Lawyers are the stars of courtroom dramas; expert witnesses are in supporting roles. They provide key explanations to help judges and juries understand the facts and theories which the lawyers present. This article explores the role of an expert witness in real estate law and legal malpractice cases, including:
- What makes for a strong expert witness.
- The procedure for hiring and working with experts.
- The limits and costs of expert witnesses in Arizona court cases.
What Do Experts Contribute?
An expert witness provides the court and the jury with crucial information he/she understands better than people who are not schooled in the subject. Since the lawyer cannot “testify,” it takes an expert witness to be able to clarify positions the lawyer wishes to take. For example, a case against a real estate salesman who has drafted a complicated agreement poorly, requires an expert to testify that, since a non-lawyer who drafts an agreement must perform at the level of a lawyer, the agreement was deficient because it did not account for certain obvious risks. A case against a lawyer who has failed to call an important witness in a case he tried, requires an expert to testify that the standard of care for lawyers who try such cases requires them to provide witnesses to establish certain necessary elements of the case. This must be done through the expert’s testimony on direct examination by the lawyer who has hired the expert.
A good expert witness, however, goes one step further. The expert will present information, even the most difficult concepts in a way anyone can understand, translating obscure and hard-to-grasp rules into terms that make sense to an ordinary jury member.
What Makes For A Strong Expert Witness?
The best experts are those with a lifetime of expertise, allowing them to speak with authority on questions of the standards required of lawyers and real estate professionals, for example.
An expert needs to understand well the lawyer’s theory of the case and trim his or her opinions to meet the lawyer’s expectations. A real estate expert should have extensive experience in both drafting and negotiating real estate contracts and in litigating these cases in court. A legal malpractice expert needs to have dealt with the issue the defendant lawyer is alleged to have gotten wrong. And the expert needs to use language easy to follow. The witness stand is not the place to impress everyone with the expert’s knowledge of intricate technicalities or the private jargon of people who deal with such issues regularly.
Furthermore, an expert witness should be qualified to speak on a broad range of topics. So in real estate law, a lawyer might want to work with someone who has drafted agreements for everyone from large and small residential landlords, to real estate brokers, and even large-scale shopping center landlords.
For example, Arizona-based real estate expert witness attorney David Leonard has represented everyone from individual homeowners to a national chain of retail stores in their leasing from suburban centers to 42nd Street in New York.
What Should Attorneys Look For In A Real Estate Expert Witness?
While expertise and experience are crucial, it is not an expert’s ability to merely speak with authority that will help an attorney win their case.
It is their ability to produce plain reports and to testify in plain English that any juror can make sense of. Simple explanations without jargon often make a far bigger difference than obscure terms that either fly over most juries’ heads or are quickly forgotten.
Attorney David Leonard is a seasoned real estate lawyer based out of Arizona, who has testified as an expert witness across several states. He has over five decades of experience in the world of real estate law and transactions, and is a specialist in turning complex topics into easy-to-understand reports and testimony.
Looking for someone to testify in your case? Contact David Leonard today to discuss your case and position.
Make A Call – (323) 379-1261
What Type Of Real Estate Cases Might Require The Intervention Of An Expert Witness?
While nearly any sufficiently complex or important real estate case can benefit from the intervention of an expert witness, some types of cases do seem to require them more often than others.
The following are all examples of issues on which a real estate expert may be required:
- Sales agreements
- Commercial and residential leasing,
- Brokerage,
- Real estate finance,
- Deeds of trust,
- Foreclosures,
- Easements,
- Title Insurance
What Is The Process Of Hiring An Expert Witness?
When, a lawyer, seeks the services of an expert witness like Attorney David Leonard, you will first have to define the issue that a jury would not understand without some help. You need to articulate the issue and explain the evidence on which your theory of the case depends. If he agrees with your position, he will need to know what you need to support your argument.
You can then ask him for anything from a “bare bones” preliminary report to a comprehensive report which you can use with the opposition to settle your case. An expert witness may also be able to provide assistance with questioning the opposing side’s expert or managing the discovery process.
Step By Step, What Does The Role Of A Real Estate Expert Witness Look Like In A Case?
If you are a lawyer looking to hire a real estate expert witness for your case, it is important to understand what that process might look like, from start to finish.
- Step 1: Summarize your issue and send the expert the documents and depositions you think he/she will need.
- Step 2: Answer the expert’s specific questions and provide additional documentation.
- Step 3: Discuss the level of detail you want in their preliminary report since Arizona requires a preliminary report within forty (40) days after the Defendant files an Answer. However, the report can be very “preliminary.”
- Step 4: Review and discuss the expert’s draft reports.
- Step 5: Request a comprehensive report from the expert when you have done sufficient discovery
- Step 6: Provide the basis for any discussion of proximate causation (which may involve some factual opinion) Note that an expert may not testify as to opinions of fact; however, the expert may be able to ignore some evidence that is either unreasonable, unbelievable or contradicted by undisputed facts.
Identify your problems with proof and the adverse testimony; the expert will have to be able to deal with them. Note that the expert needs to provide an opinion based on both the facts as advocated by the lawyer and the facts as advocated by the adversary. This is very important in the preparation for cross examination.
- Step 7: Provide the expert with the opinions of adverse experts.
- Step 8: Prepare the expert for deposition or trial testimony.
- Step 9: If needed, obtain assistance from the expert witness with your deposition of the adverse expert.
When Should An Attorney Request The Help Of An Expert Witness?
Not every case requires expert testimony. That is only required when there are one or more issues with which a judge or jury would not be sufficiently familiar and would need an expert to help them understand.
In some cases, the absence of an expert witness is fatal to the case. It is a good idea, early in the case, to outline a closing argument to the jury. If you find yourself explaining issues a person unfamiliar with the subject would not otherwise know, you need an expert.
What Areas Of The Law Does An Attorney Need To Be Familiar With To Be An Expert Real Estate Witness?
It is almost always best to find an expert who has experience in your jurisdiction. However, that is not always possible. When the standards that apply to real estate professionals or lawyers, for example, are peculiarly local, the expert needs to have experience with local practice. Even then, an out of state expert can consult with local counsel and educate himself. However, when standards are more general or national, a local expert is not necessary.
Can An Attorney Testifying As An Expert Witness Provide Opinions Or Interpretations Of Real Estate Contracts And Legal Documents?
It is important to understand the limited role of an expert witness. Even if the expert is an attorney, s/he cannot generally provide opinions or interpretations of contracts and other legal documents.
The interpretation of real estate contracts and legal documents is a matter for the Court to decide and the judge does not need the help of an expert. However, the testimony of an expert witness may still impact the legal interpretation of a document; i.e., there are “mixed questions of law and fact” like proximate causation, which require expert testimony. Discuss those issues with the expert because the Court may interrupt the expert testimony at trial and rule that the expert has no business giving an opinion.
What Makes For A Credible Attorney Expert Witness?
Some people who present themselves as experts may not be, sufficiently capable of standing up to questioning by the Court or adverse counsel as to their qualifications. However, some attorneys, like David Leonard, have always passed with flying colors.
With nearly sixty years of experience drafting, negotiating and litigating real estate and other transactions, and litigating a variety of complex civil cases, attorney David Leonard has built up a considerable standing in the profession. Such experience and standing allow attorneys like him to be approved by the court as an expert without extensive inquiry.
How Much Should It Cost To Do The Preliminary Opinion?
You should expect to pay no less than $5,000 for a preliminary report that satisfies the Arizona requirement for a Preliminary Report unless the issue is relatively obvious; e.g. a lawyer has missed the statute of limitations and the case has been dismissed on that ground. A jury does not need to hear expert testimony that the lawyer’s conduct departed from the standard of care. You should be wary of any “expert” offering to provide a preliminary opinion for substantially less.
However, some lawyers want a comprehensive report that could be used as the basis for trial testimony. That will require the expert to review all of the relevant documents and testimony and, perhaps, research the law. Depending on the complexity of the case, the Preliminary Report could cost substantially more.
For more information on Retaining And Expert Witness, an initial consultation should be your next step. Get the information and legal answers you are seeking by calling (323) 379-1261 today.