Michael Rikon will be presenting on the “Cross Examining Appraisers: Taking Apart the Key Witness” at this year’s ALI CLE Eminent Domain and Land Value Litigation Conference. The Conference will be held at Hotel Nikko in San Francisco from February 5-7, 2015. Registration is now open by clicking here.
What follows below is an advance look at Mr. Rikon’s comments and article he will share at the conference. His presentation will cover such topics as USPAP standards, prior appraisals, impeachment of the expert, and examining the appraiser’s sources. We hope you will consider attending this excellent conference.
TAKING APART THE KEY WITNES
By Michael Rikon
Cross-examination of the other side’s appraiser or expert in a condemnation case may be the most important part of your case. Appraisers often present equally impressive qualifications and expertise. Certainly, some appraisers testify better than others. How does one set your valuation experts apart from your adversary’s? How does an attorney persuade the finder of fact that your evidence is correct? The answer is cross-examination. It is by cross-examination that you can establish the fundamental flaws of the other appraiser’s valuation theory, or their out and out bad faith.
Condemnation cases are tried in New York before a judge and not before a jury. Most states provide for jury trials in eminent domain matters, so many experiences and suggestions related herein should be tempered by that fact. But whether your trial is before a judge or jury, one thing is certain, no one likes dishonesty. Show that the other side’s appraiser is not telling the truth and the appraiser will not be believed. The converse is true. Your appraiser should always tell the truth. An experienced expert witness will admit to an error which will in fact increase the witness’s credibility.
In his book, “Expert Witness in the Legal System: A Scientist’s Search for Justice,” Morris S. Zedek wrote that in 2001, the Committee on Criminal Advocacy of the Association of the Bar of the City of New York surveyed judges about the prevalence of perjury in the New York metropolitan area. In regard to expert witnesses, of the thirty judges who responded, 50 percent said they encountered occasional perjury.
This is not surprising to a trial lawyer. In condemnation cases, most reputable appraisers do not commit perjury. They may tend to direct the valuation by more subtle ways. Key valuation factors include the selection of the highest and best use of the property, selection of comparable sales, or what capitalization rate should be applied. All of these critical elements of valuation should be supported by data contained within the report. But the selection of these yard sticks is often a matter of appraiser’s opinion. The correctness of this opinion is subject to cross-examination.
The problem is that appraisers are often not independent experts. Rather, they are controlled and directed by the party who has retained them. In many condemnations, we have observed the wholesale transfer of control from small municipalities to developers. Every aspect of the eminent domain process is controlled by the project developer.
In some instances, the appraisers who valued the property for a pre-vesting offer and advance payment are replaced with a more obsequious appraiser who reduces the valuation.