relevant

If, while on the witness stand, an appraiser is asked to provide her opinion of the appraisal performed for the other side, and she makes a few statements about the merits of the other appraisal, what has just happened? She has delivered an oral appraisal review report. If she does not have a workfile on the other appraisal, she has violated USPAP. She has given opposing counsel an opportunity to impeach her professionalism and character, diminishing the credibility of her appraisal. All of the above.

All of the above.

Which of the following examples meets the formal definition of a "report" in USPAP that would require a workfile and signed certification? The host at a party knows you are an appraiser and asks if you think his home is still worth what he paid for it 10 years ago. You answer, "Sure." You have written a 125-page report following extensive research on a subject property. You are testifying in a deposition about a property you have researched but about which you have not yet written a report. All of the above.

All of the above.

You are appraising a property for litigation. Retaining counsel tells you that discovery ends on June 30th. Your report is completed and delivered to retaining counsel on July 5th. What might be the result of this difference between the end of discovery and your delivery date? Your report may not be admissible in the trial. Opposing counsel will have less time to develop a response to your appraisal report. You will probably have fewer assignments from this attorney in the future. All of the above.

All of the above.

You have a client for whom you perform appraisal reviews. The client only wants to have a verbal conversation with you on the results of the reviews, after which he pays your fee. What must you do in this situation to comply with USPAP? Prepare an appraisal review workfile to adequately support your oral report. Include in the workfile a summary of what was expressed in the oral report. Include a signed and dated Certification in the workfile covering the oral report. All of the above.

All of the above.

According to Ted Whitmer, MAI, there are three possible situations regarding bias or objectivity by an appraiser. Which one of the options below is NOT one of the three? Unbiased - expert reaches opinion in an unbiased manner and advocates only the expert's position Bias Develops during Assignment - expert reaches unbiased opinion, but during assignment, unconsciously becomes an advocate for client's position Bias from the Beginning - expert hired by attorney and advocates for client from beginning All of them are included in the three options described by Whitmer

All of them are included in the three options described by Whitmer

Why is it advisable for the expert witness to have all expert witness fees charged before the deposition or court testimony be paid in full before entering the deposition or the courtroom? It will help minimize "slow pay" by the client if the testimony does not go well for the client. It will minimize the possibility of opposing counsel finding a way to impeach the witness for bias because of the unpaid fees. It is sound business practice. All of these

All of these

You are performing an appraisal for litigation and receive instructions which, if followed, would preclude you from complying with all USPAP requirements. Which situation would create a jurisdictional exception under USPAP? An order from the court to omit the income approach on a shopping center appraisal. A regulation from the Bureau of Indian Affairs requiring that water rights be ignored for an appraisal of land on an Indian reservation. An instruction from a judge not to consider or disclose the presence of an underground storage tank on the subject property. All of these

All of these

You are performing an appraisal for litigation. Which of these sources could create a jurisdictional exception from the sales history research and analysis requirement of USPAP Standards Rule 1-5? An order from the court to omit the analysis. A law that states the appraiser may not consider this analysis. A regulation from a government agency instructing the appraiser to omit this analysis. All of these

All of these

Which of the following should be included in an appraiser's Curriculum Vitae? Earnings history Board exam scores High school transcripts All publications authored in the previous 10 years

All publications authored in the previous 10 years

According to Ted Whitmer, MAI, one of the most effective ways to totally discredit a witness is to catch: A math error in the income approach A serious problem with one of the comparable sales An illogical leap to a conclusion in the reconciliation An ethical blunder by the appraiser

An ethical blunder by the appraiser

In a trial, you are discussing the comparable sales you have used and opposing counsel asks, "Tell us how the sale comparables you used are superior to the sale comparables used by our appraiser, and how that makes your report more reliable." You answer, "The other appraiser failed to select my comparables 1 and 2, which means that the other appraisal did not consider the best comparables, making his decisions less reliable." Which of the following describes what your testimony includes? An oral appraisal review report of the other appraisal A harmless statement which does not create any USPAP compliance issues for the appraiser A violation of USPAP for issuing an oral appraisal review report without a previously created workfile to support the appraisal review None of the above

An oral appraisal review report of the other appraisal

You have just completed a shopping center appraisal with an in-depth "Level D" market analysis. You decide that you would like to use that work to increase your litigation business. What could you do with that study to accomplish this goal? Send a copy of the report to your attorney contacts Lift out the market study, sanitize it, and release it to the local newspaper Call the local TV news anchor and let him or her know you are available for an interview on the topic Answers b and c only

Answers b and c only Chapter Nine - Where to Promote Your Availability - News Releases. If you have completed an in-depth market study for an appraisal, lift out the market study portion, sanitize it so it does not refer to your subject property, and change it into a news release. Provide that to the local press. It may get covered and your name will be attached to the article, giving you a "high profile" as an expert in that part of the real estate market. Choice "a" would be a USPAP violation since the appraisal cannot be shared without the client's permission.

According to the Federal Rules of Evidence, Rule 607, who may impeach a witness testifying in a trial? Retaining counsel Opposing counsel Trial Judge Any of the above

Any of the above

According to Rule 608 of the Federal Rules of Evidence, a witness may be impeached based on: Personal character defects Specific misconduct Professional incompetence Any of the above

Any of the above Chapter Four - Federal Rules of Evidence - Rule 608 - Evidence of Character and Conduct of Witness. This Rule indicates that the impeachment of the witness can be based on either personal character or specific instances of conduct. The appraiser could come under assault from a number of directions, including professional misconduct or incompetence. If successful, the report and testimony could be ruled inadmissible or have less weight given to it.

You are appraising a property for a probate court and have to set your fee. Which of the following would be permissible? A flat fee like any other appraisal assignment An hourly fee based on time spent, PLUS direct expenses A percentage fee based on the appraised value Any of the above is permissible

Any of the above is permissible Chapter Three - FAQ 109 - In a probate court case, the court can instruct you to use a fee based on the percentage of appraised value. Some state probate courts are authorized to do so. This would be a jurisdictional exception. You would need to explain in your report why your fee is not in compliance with USPAP. Thus, any of the choices would be permissible.

During your first deposition as an expert witness, retaining counsel objects to a question raised by opposing counsel. You attempt to answer the question, but retaining counsel instructs you not to do so. According to Rule 30, the only basis retaining counsel has for requiring you to withhold your answer is: To preserve a privilege about confidential information To enforce a limitation that the trial judge has previously imposed To stop opposing counsel from conducting the deposition in a manner intended to embarrass you Any of the above would provide legitimate basis for the instruction not to answer

Any of the above would provide legitimate basis for the instruction not to answer

In preparing your CV, you recall that the Federal Rules of Civil Procedure, Rule 26, require that, in your expert report, you need to include all publications authored in the previous 10 years and all cases in which you testified as an expert at trial or deposition in the previous 4 years. In your CV, which of the following would you include? A journal article you published 8 years ago A trial testimony experience 3 years ago A deposition testimony experience 5 years ago Any of these could be included

Any of these could be included

In preparing your CV, you recall that the Civil Rules of Civil Procedure, Rule 26, require that, in your expert report, you need to include all publications authored in the previous 10 years and all cases in which you testified as an expert at trial or deposition in the previous 4 years. In your CV, which of the following would you include? A journal article you published 8 years ago A trial testimony experience 3 years ago A deposition testimony experience 5 years ago Any of these could be included

Any of these could be included Chapter Nine - How to Present Yourself - The Rules cited govern what is included in the expert report in a pending litigation. However, the CV is not the only way that information can be included. It is a personal document that can be used in or out of an expert report submitted to the court. Therefore, whether any of these, or all of these, should be included in the CV is a personal decision. Generally, the more experience of this nature you include, the stronger will be the presentation to prospective clients. But there are no requirements about what to include or exclude on this particular issue.

The three basic areas of knowledge that need to be mastered by an appraiser who will serve as an expert witness include: Architectural expertise, market knowledge, and area history Appraisal expertise, USPAP expertise, and legal knowledge Building codes, construction knowledge, and real estate facts Commercial and residential property expertise, mathematical expertise, and report efficiency

Appraisal expertise, USPAP expertise, and legal knowledge

What is the most common fee structure used by appraisers in litigation assignments? Flat fee Hourly fee Per Diem Fee Combination of flat fee and hourly fee

Combination of flat fee and hourly fee

While you are testifying at deposition, a question is raised that would require you to divulge confidential information on a previous appraisal, violating the Confidentiality section of the ETHICS RULE of USPAP. Your response should be: Refuse to answer and risk charges of "contempt of court" Answer the question and, if challenged later, claim the Jurisdictional Exception Rule of USPAP as justification Ask for a recess to call your personal attorney for consultation Ask to go "off the record" to consult with retaining counsel on the question

Ask for a recess to call your personal attorney for consultation

There are many types of people who hire expert witnesses. Which person most frequently makes the hiring decision? Attorney in charge of the case Paralegal Insurance Company representative Judge

Attorney in charge of the case Chapter Nine - Who Hires the Expert For Litigation - Most frequently, it is the attorney in charge of the case who makes the final selection and hires the appraiser for litigation, although support staff is utilized in the initial screening process.

According to the course content, the most important single goal of the appraisal expert during cross examination is to: Avoid advocacy or appearance of advocacy Avoid giving unnecessary information Educate the jury as to why the expert's opinion is correct and reasonable Keep concentration and focus

Avoid advocacy or appearance of advocacy

During breaks in the deposition, the expert witness should: Inquire from opposing counsel about his or her questioning Consult with retaining counsel about the progress of questioning Avoid anything but casual, unrelated conversation with others Discuss technical issues with the Court Reporter

Avoid anything but casual, unrelated conversation with others

According to the article titled, "The Local Arm of the Law: Getting Involved in Expert Testimony," there are five skills necessary to become successful as an expert witness. Which of the following is NOT one of the five mentioned in the article? Able to take criticism Have a good memory Be articulate Be a fast learner

Be a fast learner

Which of the following sequences of classifying the appraiser's role is NOT possible to still maintain confidentiality of the attorney work product? Begin as consulting expert - change to testifying expert Begin as testifying expert - change to consulting expert Begin as testifying expert - continue as testifying expert Begin as consulting expert - continue as consulting expert

Begin as testifying expert - change to consulting expert

Lubet suggests following a four-step approach to the preparation of the appraisal report for litigation. Which one of the items listed below is NOT one of these steps? Brainstorming Solutions Information Transfer Data Development Organization and Presentation

Brainstorming Solutions

Which of the following actions is least likely to be considered unethical for an expert witness to do during attendance in the courthouse when the trial is underway? Speaking to the judge during the lunch hour as they ride the elevator to the ground floor Chatting with one of the jurors in the hallway during a break Sitting with retaining counsel at counsel's table during a recess Being argumentative with opposing counsel during cross examination

Being argumentative with opposing counsel during cross examination Chapter One - Ethics Issues for all Experts - Although not unethical, it is not considered good professional conduct to argue with the opposing counsel during cross examination. Where most experts encounter problems is the conduct when not on the witness stand. Sitting with retaining counsel during the trial can give the impression of favoring that side of the case and should be avoided. Speaking to the judge or a juror outside of the courtroom is considered unethical and should be avoided. Likewise, communications with other witnesses should be limited. Any communication with retaining counsel when the court has recessed during the expert's testimony should be avoided.

According to the study on expert witness fees, which of the following problems "commonly faced by experts" can be solved with a non-refundable retainer? Case settling before the expert can accrue enough time to justify adequate fees Being conflicted out of the possibility of working for the opposition by being exposed to confidential information Delay in having monthly invoices paid when due None of the above

Being conflicted out of the possibility of working for the opposition by being exposed to confidential information

You are preparing an appraisal report to be used in litigation. In putting in the required documents addressed in Rule 26 of the Federal Rules of Civil Procedure, you consider the following items in your past: Book written seven years ago; journal article published 12 years ago; deposition testimony in a case three years prior; trial testimony given one year ago. Which of the above would you be required to include in your appraisal report for use in trial? Book, journal article, deposition testimony, trial testimony Book, journal article, trial testimony Journal article, deposition testimony, trial testimony Book, deposition testimony, trial testimony

Book, deposition testimony, trial testimony Chapter Four - Federal Rules of Civil Procedure - It should be noted that, according to this Rule, the expert witness must produce 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: All opinions the witness will express and their foundation and reasoning; data and information considered by the witness; any exhibits that will be used while giving the testimony in court; witness qualifications, including all publications authored in the previous 10 years; list of all other cases in the last four years where testimony was given as an expert at trial or deposition; description of the compensation for the study and testimony.

As you approach the date when you will testify in court, it is recommended that your hourly fees be billed and paid in full with little or no outstanding balance. The reasons for this are: Opposing counsel will not be able to twist the fact of unpaid fees into a reason for the witness providing favorable testimony under threat of non-payment. The principle that "the value of one's services diminishes in direct proportion to the time since rendered" and that, if the outcome is not favorable to the client, the client may be less inclined to make a timely payment Both a and b none of the above

Both a and b

How should an appraiser expert witness handle the issue of a subpoena to testify in deposition and trial? If a subpoena is issued, he or she must appear as ordered. If not initiated by the lawyers, the appraiser should request that a subpoena be issued demanding his or her appearance. If a subpoena is received, the appraiser should provide a written acknowledgement of its receipt. Both a and b.

Both a and b.

It is recommended that the appraiser bring the "authorities" relied on in the appraisal to the deposition. The reason(s) for this is (are): To discourage any contemplated Daubert challenge by opposing counsel To reference if the appraiser forgets an answer on methodology To prove that the appraiser based his or her work on accepted methodology Both a and c

Both a and c

Why is it recommended that there be only one signature on an appraisal report submitted for litigation? The cost to pay two appraisers is excessive. Coordination with counsel is made more complex when two appraisers work on the same assignment. The court will need to determine which signers produced which part of the report. Both appraisers could be called, possibly producing conflicting testimony.

Both appraisers could be called, possibly producing conflicting testimony.

You have given an oral report in a trial about an appraisal you prepared for that litigation. Which statements are TRUE? You must have either a summary of your oral report (testimony) or a copy of the transcript in the workfile. You must have a signed and dated Certification for the oral report in your workfile. Both statements are true Neither statement is true

Both statements are true

In a deposition, the appraiser expert witness should state clearly that he or she will not waive the right to review and correct the transcript of the deposition. Why? The right to read and correct the transcript must be affirmed by the deponent to preserve this right. This gives the deponent the right to file a motion to appeal statements made in the testimony. This provides a transcript which can be used as the summary of the oral report for the appraiser's workfile. Both the first and third choices are correct.

Both the first and third choices are correct.

The appraisal report should include citations of authorities regarding correct appraisal theory and methodology to reduce areas where the appraiser might be discredited by opposing counsel. The course material refers to this citation of authoritative sources as:x Specialty competence Justification Errors and omissions insurance Bulletproofing

Bulletproofing

The appraisal report should include citations of authorities regarding correct appraiser theory and methodology to reduce areas where the appraiser might be discredited by opposing counsel. The course material refers to this citation of authoritative sources as: Specialty competence Justification Errors and omissions insurance Bulletproofing

Bulletproofing

According to an expert who works with marketing experts, what is the most important single thing that attorneys look for in an expert witness? Communication skills Professional expertise Writing skills Comfort

Comfort Chapter Nine - What Attorneys Look For - In a recent interview with Jim Robinson, president of JurisPro.com, an expert witness directory and marketing services, he stated that the most important thing which attorneys look for in an expert is "comfort." The attorneys can be comfortable with the expert knowing that the expert has done his homework, can communicate the results of the homework effectively, and has a personality which will be appealing. In addition to the expertise, there needs to be the right "chemistry" between the expert and the attorney.

An appraiser admits on the witness stand that his compensation is contingent upon the outcome of the case. Which of the following four problem areas would most likely cause his appraisal to be ruled inadmissible? Correct definitions Insufficient data Applicable theory Competency and ethics

Competency and ethics

The ETHICS RULE of USPAP includes three sections. Which of the following is one of them? Jurisdictional Exception Competency Scope of Work Conduct

Conduct Chapter One - USPAP Ethics Rule - The ETHICS RULE is divided into four sections: Conduct, Management, Confidentiality, and Record Keeping.

Which of the following would be considered to have a negative impact on the appraiser's appearance in court? Varied format Constant self-references Conversational language Use of analogies

Constant self-references

A _______________ is an appraiser who is retained to help counsel understand the appraisal issues and formulate trial strategy. Tenured professional Testimonial provider Consulting expert Cooperating witness

Consulting expert

The course material presented a table with the parties in Direct Examination and their goals. Which of the following is NOT one of the goals stated for the appraisal expert? Convince the jury that his or her position is correct Avoid volunteering unnecessary information Educate the jury as to why the expert's opinion is correct and reasonable Maintain a calm and polite demeanor

Convince the jury that his or her position is correct Chapter Eight - Direct Examination - The table gave the goal of convincing the jury that his or her position is correct as the goal of employing attorney. The other three are listed as goals of the appraisal expert. The appraiser is not to be an advocate for the client's case, but to present an unbiased presentation of his or her analysis and conclusions.

An appraiser uses a definition of market value that was from an inappropriate source. Which of the following four problem areas would most likely cause his appraisal to be ruled inadmissible? Correct definitions Insufficient data Applicable theory Competency and ethics

Correct definitions

In trial "legalese", the term "CV" refers to which of the following? Curriculum Vitae Critical Veracity Commitas Vitalis Comparable Verification

Curriculum Vitae

___________ is the process by which a party to a lawsuit can find out information held by another party to a lawsuit or third-party witnesses or entities. Discovery Recovery Reconnaissance Interrogation

Discovery

You are appraising a hotel for litigation purposes. In your Income Approach, you frequently include footnotes referencing the book titled Hotels & Motels: Valuations and Market Studies. You are doing this to protect your appraisal from being ruled inadmissible due to: Violation of USPAP Incomplete report Daubert challenge None of the above

Daubert challenge Chapter One - Introduction - One way that the appraiser can "bulletproof" the appraisal report is to provide citations to authorities such as these and other specialty property authorities in the report. Later in the course, we present the concept of the Daubert challenge. Including citations to accepted authorities will go a long way to protecting the appraiser from a successful Daubert challenge which could rule the appraiser's report and testimony inadmissible (a catastrophe for the client).

"That evidence addressed directly to the senses without intervention of testimony. Such evidence is concerned with real objects which illustrate some verbal testimony and has no probative value in itself." This is the official definition of what kind of exhibit as discussed in this course? Demonstrative Exhibits Illustrative Exhibits Tangible Objects Learned Treatises

Demonstrative Exhibits Chapter Seven - Preparation for Trial - Demonstrative exhibits are those which depict a specific object or thing. They are not the thing itself, but a representation of the item that is in issue. Typical exhibits are photographs, artistic renditions, and to-scale models. i) Demonstrative evidence. That evidence addressed directly to the senses without intervention of testimony. Such evidence is concerned with real objects which illustrate some verbal testimony and has no probative value in itself. [Black's Law Dictionary]

As far as the appraiser is concerned, which of the following is considered the most important part of Discovery? Interrogatories Deposition Placement on Witness List Deadline for Discovery

Deposition

When two appraisals are prepared for the same litigation, one for each of the litigants, there often is a disagreement between the two appraisal conclusions. Which of the following choices is most frequently the reason for the differences? Different comparables Different levels of competency Different theories for solving the appraisal problem Different levels of ethics and integrity

Different theories for solving the appraisal problem

The expert should assume that all communications with the litigant or retaining counsel may be subject to disclosure through: Deposition Discovery Disposition Subpoena

Discovery

The pre-trial process that involves gathering documents and information about the opposition's case in litigation is referred to as: Discovery Deposition Interrogatory Research

Discovery

Which of the items below best explains "reverse advocacy"? Changing the testimony given in court from testimony made in the deposition Refusing to favor one side or the other in reaching conclusions in the appraisal Giving the benefit of the doubt to the opposing party in litigation to give the impression of "seeming fair" Reversing an opinion stated in testimony when challenged during cross examination

Giving the benefit of the doubt to the opposing party in litigation to give the impression of "seeming fair"

You have been asked to appraise an office building for litigation. The building was constructed two years ago but is still vacant. Retaining counsel instructs you to use only the income approach and provides lease proposals from interested tenants. If all the tenants who have submitted proposals were to sign leases, the building would be 100% full. Which is your best course of action in this assignment? You perform the appraisal using only the income approach You reject the assignment as not permitting the development of a credible appraisal You accept the assignment but use the cost and sales comparison approaches in addition to the income approach Either b or c

Either b or c

The ______________ date is crucial for the appraiser expert witness to know because missing it could result in the appraisal report being ruled inadmissible. Trial End of discovery Deposition Formal complaint filing

End of discovery Chapter 2 - page 8 - Discovery Ends. At this point, no further requests for information from the opposition are permitted. The appraiser needs to be very aware of this date because the appraisal report to be used in trial must be delivered to the opposition by this date. If the appraiser does not have his appraisal report ready by this date, the judge may rule that it is not admissible as evidence in court.

Which of the following is the purpose of the Federal Rules of Civil Procedure? Establish rules regarding the admission and use of evidence in a Federal trial. Establish rules governing the conduct of civil actions in a Federal court. Ensure that parties in a trial behave in a civil manner rather than becoming hostile during the trial. Distinguish between the procedures in a civil court and a criminal court.

Establish rules governing the conduct of civil actions in a Federal court.

The appraisal report becomes ____________ in the trial. Proof Irrelevant Evidence Hearsay

Evidence

A witness whose testimony is based on scientific, technical, or other specialized knowledge is called a/an: Opinion witness Expert witness Appraisal witness Fact witness

Expert witness

According to some authorities, marketing the expert witness practice could have the following results: Having laypeople call you for legal advice Wasting money and effort and producing few results Exposing the expert to attack on cross examination for being a "hired gun" All of these are correct

Exposing the expert to attack on cross examination for being a "hired gun" Chapter Nine - Introduction to Marketing - Your first consideration in marketing your services as an expert witness should be how your marketing efforts may compromise your testimony under cross examination. As discussed earlier in this course, one area in which an expert is often attacked under cross examination is how the witness markets himself or herself for forensic expert assignments. Therefore, the marketing process must be executed without compromising the integrity, credibility, professionalism, or reputation of the expert. As Steven Babitsky states, "A legitimate concern about marketing activities is how these will play to the juries, potential clients, and colleagues."

Which of the following is "probably the most frequently encountered 'quicksand' that an appraiser expert witness will encounter during testimony"? Getting in a heated argument with opposing counsel on cross examination Forgetting important parts of the analysis of the appraisal Expressing an opinion about the appraisal prepared for the opposition Being accused of misrepresenting the credentials on the appraiser's Curriculum Vitae

Expressing an opinion about the appraisal prepared for the opposition Chapter Three - Relevant USPAP Provisions - Review or Commentary on Another Appraisal: This is probably the most frequently encountered "quicksand" that the appraiser expert witness will encounter during testimony. It also may be encountered in conferences with retaining counsel during pre-trial preparation, such as depositions.

A _________ witness appears to be understood as one who testifies only to that of which he or she has firsthand knowledge and who describes only facts (as opposed to expressing opinions). Comprehensive Retainer Faulty Fact

Fact

On the witness stand, an appraiser should never answer any questions from opposing counsel regarding the fact that appraiser is being paid for his or her services. True False

False

Which court case addressed the use of a new polygraph test that established the principle that expert witness testimony must use technology which has been "sufficiently established to have gained general acceptance in the particular field in which it belongs"? Frye v. United States - 1923 Daubert v. Dow Pharmaceuticals - 1993 GE v. Joiner - 1997 Kumno Tire v. Carmichael - 1999

Frye v. United States - 1923

Which court case dealt with an on-the-job cancer claim and confirmed the principle that the trial judge is to serve as a gatekeeper of expert testimony and that the trial judge's decisions are not subject to appeal? Frye v. United States - 1923 Daubert v. Dow Pharmaceuticals - 1993 GE v. Joiner - 1997 Kumho Tire v. Carmichael - 1999

GE v. Joiner - 1997

Which of the following fee structures would be considered unethical for any expert witness? Hourly fee of $350 per hour for all billable time Flat fee of $45,000 for all research, reports and testimony Flat fee of $10,000 plus a $5,000 bonus if retaining counsel wins the case Fee of $4,000 for the report and $300 per hour for testimony time

Flat fee of $10,000 plus a $5,000 bonus if retaining counsel wins the case

In the court case that dealt with the qualified conservation contribution, charitable contribution of the historic facade easement on a New Orleans hotel, the court: Found that USPAP violations do not automatically exclude the testimony. Ruled that USPAP violations automatically exclude the testimony. Could not find a USPAP violation of substance. None of the above.

Found that USPAP violations do not automatically exclude the testimony.

In qualifying as an expert, the witness must satisfy the judge that he or she has the required knowledge, skill, experience, training, and education. The function of the judge to admit or deny the witness' right to express opinions as an expert is called: Judge advocate Gatekeeper Jury filtration process Voir Dire

Gatekeeper Chapter Eight - Direct Examination - Gatekeeper. The role of the judge, as defined by the Supreme Court in Daubert v Dow Pharmaceutical, is to determine whether a witness is qualified, based on knowledge, skill, experience, training, and education, to provide technical, scientific, or other specialized testimony that will be relevant and reliable in court.

Which of the following principles was not discussed as an issue regarding the selection and use of comparable sales in an appraisal intended for litigation? The testifying appraiser should personally verify all sales The comparables used should be able to survive a challenge over admissibility Geographic proximity of comparables is the primary criterion to use Offers to purchase the subject which did not close may be usable

Geographic proximity of comparables is the primary criterion to use Chapter Six - Contents of the Written Report - Verification of Sales. It is important for the appraiser who will testify to personally verify all sales used in the appraisal. . . . Admissibility of Comps. One of the ways opposing counsel will challenge an appraisal is on the admissibility of one or more of the comparable properties used in the appraisal. . . . The complexity of this issue can be seen in the article titled: "Once Upon an Offer: Use of Unaccepted Offers to Purchase Real Estate As Evidence of Valuation in Condemnation Proceedings", by Richard Duvall and David Black. Geographic proximity was not discussed as a criterion for comparables used in a litigation report.

You receive a subpoena asking that you produce all appraisal reports you have prepared in the past five years for property similar to the subject property in a current litigation. You know that to honor this subpoena, you will be revealing confidential information from past assignments. What is the most likely action you would take to avoid revealing this confidential information? Invoke the RECORDKEEPING RULE in USPAP Ask the opposing attorney file a motion to quash Have your personal attorney file a motion to quash Produce the appraisals, as a subpoena is the same as a court order

Have your personal attorney file a motion to quash Chapter Two - Fact Witness versus Expert Witness - The appraiser's only defense is a motion to quash. The attorney employing the appraiser does not represent the appraiser, but may file the protective motion with the court. Often an appraiser must employ an attorney to bring the motion.

You are testifying in court. The opposing counsel is especially hard on you and returns to the same question numerous times to see if you will change your answer. One of the more probable reasons he is doing this is: He is a jerk He does not believe your answers He is testing you because he may want to use you in the future None of the above

He is testing you because he may want to use you in the future Chapter Nine - Where do Attorneys Look for Experts - Not surprisingly, if an appraiser does a good job on the witness stand in one case, the attorney who cross examined him or her may want to hire him or her for another case later on. If you held up well under his "attack," he would have confidence in having you testify on behalf of his clients.

When should an appraiser determine if he or she can perform the assignment competently? Within a month of agreeing to perform an assignment Prior to agreeing to perform an assignment During the first week of an assignment Upon completing the assignment

Prior to agreeing to perform an assignment

The course materials discussed both positive and negative aspects of the appearance and demeanor of the appraiser while testifying. Which of the following would be considered to have a negative impact on the appraiser's appearance in court? Business attire Hesitation Conversational language Concise organization

Hesitation

Which of the following four items is NOT an ethics violation in the Conduct section of the USPAP ETHICS RULE? Bias Hypothetical condition Advocacy Misleading communications

Hypothetical condition

Which of the following terms does the instructor highly recommend not be used in an appraisal intended for use in litigation? Aggressive Speculation Neutrality Domination

Speculation

You are appraising a property that is zoned industrial. Retaining counsel instructed you to appraise it as though it were zoned residential. Your investigation indicates that rezoning is a reasonable expectation, so you decide to accept retaining counsel's instruction. To do so, you would need to invoke a/an: Hypothetical condition Extraordinary assumption Both a hypothetical condition and an extraordinary assumption Neither is required because the rezoning is highly probable

Hypothetical condition Chapter Three - Relevant USPAP Provisions - "HYPOTHETICAL CONDITION: that which is contrary to what exists but is supposed for the purpose of analysis. Comment: Hypothetical conditions assume conditions contrary to known facts about physical, legal, or economic characteristics of the subject property; or about conditions external to the property, such as market conditions or trends; or about the integrity of data used in an analysis." Since you know the zoning is industrial, to assume it is residentially zoned is to assume a fact known to be false. If you were unable to determine the zoning, the extraordinary assumption would be the appropriate choice.

According to the introductory paragraphs of this module, what is a major difference between preparing an appraisal report for litigation and one for a lender? Litigation appraisal pays the appraiser a higher fee The time required to produce the report is shorter; deadlines are more important for the litigation appraisal In litigation, there is someone who is "out to get you" Both parties in litigation can come out winners

In litigation, there is someone who is "out to get you"

Which of the following is NOT one of the four parts of the Daubert tests for expert witness testimony? Included in the Uniform Standards of Professional Appraisal Practice Peer-reviewed or published in technical/professional publications Statistical rate of error of methodology is known or predictable Generally accepted methodology within the scientific or technical discipline

Included in the Uniform Standards of Professional Appraisal Practice

A list of suggested content for the CV is presented in the course materials. Which of the list below is NOT part of the suggested content for the CV? Leadership positions held Income level and tax bracket Speaking engagements Professional education

Income level and tax bracket

Which of the four sources listed below is most likely the first place an attorney needing an expert will look for one? Referrals from other attorneys Professional directories Internal database of the law firm Referral agencies

Internal database of the law firm

"A set or series of written questions drawn up for the purpose of being propounded to a party, witness, or other person having information of interest in the case." This is the definition of: Deposition Discovery Investigations Interrogatories

Interrogatories

Which of the following terms best describes the written questions prepared for opposing sides in litigation that must be answered in writing and under oath? Deposition Discovery Interrogatories Disposition

Interrogatories

You have been asked to appraise an apartment building for litigation, but the property owner is hostile to retaining counsel's client. In order to gain the information necessary to complete your appraisal, which of the following tools would you most likely utilize? Interrogatories submitted through retaining counsel Private investigator hired by retaining counsel Aerial photographs of the subject from Google Interviews with tenants as they come and go from the apartment complex

Interrogatories submitted through retaining counsel

When an objection is made by one of the attorneys during your testimony on the witness stand in court, what is the first thing you should do? Stop speaking immediately Listen to the arguments about the objection and make a ruling Answer the question quickly before the judge stops you Wait for the opposing attorney to rule on the objection

Stop speaking immediately

Staging the assignment has two benefits brought out by the course materials. Which of the following statements is (are) NOT a referenced benefit(s)? It allows the appraiser to adjust the fee structure for the second stage, after understanding the assignment better, having completed the first stage. It permits counsel to know whether your opinion will be helpful before he or she has to disclose you and your work to opposing counsel. It is more cost-effective to pay for work performed to that point rather than to pay for an entire written report which may or may not be useful. Both a and c

It allows the appraiser to adjust the fee structure for the second stage, after understanding the assignment better, having completed the first stage. Chapter Five - Handling a Prospective Assignment - 1. Staging the Assignment. As mentioned earlier, it is often wise in a litigation support assignment to stage the assignment so that the initial research and analysis is performed with a preliminary report delivered to retaining counsel, probably in an oral form, before proceeding to a written appraisal report. This will give retaining counsel the ability to decide whether your opinion will be of benefit to his or her case before having you proceed with the full written appraisal report. This has two benefits to retaining counsel: (a) it permits him or her to know whether your opinion will be helpful to his or her case before he or she has to disclose you and your work to the opposing counsel; and (b) it is more cost-effective to pay for work performed to that point rather than pay for an entire written report which may or may not be useful.

You are appraising a tract of undeveloped land for litigation. Retaining counsel instructs you to use a Discounted Cash Flow analysis in your valuation. Are you permitted to follow retaining counsel's instructions? No. An attorney does not have sufficient authority to instruct you to deviate from USPAP under a Jurisdictional Exception. No. Use of a Discounted Cash Flow Analysis is never appropriate for vacant land. Yes. Retaining counsel's instructions give you the authority to deviate from USPAP and use an unusual method. It depends. If the methodology is within acceptable methodologies, you can follow instructions, because USPAP does not require specific methodologies.

It depends. If the methodology is within acceptable methodologies, you can follow instructions, because USPAP does not require specific methodologies.

The USPAP ETHICS RULE - Management - indicates that "An appraiser must disclose that he or she paid a fee commission, or gave a thing of value in connection with the procurement of an assignment." How does this apply to an appraiser listing on an online directory of expert witnesses to obtain assignments? It is the same as paying to be included on a lender's appraiser panel. There is no direct application to the appraiser paying for a listing in an online directory. If the fee exceeds $25 for the listing, the fee paid must be reported in any assignment coming from that directory. It is uncertain - the Appraisal Foundation has not issued an answer to this question yet.

It is uncertain - the Appraisal Foundation has not issued an answer to this question yet.

Which of the following items is NOT subject to Discovery by the opposition in litigation? Appraiser's workfile Appraiser's license disciplinary history Lawyer's work product Lawyer's conversations with testifying expert

Lawyer's work product Chapter Seven - Discovery - "It needs to be noted again that the appraiser's workfile is also subject to discovery. Therefore, the appraiser should not include anything in the workfile that the appraiser or retaining counsel would not want to be discovered that is not necessary to support the appraisal and its analyses. [Discovery] could also involve information about the appraiser's personal background, including any criminal investigations or licensing disciplinary actions. Any information considered part of the lawyer's work product is considered confidential and not subject to Discovery."

Which of the lists below contains the complete list of items the gatekeeper/judge can use to decide whether to admit a witness as an expert? Knowledge, skill, experience, training, education Designations, college degrees, memberships, experience Skill, experience, designations, education Knowledge, experience, training, education, credentials

Knowledge, skill, experience, training, education Chapter Eight - Direct Examination - Glossary - Gatekeeper. The role of the judge, as defined by the Supreme Court in Daubert v Dow Pharmaceutical, of determining whether a witness is qualified, based on knowledge, skill, experience, training, and education, to provide technical, scientific, or other specialized testimony that will be relevant and reliable in court.

An engagement letter for a litigation assignment contains the following items. Which of these would NOT typically be included in an engagement letter for a more typical assignment such as a mortgage loan appraisal? List of needed documents Known discovery and trial dates Definition of value Property interest to be appraised

Known discovery and trial dates Chapter Five - The Engagement Letter - A mortgage loan appraisal assignment would not need to know the discovery or trial dates. The other three items would typically be required and should be included in the engagement letter.

Which is the court case dealing with expert witness testimony outside of the "scientific" disciplines that affirmed that the rules for the gatekeeper to use to include or exclude expert witness testimony should apply to all experts who base their testimony on "scientific, technical, or other specialized knowledge"? Frye v. United States - 1923 Daubert v. Dow Pharmaceuticals - 1993 GE v. Joiner - 1997 Kumho Tire v. Carmichael - 1999

Kumho Tire v. Carmichael - 1999

The basic principle of answering questions in a deposition is: Less is better than more Take the opportunity to teach opposing counsel Wait for objections from retaining counsel before answering questions Be sure to defend your appraisal if challenged

Less is better than more

When considering the extent of the information to be included in the appraisal report for litigation, which principle is stressed by the course material? Less is better than more More is better than less Size is less important than substance Each conclusion should have explicit support

Less is better than more

What percentage of civil lawsuits, where a complaint is filed with the court, actually get to trial? 92% More than 80% Less than 20% 8%

Less than 20%

According to the article authored by Jim McElhaney, the attorney looking for an expert witness should look for someone who: Has a likeable personality Exhibits strong persuasive skills Loves to explain things to other people Possesses excellent technical skills

Loves to explain things to other people Chapter One - Role of the Witness - "Credibility is at the heart of every case. And the teacher is a fundamental symbol of credibility in our society. So look for someone who loves to explain things to other people, who feels natural with a piece of chalk in hand, who enjoys showing others how things work."

You are being deposed. The attorney interrogating you asks a number of questions. Which of the following questions would you be able to refuse to answer without risking discipline from the Court? What traffic tickets have you received since you were 18 years old? How many other appraisals on similar property have you completed in the last 10 years? What was the lowest grade you received in college for a business related course? None of the above; you would be required to answer each of them.

None of the above; you would be required to answer each of them.

"Magic words" in a litigation appraisal report are words that: Create excitement and interest for the reader May determine whether the conclusions are admissible Have dual meaning and can provide flexibility in interpretation Create smooth transitions in the narrative

May determine whether the conclusions are admissible

The reference to "legally sufficient" regarding the content of an appraisal in litigation has to do primarily with which of the following? Methodology Terminology Format Comparability

Methodology

When preparing to give testimony in a Federal court, which of the following is a requirement which would apply to the appraiser serving as an expert witness in the case? Must be 18 years old to testify as an expert Must be independently retained by the court rather than by one of the parties Must have been summoned to testify by a subpoena from one of the litigants Must have previously submitted a written expert report to the court

Must have previously submitted a written expert report to the court Chapter Six - page 2 - Preliminary Considerations - It should be remembered, however, that the Federal rules require that the written report be prepared before providing testimony in a deposition or trial. Many state courts have the same requirement, and USPAP requires that the workfile be complete before providing any oral testimony.

You have delivered an appraisal report prepared for a government agency. The agency has instructed you to provide the appraisal report to other government agencies. Does this instruction create a Jurisdictional Exception to the Confidentiality section of the ETHICS RULE? No. You would need to refuse the request under any condition. No. The agency is your client and can instruct you to deliver the report to anyone it wishes. Yes. The official policy of the government agency would give you a basis for a Jurisdictional Exception. Yes. But you would still need to obtain your client's permission in writing before releasing the appraisal report.

No. The agency is your client and can instruct you to deliver the report to anyone it wishes.

You receive a call from an attorney involved in litigation where appraisals have already been produced by each side. The attorney wants you to review both appraisals and advise him regarding their relative merits so he can develop a trial strategy. You will be preparing a USPAP STANDARDS 3 and 4 review of each appraisal as the major part of your assignment. Which of the three types of appraisal assignments would this be? Non-Practitioner - Unintentional Non-Practitioner - Intentional Practitioner - Intentional Practitioner - Unintentional

Non-Practitioner - Intentional Chapter Two - Three Types of Experts - A Non-Practitioner - Intentional assignment is where litigation is in progress and the appraiser is retained to critique the appraisals being used or provide appraisal review reports and testimony evaluating the appraisals for the court.

"The appraiser who testifies at this level usually will have significant experience in court testimony and can be perceived as a 'hired gun.' " This statement describes one of the disadvantages of the _________ type of appraisal assignment. Practitioner - Unintentional Practitioner - Intentional Non-Practitioner - Intentional Non-Practitioner - Unintentional

Non-Practitioner - Intentional Chapter Two - Three Types of Experts - A Non-Practitioner - Intentional assignment is where litigation is in progress and the appraiser is retained to critique the appraisals being used or provide appraisal review reports and testimony evaluating the appraisals for the court. Disadvantage: The appraiser who testifies at this level usually will have significant experience in court testimony and can be perceived as a "hired gun." This could damage credibility, as the "hired gun" is often perceived as providing testimony supporting the side that pays the higher fee.

The definition of a "litigant" is: The lawyer representing the plaintiff The lawyer representing the defendant A person who is prone to suing others None of the above

None of the above

How many signatures should there be in the report? Two One None Three

One

You are reviewing an appraisal in litigation. The report date is two years ago, with an effective date a few weeks earlier. In your review activity, you discover three very comparable sales near the subject not mentioned in the report. One closed two months before the report date; one closed one month after the report date; and the other closed nine months after the report date. Which of these sales could you use to claim a deficiency in the appraisal under review? All three can and should be used. Only the first, as it was public knowledge as of the report date. The first and second, because they both reflect the current market. None of the above; the appraisal had sufficient support without these sales.

Only the first, as it was public knowledge as of the report date.

According to the definition of a "Lay Witness" in Federal Rule 701, which of the following is NOT a criterion for an acceptable opinion expressed by the witness? Opinion not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 Opinion helpful to a clear understanding of the witness' testimony or the determination of a fact in issue Opinion developed through the use of a scientific instrument Rational opinion based on the witness' perception

Opinion developed through the use of a scientific instrument Chapter Two - Fact Witness versus Expert Witness - Rule 701. Opinion Testimony by Lay Witnesses. If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences 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.

When testifying in a deposition, who is required to pay the witness fees to the expert witness? Opposing counsel who is calling the witness for testimony Retaining counsel who hired the witness for the case The court will split the fee between the two litigants It is a negotiated issue not set by the Rules

Opposing counsel who is calling the witness for testimony Chapter Nine - Setting Your Fee Structure - When testifying in a deposition, the party seeking discovery in either deposition or other discovery methods must pay "fees and expenses [the witness] reasonably incurred in obtaining the expert's facts and opinions." [RULE 26(b)(4)(C)(ii)]. That means that opposing counsel will be responsible for paying the expert witness fee. Because of the adversarial environment, it is advisable to require payment of the anticipated deposition fees before the beginning of the deposition from the opposing counsel.

In the article "Preparing for Expert Testimony", Richard Hoffman, MAI, presents a five-step approach to preparing to testify in litigation. Which of the following is NOT one of his five steps? Fine Tune the Appraisal Work with the Attorney as a Team Inspect the Courtroom in Advance Prepare a STANDARDS 3 and 4 Appraisal Review of the opposing appraisal

Prepare a STANDARDS 3 and 4 Appraisal Review of the opposing appraisal Chapter Seven - Preparation for Trial - Referenced article - The five steps outlined in the article are 1) Fine tune the appraisal; 2) Work with the attorney as a team; 3) Prepare the client; 4) Inspect the courtroom; and 5) Testify. The article discusses the role of a STANDARDS 3 and 4 appraisal review but that is not encompassed within the other steps.

What should be the primary means of communication between the appraiser expert and retaining counsel? Oral Email Written letters Oral unless instructed otherwise by counsel

Oral unless instructed otherwise by counsel Chapter Five - Handling a Prospective Assignment - Oral Communications Unless Otherwise Instructed. According to Steven Babitsky, "All communications with counsel should be oral unless the expert is asked specifically by his retaining attorney to create a written document." The reason for this is: unless the appraiser is strictly a consulting expert (non-testifying), all written documents in the appraiser's file are subject to discovery. Thus, if notes were taken and kept in the file, or emails used to gather information or guidance from retaining counsel, all of these will be available to opposing counsel in the discovery process. Thus, before putting anything in writing, the appraiser expert should consult with retaining counsel orally and follow counsel's instruction.

Which attorney represents the appraiser expert witness? Retaining counsel Opposing counsel Personal counsel They all represent the appraiser in one way or another

Personal counsel

In litigation, unless specifically instructed by retaining counsel, which of the following would be the most desirable method of communicating with retaining counsel? Email Formal letters through USPS Phone conversations All are equally desirable

Phone conversations

"The appraiser has the benefit of knowing the issues and can focus the appraisal to address them and adequately support all the necessary analyses and conclusions to 'bulletproof' the appraisal." This statement describes one of the advantages of the _________ type of appraisal assignment. Practitioner - Unintentional Practitioner - Intentional Non-Practitioner - Intentional Non-Practitioner - Unintentional

Practitioner - Intentional

You receive a call from an attorney who is contemplating a new lawsuit regarding a landlord/tenant dispute where the lease contains an ambiguous purchase option for the subject property. You will need to determine the value to be used in the exercise of the purchase option. The tenant already has an appraisal with an abnormally low value. Which of the three types of appraisal assignments would this be? Practitioner - Unintentional Practitioner - Intentional Non-Practitioner - Intentional Non-Practitioner - Unintentional

Practitioner - Intentional Chapter Two - Three Types of Experts - Practitioner - Intentional is the most typical situation where litigation is involved. The appraiser is retained by counsel with anticipation of involvement by the court.

Two years ago, you prepared an appraisal of property owned by a husband and wife. The couple has decided to get a divorce, and the attorney representing the husband wants you to testify about your previous appraisal. Which of the three types of appraisal assignments would this be? Practitioner - Unintentional Practitioner - Intentional Non-Practitioner - Intentional Non-Practitioner - Unintentional

Practitioner - Unintentional Chapter Two - Three Types of Experts - An appraiser often prepares an appraisal report with no intention of it being involved in litigation. After the assignment is finished, sometimes even years later, the appraised property becomes the subject of a dispute that ends up in court.

An appraiser must promote and preserve the public trust inherent in appraisal practice by observing the highest standards of ________________. Public considerations Religious values Morality Professional ethics

Professional ethics

What is another term for Curriculum Vitae? Course syllabus Website Formal charging document Professional resume

Professional resume

"One way to protect confidential information, and other information that the appraiser may not want disclosed, personal or professional, would be to request a protective order from the court." This describes: Contempt of court Protective order Duces Tecum Solicitation for Support

Protective order

In the questioning under Direct Examination, which of the following topics of questioning will occur first in the typical sequence of questions? Acceptance as Expert Expression of opinions Basis of opinions Qualifications

Qualifications

Which of the following questions of the appraiser expert witness during testimony may be most valuable for the case? Direct examination Cross examination Questions from the judge They are all equal

Questions from the judge Chapter Two - Timeline of an Expert Witness Assignment - Questions from the Judge. The judge may, in fact, have more questions, and more probing questions, than the attorneys. The appraiser should take this opportunity to continue educating the judge. The judge's questions may be the most important ones in the case. Carefully considered answers could make a significant difference in the court's final decision.

What is considered the most dangerous trap which can be set for the appraiser expert witness under cross examination? Questions about condition of the subject property Questions involving a hypothetical condition Questions about comparable sales verification Questions about appraiser's qualifications and competence

Questions involving a hypothetical condition

One of the qualifications for determining whether a trial judge can permit an expert witness's testimony is: Test of truth Relevance to the issue Standard of care Hearing of fact

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

Which of the following does the course material suggest the appraiser do before appearing to testify to reduce the appearance of bias in his testimony? Request that a subpoena be issued requiring his testimony Sit with retaining counsel in the trial before testifying Include a disclaimer in the appraisal report indicating that there is no "client" for the assignment, thus the report is neutral regarding the litigation Identify the "intended user" as the jury in the case rather than retaining counsel

Request that a subpoena be issued requiring his testimony

Which of the following is NOT one of the three parts of the foundation for the expert witness, as described in this course? Appraisal expertise Researching expertise USPAP expertise Legal knowledge

Researching expertise

According to the course content, who should be considered the "client" in a litigation assignment? Property owner Litigant Retaining Counsel It does not matter

Retaining Counsel

You have been asked to provide an appraisal for use in litigation, but the attorney did not specify the definition of value you were to use, so you used the standard market definition from FIRREA used for mortgage underwriting appraisals. While you are testifying in court, the opposing attorney points out that the state statutes require that a different definition of market value be used. He tells the judge your appraisal should be excluded because it does not conform to the state statutes. Which statement below is FALSE? Retaining counsel is responsible for the error, so it is not your fault. Using the wrong definition could be a fatal error to the report. The appraisal may be excluded if the judge believes the error was significant. The weight attributed to the evidence of your appraisal might be reduced.

Retaining counsel is responsible for the error, so it is not your fault.

Under cross examination, an appraiser expert witness makes the following statement: "I gave the property owner the benefit of the doubt." This would be an example of: Sound reasoning Reverse advocacy An unbiased opinion Proper procedure when retained by the government

Reverse advocacy

You are preparing an appraisal on vacant land. Rather than using the traditional method of a matched pair analysis for your adjustments, you decide to use a new method called linear regression analysis, which you learned last month in an appraisal continuing education seminar. Your appraisal will probably be: Ruled admissible without a problem Ruled inadmissible for using a methodology that does not pass the Daubert challenges Ruled admissible if the gatekeeper accepts the recent court decisions about the new linear regression analysis methodology Ruled inadmissible because the court did not give prior approval to using the newer methodology before you completed your report

Ruled admissible if the gatekeeper accepts the recent court decisions about the new linear regression analysis methodology

Items to be included on the CV to convince attorneys of the ability of the expert to communicate would include which of the following? Listing of the college degrees Work history, with details of job descriptions Speaking engagements not related to real estate None of the above would serve the purpose

Speaking engagements not related to real estate Chapter Nine - How to Present Yourself - It would be wise to include any teaching or public speaking experience, even if it is not directly related to real estate. This would let the reader know that you have developed good communication skills.

There are two key concepts which the appraiser providing litigation support services should always keep in mind. These two concepts are: Support and qualify Quality and integrity Ethics and demeanor Discovery and deposition

Support and qualify Chapter One - Introduction - In the course, the student will find two key concepts emphasized repeatedly. These two concepts are especially important when involved in a litigation support assignment. The student is advised to keep these two concepts in mind as the various modules in the course are presented.Support. In delivering an appraisal report, whether oral or written, the appraiser must always be able to provide good support for the conclusions. Qualify. This second concept has to do with oral responses to questions in a deposition or trial environment... The appraiser should keep in mind the necessity of adding limiting qualifications to answers when being interrogated to avoid being locked into a position to which the opposition may be able to find an exception.

Which of the following lists is the typical sequence of events in a deposition? Identify the witness, Swearing in, Qualifications, Appraisal substance Swearing in, Identify the witness, Appraisal substance, Qualifications Identify the witness, Swearing in, Appraisal substance, Qualifications Swearing in, Identify the witness, Qualifications, Appraisal substance

Swearing in, Identify the witness, Qualifications, Appraisal substance Chapter Seven - Deposition - The proper sequence outlined in the course is the swearing in of the witness putting the appraiser under oath. This is followed by the appraiser identifying himself for the record, questions about the appraiser's qualifications to testify, then the discussion of the substance of the appraiser's report.

Which of the following is NOT a type of exhibit to be used during trial testimony as discussed in the course material? Demonstrative Exhibits Illustrative Exhibits Tangible Objects Tactile Exhibits

Tactile Exhibits

The primary role of the expert witness when testifying in court is described by Lubet as: Technician Diplomat Teacher Advocate

Teacher Chapter One - Role of the Witness - "For the expert witness, credibility is everything. No matter how well developed the opinion, how rigorous the preparation, how unfailingly accurate the work, it may all go for naught if the expert cannot credibly explain her opinion... Teachers no doubt provide the best models for expert witnesses."

The course indicates that there are at least six attributes that attorneys look for in an expert witness. Which of the following is NOT one of these six attributes? Technical skills Qualifications Communication skills Availability

Technical skills Chapter Nine - What Attorneys Look For - Although there are many things which attorneys look for, and different attorneys will prioritize their expectations differently, the following six characteristics are often mentioned as highly desirable in their expert witnesses: Qualifications, communication skills, credibility, writing skills, availability, and likeability.

You are retained by an attorney to prepare an appraisal and explain your appraisal report and conclusions to the court on the witness stand. Which of the three types of witness discussed in the course materials does this require? Testifying Fact Witness Testifying Expert Appraiser Consulting Expert Appraiser None of the above

Testifying Expert Appraiser

Last year you prepared an appraisal of an office building. The owners are now involved in a partition dispute, and one of the attorneys calls you to testify about the appraisal you prepared. He indicates they are not disputing the value but need to put "into the record" the validity of the appraisal so the court can use it. Which of the three types of witness does this require? Testifying Fact Witness Testifying Expert Appraiser Consulting Expert Appraiser None of the above

Testifying Fact Witness Chapter Two - Glossary - [Fact] Witness. In general, one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness. One who is called to testify before a court . . . One who testifies to what he has seen, heard, or otherwise observed... [Black's Law Dictionary, 6th edition]

In the article titled, "Expert Testimony: Regression Analysis and Other Systematic Methodologies", the authors conclude, regarding the admissibility of methodology in an appraisal intended for litigation: That linear regression analysis can meet the tests of admissibility That matched pair analysis can meet the tests of admissibility That neither linear regression analysis nor matched pair analysis can meet admissibility tests That both linear regression analysis and matched pair analysis can meet admissibility tests

That both linear regression analysis and matched pair analysis can meet admissibility tests

You are serving as a consulting appraiser, helping an attorney with a case which involves defective construction on an apartment building. The attorney asks you to prepare an appraisal review of the opposition's appraisal report so she can find flaws to pursue. Can you fulfill this request? No. As an advocate you cannot also perform an appraisal service such as an appraisal review. Yes. An appraisal review does not fall under the appraisal services which would conflict with an advocacy assignment. Yes. There is no conflict with an advocate preparing an appraisal review report, oral or written, in the same assignment. That question is still unresolved, and you should consult your personal attorney.

That question is still unresolved, and you should consult your personal attorney. Chapter Two - Testifying versus Consulting Experts - The final resolution of this question is yet to be achieved. Hopefully, the Appraisal Foundation will issue a definitive answer soon. Until then, be advised that this is an unclear area and the appraiser may need to have the guidance of his or her own legal counsel.

Which of the following is (are) a reason(s) given for justifying a higher fee for litigation assignments? The appraiser is putting his or her license on the line by being an advocate. The appraisal will be reviewed in more detail so the opposition can find weaknesses. Fees for litigation assignments are hard to collect, so an appraiser has to charge higher fees to make up for uncollected fees. All of these.

The appraisal will be reviewed in more detail so the opposition can find weaknesses. Chapter Five - Compensations Structure - Special Considerations for Estimating Workload Required by Appraisal Assignment: (A) Work must be defensible and well-supported. (B) There should be a detailed record of each step in the valuation process. In addition, the appraisal will likely have a much more detailed review by the opposition trying to find weaknesses in the report.

It is recommended that an appraiser expert suggest to counsel that the assignment begin on a consulting basis and then move to a testifying expert later. Which of the following statements is the best explanation for why this is suggested? This is less expense for counsel as your testifying fees are higher than your simple consulting fees. The time it takes to provide the consulting services is not as extensive as it would be to do the same work on a testifying expert basis. The appraisal workfiles and any report could be considered the attorney's work product and thus be protected from discovery if counsel elects not to move to the testifying expert level. The consulting expert status has fewer responsibilities than the testifying expert.

The appraisal workfiles and any report could be considered the attorney's work product and thus be protected from discovery if counsel elects not to move to the testifying expert level.

Who is the one responsible for determining the scope of work in an appraisal performed for litigation? Retaining counsel The Judge The appraiser The property owner

The appraiser

The most important principle regarding the ethics of the appraiser expert is: The appraiser should not be concerned with who wins the case The appraiser needs to protect the confidentiality of retaining counsel's communications The appraiser should not speak to the judge ex parte The appraiser should not work for an attorney who is opposing a previous client in court

The appraiser should not be concerned with who wins the case

An appraiser is subpoenaed to testify about an appraisal he prepared in the past which now is part of pending litigation. He was not retained by the lawyers specifically to prepare the appraisal for this case because the litigation issue developed after his appraisal was completed. Which of the following best described this situation? The appraiser will be testifying as a fact witness and be able to collect a nominal witness fee for his time on the witness stand. The appraiser will be testifying as an expert witness and will be able to collect a handsome hourly fee for the time spent on the witness stand. The appraiser is not an expert for this case but can charge his normal expert witness hour fees for his time on the witness stand. The appraiser will be testifying as a fact witness and will not be able to charge for his time on the witness stand.

The appraiser will be testifying as a fact witness and be able to collect a nominal witness fee for his time on the witness stand. Chapter Two - Fact Witness versus Expert Witness - "An appraiser may be subpoenaed as a fact witness instead of as an expert witness... The appraiser is asked to testify as to what they appraised a property in the past, as opposed to their expert opinion on the valuation of property. The appraiser should ask the judge to have a side guarantee their pay for their time as an expert, but more and more judges are allowing the attorneys to call an appraiser as a fact witness with the minimal pay given the appraiser as a mere fact witness."

According to the article titled "The Court and the Expert Witness" included in the course materials, which of the following statements is true? The effectiveness of the appraiser's testimony frequently rests on his or her qualifications. The appraiser's testimony in court is not necessary if the report is well written. The appraiser is prohibited from assisting the lawyer in framing questions for cross-examination of the other appraiser. Courts always find the cost approach the most believable.

The effectiveness of the appraiser's testimony frequently rests on his or her qualifications.

Typically, the appraiser expert should try to mirror the type of clothing that who wears? The judge The general public The other witnesses The lawyers in the courtroom

The lawyers in the courtroom

A subpoena duces tecum requires: The appraiser to appear at a specific place at a specific date and time The production of documents identified in the subpoena The production of the attorney's work product The delivery of the appraiser's appraisal report to the court clerk

The production of documents identified in the subpoena

You have been retained to serve as a litigation consultant for a lawyer. You are helping him develop questions for cross-examination of the appraiser for the opposition. He asks that you prepare a USPAP compliant review of the appraisal performed for the opposition. Which of the following is the BEST response? You can accept the assignment, as there is no conflict. You must reject the request to prepare the review because there is a conflict. The question about whether developing cross examination questions is "advocacy" prohibiting the appraisal review is unresolved at this time. None of the above is correct.

The question about whether developing cross examination questions is "advocacy" prohibiting the appraisal review is unresolved at this time.

In considering different approaches to marketing your expert witness practice, you look at both referral agencies and expert witness directories. You discover that one of the differences between the two is: The referral services charge a fee to be listed The referral services take a share of your expert witness fees The referral services will generate more business for you All of these

The referral services take a share of your expert witness fees Chapter Nine - Where to Promote Your Availability - Referral Agencies. By contacting the referral agencies and witness "brokers", you may receive more assignments. However, you will need to accept a lower fee, as they will share the fee with you. They will also collect the fees for you. They do it on their schedule, not yours, so you may have to wait longer for payment. The difference between a referral agency and an expert witness directory is that the referral agency does not typically charge to include you, but they take a share of the fees when you take an assignment through them.

In the article "Expert Witness - Preparing Reports for Court", the author lists a number of reasons that appraisal reports are found inadmissible by the courts. Which one of the following is NOT among the list cited in the article? The report was not provided to the other side in sufficient time. The report failed to provide an adequate legal description of the subject. The appraiser has, in reaching an opinion, drawn conclusions of law. Report strays beyond the appraiser's stated area of expertise.

The report failed to provide an adequate legal description of the subject.

Most of the legalese used by attorneys is hard for appraisers to intuitively understand because: Attorneys want to keep other people out of their discipline. The terms originated while Latin was still the international language of commerce and law. The terms originated in Old English The terms originated in the time of Alexander the Great, who established Greek as the universal language of his time.

The terms originated while Latin was still the international language of commerce and law.

During cross examination, when opposing counsel asks, "How much are you being paid for your testimony in court today?", counsel wants to: Learn your fee schedule for competitive bidding on the next job Show the jury how wealthy you are, showing that you are not their "peer" Use your fees in an attempt to impeach your testimony Compare your fees to the fees he or she paid to his or her expert witness

Use your fees in an attempt to impeach your testimony

An appraiser can express his expert opinion in his appraisal report on many things. However, there is one opinion that the appraiser should never express in the appraisal report. What is that opinion? The ultimate issue of the trial The merits of the appraisal prepared for the opposition A USPAP compliant Standard 3 review opinion of his or her own appraisal The merits of the case as discussed with retaining counsel

The ultimate issue of the trial Chapter Six - Contents of the Written Report - As learned earlier, the expert witness can express opinions, but the one opinion that the appraiser is not permitted to express is that which the Trier of Fact is to determine - the ultimate issue of the case. For example, a medical expert in a criminal trial cannot say, "He is guilty." He can only express opinions about the evidence that points to guilt. It is the jury's task to express the final opinion that the defendant is guilty.

Federal Rules of Evidence Rule 612 deals with using written materials while on the witness stand. According to this Rule, which of the following statements is true? The witness is not permitted to have any written document with him on the witness stand. The witness may have handwritten notes to refresh his or her memory on the contents of the report while on the witness stand. Only documents which are previously entered as exhibits can be in the possession of a witness on the witness stand. None of the above is correct.

The witness may have handwritten notes to refresh his or her memory on the contents of the report while on the witness stand. Chapter Four - Federal Rules of Evidence - Rule 612 - Writing Used to Refresh Memory. This rule can be important for the appraiser expert witness because it indicates that any writing used to refresh one's memory, either before or during testimony, can be required to be produced for the court. It is wise for the appraiser to consult with retaining counsel about what information should be taken to the witness stand in light of this Rule.

Regarding the content of an appraisal report prepared for litigation, which of the following statements is true? The report must follow the outline detailed in Federal Rules of Civil Procedure, Rule 26. The report must follow the outline detailed in the Federal Rules of Evidence, Rule 702. The report must follow the prescribed outline in USPAP. There is no prescribed format or outline for an appraisal in any of the above three sets of regulations.

There is no prescribed format or outline for an appraisal in any of the above three sets of regulations.

As trial begins, the attorney for the defense asks the judge to invoke "THE RULE." What would be his/her motivation for this request? To ensure that the opposing attorney will not challenge his/her expert witnesses To ensure that witnesses are not influenced by the testimony of other witnesses To stipulate the qualifications of the expert witnesses, thereby eliminating the lengthy voir dire process To speed up the proceedings

To ensure that witnesses are not influenced by the testimony of other witnesses Chapter Two - Legal Terminology - The RULE. This is a reference to Federal Rules of Evidence Rule 615, which deals with exclusion of witnesses. Often, attorneys want to be sure that one witness is not influenced by statements made by other witnesses' testimony and will "invoke the rule" This means that witnesses are prohibited from being in the courtroom during testimony of other witnesses.

What is the purpose of the Federal Rules of Evidence? To establish the rules governing what evidence can be presented in a Federal trial. To establish the rules governing the conduct of civil actions in a Federal court. To ensure that parties in a trial don't try to introduce evidence that would be harmful to the opponents during the trial. To distinguish between the evidence admissible in a civil court and a criminal court.

To establish the rules governing what evidence can be presented in a Federal trial.

Less than 20% of lawsuits filed actually go to trial. True False

True

The Daubert v. Dow Pharmaceutical case was a groundbreaking case which has had a significant effect on the admission of expert testimony in the United States. True False

True

Under the Uniform Appraisal Standards for Federal Land Acquisitions (the "Yellow Book"), the appraiser who is testifying in court must have personally verified the sales. True False

True

When testifying in a courtroom, an appraiser should dress like the attorneys who are involved in the case. True False

True

Which of the following specifies a required format for the appraisal used in litigation when the appraisal is expected to comply with the correct standard? Uniform Standards of Professional Appraisal Practice Uniform Appraisal Standards for Federal Land Acquisitions Federal Rules of Civil Procedure Federal Rules of Evidence

Uniform Appraisal Standards for Federal Land Acquisitions

According to J.D. Eaton, when can an appraiser expert witness be an advocate? When representing the plaintiff When representing the defendant When defending his or her conclusions An appraiser can never serve as an advocate

When defending his or her conclusions Chapter One - Ethics Issues for all Experts - "Appraisers must take particular care to ensure that their analyses, opinions, and conclusions concerning real estate are arrived at without bias in favor of the client or the accommodation of their personal interests. But, after arriving at an unbiased analysis, opinion, or conclusion, the appraiser may defend or advocate the correctness of his or her value estimate."

You are purging your old files. You have an appraisal report that was prepared for litigation dated six years ago. The case was decided at District court three years ago. It was appealed, and the appeal is still pending. Your responsibility about keeping this workfile is: You can destroy it, as the report was issued more than five years ago You can destroy it, as the case was decided three years ago You will be able to destroy it as soon as final disposition occurs You must keep it for two years after final disposition

You must keep it for two years after final disposition

You have appraised a property for Attorney Smith, who represents the plaintiff in litigation for which your appraisal has been performed. You are then approached by Attorney Jones, the attorney representing the defendant in the same litigation. He wants you to prepare a new appraisal of the subject property for his side. Which of the following statements is FALSE? You could not accept the assignment, as you already have a client in the pending litigation. You would not be able to use any confidential information obtained from the first appraisal in the second appraisal. The confidential information learned in the first appraisal would need to be considered "not material" to arriving at a credible conclusion. The second client would need to be told about the first appraisal before you accepted the second assignment.

You could not accept the assignment, as you already have a client in the pending litigation.

Because over 90 percent of civil cases never get to trial, the presentation of the appraiser expert is often limited to the _______________. Oral presentation Written appraisal report The video testimonial The market analysis findings

Written appraisal report Because over 90 percent of civil cases never get to trial, the presentation of the appraiser expert is often limited to the written appraisal report.

Which of the following sources of instruction would NOT be a basis for the JURISDICTIONAL EXCEPTION RULE in an appraisal prepared for litigation? Statute passed by the state legislature Regulation approved by the FDIC Court order from a presiding judge at the trial Written instructions from retaining counsel

Written instructions from retaining counsel

Which of the following sources of instruction would NOT permit invoking the JURISDICTIONAL EXCEPTION RULE in an appraisal prepared for litigation? Statute passed by the state legislature Regulation approved by the FDIC Court order from a presiding judge at the trial Written instructions from retaining counsel

Written instructions from retaining counsel

Which of the following best defines Interrogatories? Direct examination questions by retaining counsel Cross examination questions by opposing counsel Additional questioning by the judge Written questions submitted by the opposition requiring written answers under oath during discovery

Written questions submitted by the opposition requiring written answers under oath during discovery

You have a request from counsel to "Let me know the value but don't write a report." Your response should be: You must refuse, as you cannot give just an oral report. You must refuse because you cannot give an oral report unless you have completed a written report first. You can comply because you need a complete workfile only before delivering an oral report. You can comply, but you need to follow it with at least a Restricted Use Report.

You can comply because you need a complete workfile only before delivering an oral report.

An attorney has contacted you for an expert witness assignment. She indicates that she needs you to appraise a property which has environmental contamination and is the subject of litigation. The attorney wants you to appraise the property and ignore the environmental contamination in your report. Based on Advisory Opinion 19, which response below would be FALSE? You could not accept the assignment. You could accept the assignment on the condition that you identified the environmental contamination and appraised the property using the hypothetical condition that the contamination did not exist. You would need to describe the condition as it exists and make it clear in the written and oral reports that the appraisal conclusions are not valid if the contamination exists, which it does. Full disclosure would need to be made to distinguish between what is real and what is "hypothetical."

You could not accept the assignment. Chapter Three - Advisory Opinions - These assignment conditions would not be acceptable. You could accept the assignment on the condition that you identify the environmental contamination and appraise the property using the hypothetical condition that the contamination does not exist. However, you would need to describe the condition as it exists and make it clear in the written and oral reports that the appraisal conclusions are not valid if the contamination exists, which it does. Therefore, the value conclusion is a theoretical value that the court may use to determine damages, but full disclosure would need to be made to distinguish between what is real and what is "hypothetical."

You are asked by retaining counsel to appraise a property for litigation using a hypothetical condition stating that the highest and best use is as a 100-room resort hotel. The property is more than 100 miles away from an interstate highway and 120 miles from the nearest population center of more than 10,000 persons. There are no recreational attractions in the area. The major economic activity used to be mining, but the mines closed over 30 years ago. Your response to this situation is: You invoke the JURISDICTIONAL EXCEPTION RULE and do the appraisal. You invoke a Hypothetical Condition and do the appraisal. You invoke an Extraordinary Assumption and do the appraisal. You decline the assignment, as you believe that the use of the required hypothetical condition would produce a result that is misleading.

You decline the assignment, as you believe that the use of the required hypothetical condition would produce a result that is misleading.

You are on the witness stand testifying about an appraisal you performed for this litigation. On cross examination, opposing counsel asks, "Do you think that the comparables you selected are superior to the comparables selected by my appraiser?" You answer, "Yes." This is an appropriate answer, as you can defend your appraisal report so you are not advocating for retaining counsel's client. This in an insufficient answer, as you will need to explain why your comparables are superior. You have just performed an oral appraisal review report on the other appraisal and must have previously prepared a separate workfile for that "assignment," must state the additional information required under STANDARD 3, and must place a signed certification in your workfile. You are not permitted to criticize another appraiser while on the witness stand.

You have just performed an oral appraisal review report on the other appraisal and must have previously prepared a separate workfile for that "assignment," must state the additional information required under STANDARD 3, and must place a signed certification in your workfile. Chapter Two - Appraisal Reviews for Litigation - While on the witness stand, if the testifying appraiser is asked to express an opinion of the appraisal prepared by the appraiser for the other side, and he or she has not already prepared a written review appraisal, the appraiser is actually being asked to perform a USPAP STANDARDS 3 and 4 appraisal review. If the appraiser expresses an opinion about the quality of another appraiser's work, then he or she has, by definition, delivered an oral appraisal review report. The appraiser must have previously prepared a workfile adequate to support that opinion, must provide all the required components of an appraisal review report as found in STANDARDS 3 and 4, and must place a signed certification in the workfile afterward.

Why is it recommended that the appraiser bring his or her own copy of his or her appraisal to the deposition? Opposing counsel may forget to bring his or her copy Opposing counsel may have the wrong copy Opposing counsel may misquote from your appraisal. You may be requested to verify that opposing counsel's copy is a complete and accurate copy of your report

You may be requested to verify that opposing counsel's copy is a complete and accurate copy of your report Chapter Seven - Deposition - It is important to have the "official" report that the appraiser issued.

In a litigation appraisal assignment, you are instructed by retaining counsel to omit the ownership and sale history of the subject because it would "confuse the issue" to know that the property had transferred four times in the previous three years. The attorney instructs you to invoke the JURISDICTIONAL EXCEPTION RULE to justify omitting this required part of the report. Which of the following is true? You have received legal instructions from an "officer of the court" and can invoke the JURISDICTIONAL EXCEPTION RULE. You need to search for the statute or regulation which requires the omission in this type of litigation and reference it in your report. You must petition the judge for a court order granting permission to omit this portion of the report. You should ask retaining counsel to provide the statute, regulation, or court order which would preclude the appraiser from complying with this part of USPAP.

You should ask retaining counsel to provide the statute, regulation, or court order which would preclude the appraiser from complying with this part of USPAP.

You are waiting to testify in a trial. When the court convenes and the judge asks for opening arguments by the attorneys, one of the attorneys stands and asks the judge to "invoke the Rule." This means that: You, as a witness to be called during trial, must leave the courtroom. The expert report you submitted is going to be challenged before opening arguments. You are going to be subject to a voir dire when it is your time to testify. You will be served with a subpoena duces tecum before you are permitted to take the stand.

You, as a witness to be called during trial, must leave the courtroom.

According to the downloaded article "When an Appraiser Takes the Stand," if you are working in a litigation support role and the case settles before it gets to trial, Your time has not been wasted You should collect only part of your fees You did not do an adequate job on the appraisal You should feel deprived by not getting to testify in trial

Your time has not been wasted