Friday , 22 November 2019

What to Expect When You Go to Court

Mike Rikon
Mike Rikon, Goldstein, Rikon, Rikon & Houghton, P.C

You, the appraiser, could be cross-examined in the future. Here is what to expect when you go to court as the expert. To begin, it will not be an easy or pleasant experience. An appraiser must personally verify the information and personally inspect and photograph every comparable. Although real estate reporting services are helpful, an appraiser should not rely on a service without verification. The appraiser should confirm all of the details of the transaction directly with parties to the transaction.

Some jurisdictions require a curriculum vitae for an expert. The expert should carefully set forth their qualifications, including education, professional designations, licenses, and memberships in professional organizations. The curriculum vitae should list clients and cases for which the appraiser has performed services (with their permission). It should also list every court that has accepted the appraiser as an expert witness qualified to give an opinion.

In the Courtroom

Look like the expert you are. The appraiser should come to court early. The witness must dress like a professional. No wrinkles or untucked shirts here.

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

Important Things to Remember – Respect

You should understand that there can be no communication between counsel and an expert during cross-examination. An appraiser should avoid looking at counsel when being crossed.

It is very important that the expert knows that respect for the court is mandatory. When a judge enters the courtroom, the witness should rise. The judge and court staff directions should be followed. The expert should understand that if the judge asks a question while the witness is giving his testimony, it should be answered directly and fully. The appraiser must address the court as “Your Honor.” Credibility is vital and can be damaged by failure to show respect and candor.

The expert must show respect for the cross-examining attorney and must remain polite. The witness should answer questions with simple language and avoid jargon. A witness should answer only the question asked. Do not assist a cross-examiner who is having difficulty presenting a question. If an obvious error is present, it should be admitted to, and the witness should move on. The witness should understand that they should never offer to help. They should answer the question and no more. A witness should not express frustration if limited to a “yes” or “no” answer. Hopefully, counsel will ask the expert to expand on the answer on redirect.

If an expert does not understand the question, he or she should request that it be rephrased. Experts are not required to guess or provide inaccurate testimony. A witness should answer one question at a time. Compound questions are improper, but a witness can ask for clarification. Take your time responding – no appraiser should let an attorney prod them into rapid responses that invite error. An expert should never engage in a dialogue. The witness is in court to answer questions, not ask them.

Preparing Your Work File

The Uniform Standards of Professional Appraisal Practice (USPAP) require an appraiser to maintain a work file for at least five years, or two years after the litigation is complete. When served with a subpoena, the witness should advise the retaining attorney and provide him with a copy of the subpoena, but not produce more than is requested in the subpoena.

Under USPAP’s Record Keeping Rule, an appraiser must maintain a work file for each appraisal. The work file must include true copies of all written or oral reports, documented on any type of media. It should be made clear that any report an appraiser delivers to a client must be part of the work file.

The law of most states provides that once it has determined that a prior opinion of value exists, it must be produced for use on cross-examination. On cross-examination, the rules of evidence allow a party to impeach the credibility of his adversary’s witness through the use of prior inconsistent statements.

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About Mike Rikon

Mike Rikon
Michael Rikon has practiced law in New York since he was admitted to the Bar in 1969. His law firm Goldstein, Rikon, Rikon & Houghton, P.C. limits its practice to eminent domain matters. From 1973 to 1980, Mr. Rikon served as a law clerk to the Honorable Albert A. Blinder of the New York State Court of Claims. Mr. Rikon began his law career as an Assistant Corporation Counsel for the City of New York, a position he held from 1969 to 1973, where he was a senior trial attorney in the Condemnation Division. Mr. Rikon is listed in the Who’s Who in American Law (3rd to current eds), Who’s Who in America, and Who’s Who in the World. He is rated “AV Preeminent” by Martindale-Hubbell. He is designated as a “Super Lawyer,” “Best Lawyer,” “Top Attorneys by New York Magazine,” “Top Attorney by the Wall Street Journal,” “Top Lawyer of the Year 2019,” and “2019 Power Lawyer.” Mr. Rikon is a frequent lecturer on the Law of Eminent Domain. He is the New York State designated eminent domain attorney for Owners’ Counsel of America. He is a Counselor of Real Estate. Mr. Rikon received his B.S. from the New York Institute of Technology, his J.D. from Brooklyn Law School, and a Masters of Law from New York University Law School. He lives in New York City with his wife Leslie.

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