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Abstract
No one needs a host of statistical data to know that litigation plagues American courts. We see the symptoms on the six o'clock news, in newspapers, trade magazines-just about everywhere one cares to look. Everyone seems to be suing or is being sued. In America, litigation is big business and not just a method of righting a wrong.
In settling disputes, the courts often look beyond the actual litigants and seek direction from presumed impartial persons with expertise in the area in question. Such people are known as expert witnesses. The expertise of individuals knowledgeable about gemology and the jewelry industry is required for a host of litigation stemming from insurance claims to consumer fraud. Therefore, a good appraiser?gemologist can prosper financially from this legal windfall. Success, not as a hired gun, not as an advocate nor an egotist but as an impartial, knowledgeable, honest and diligent appraiser.
Preparation is Half the Battle
As the famous Whitney Young, Jr. once said, "It is better to be prepared for an opportunity and not have one than to have an opportunity and not be prepared." So where does one begin? Assuming that you have both product knowledge and personal property appraisal training, the next topic to explore is the legal system. It is not good advice merely to offer your services as an expert witness. You need to have a rudimentary understanding of what is expected from you and the rules of conduct that are mandatory if you are to testify before the court.
Keep in mind that the United States legal system is one of advocacy. Attorneys fight for and represent the interests of their clients. Everyone is said to "fight" in court. One can imagine it as a verbal prize fight, with professional fighters maneuvering and skillfully hitting their opponents while being kept within rules of conduct as seen by the referee.
Despite the expectation of advocacy by counsel, expert witnesses are not expected nor allowed to be advocates. By definition the trier of fact expects the expert to be impartial. Although an expert witness is often retained by one of the litigants, a good expert will not lose sight of the fact that he or she is there to assist the trier of fact in understanding evidence and to determine contested facts. Most expert witnesses that do not have an understanding of their place in the legal system often say they are non?advocates and then act as advocates. Such conduct may diminish the expert's credibility in the eyes of the court. Remember we are not there to perform, but to inform.
Evidence
Almost everything we do as an expert witness is evidence. An appraisal report is evidence. Our testimony is evidence. Hence, our opinions are evidence.
That is why an expert witness' testimony is often referred to as opinion evidence. The value conclusion, the identification, the extent of damage, the custom of the trade for such a transaction and the choice of marketplaces are all opinions. Informed opinions are what an expert witness brings into the courtroom. Some of the evidence presented will be discounted or rejected and some will be accepted. What evidence is accepted will form the basis for proof. Expert witnesses present evidence and the trier of fact (jury or a judge in a non?jury trial) determines what is proof. As an expert witness, you do not present proof, only evidence.
Think of it in terms of building a house. One attorney will present a blueprint of the structure to the decision maker. He or she will offer a series of bricks that are needed to complete her blueprint. Then the opposing attorney will get their turn. The object will be to discount some of the bricks as unusable. The trier of fact will listen to the arguments of each side. Then the tables are turned and the opposing attorney presents his version of what the blueprint should look like. He will offer his series of bricks that are to be used in constructing the building. As each brick is presented, the opposing attorney will attempt to disparage it.
Finally, the trier of fact will not only decide which bricks are to be used for the construction of the building, but also take those elements of each blueprint to create a new one. The bricks are evidence and the blueprint is proof. In a civil lawsuit, merely having more bricks accepted than the opposition often scores you a win. In a criminal case, the prosecuting attorney must convince the trier of fact to accept a very high number of bricks to win. The defense in a criminal case need only convince the trier of fact that as few as one brick is flawed thus creating enough doubt about the prosecution's case to win.
Your role as an expert witness is to provide some of the bricks that are to be used in the retaining attorney's proposed blueprint. In the real world, your evidence will be used by the trier of fact to determine what is proof.
Who is an Expert?
You may be wondering, "Am I qualified enough to testify?" The answer may surprise you. Contrary to popular opinion, the courts generally have a superior common sense. For example, the courts know that there cannot be a "super" expert available for every case. The sheer number of cases waiting to be tried dictates that the level of qualifications as an expert is more flexible. Yes, some expertise is needed and the more the better, but not to a level of "super" expert.
In general, to qualify as an expert ones needs to possess one of the following.
- Special knowledge
- Skill
- Experience
- Training
- Education
The approach is for an attorney (or perhaps your appraisal client) to contact you and ask if you will be willing to be their expert witness. After reviewing the information about the case you decide to testify and they retain you. At this point it is customary to request a retainer. Do not forget to request one. If the attorney did not request your Curriculum Vitae during the initial interview stage, he is likely to request one now. A CV is a summary of one's professional education and qualifications. It should at a minimum, provide details of your education, listing in particular courses related to appraising and gemology. Also, include a summary of your work experience. List any articles or books that you have authored. One might also consider giving a brief synopsis of any particularly challenging appraisal assignments they have undertaken, detailing the challenges and how they overcame them. (Editor's note: Do not embellish your CV. There are few bigger disasters for the expert witness than being confronted, while on the stand, by an attorney who has checked into your credentials and found them to be exaggerated. Admitting under oath that your qualification or experience has been exaggerated, or even worse fabricated, will be the longest couple of minutes of your professional career.)
Often a Long Row to Hoe
Some cases can stretch on for quite awhile. Therefore, it is only natural that some time will pass and they will contact you during the discovery phase to testify, usually at a deposition.
A deposition is testimony given by a witness while under oath and before the trial. The purpose is in part to allow the opposing council to discover what opinions you have, as well as the basis for those opinions. Deposition is usually the first step in discovery that you as an expert witness will encounter. Notice to appear for deposition may come to you in the form of a formal request, called a subpoena, or the retaining attorney may simply call and ask if you are available on a certain date. Usually, a letter of confirmation is transmitted by facsimile, mailed or both.
Why Are We Needed, Again?
In American jurisprudence, the discovery process is an accepted part of the legal process. Based on the principle that someone accused has a right to face his or her accusers, one can question all evidence or persons involved in an incident. The rules of discovery may vary from jurisdiction to jurisdiction, but basically involve the same steps. A time period with a beginning and an ending will be designated as discovery. During this window, each side (party) is afforded the right to "discover" what the opposition has for evidence. Reports, photographs, physical evidence and opinion testimony are all open to discovery. Discovering opinion testimony does not just involve finding out that someone has been retained as an expert witness, but what that expert's opinions are. Consequently, appraisal reports, your professional profile, opinions not documented, previous opinions documented, field notes, etc. all are discoverable. Expect them to ask you for both documents and your actual non?documented opinions.
Being deposed doesn't automatically mean you will be accepted as an expert. It is at trial and by the court that you will be qualified or disqualified as an expert. The procedure is simple. The retaining attorney will most likely call you as a witness. He will then ask you to state for the court your qualifications (professional profile or CV). The opposition may or may not challenge your status as an expert. If they challenge, they will explain why to the court. In any case, even if challenged, it is the judge who decides whether you are an expert or not.
After the opportunity for discovery has closed, the next testimony you may provide is at trial. But, before trial, there may be numerous times when you are asked to assist the retaining attorney or participate in settlement conferences or pretrial hearings. (The next part of this three?part series is dedicated entirely to discovery.)
Informed Opinions
As an expert, your opinions are evidence. However, if your conclusions are not informed opinions, you may find yourself being dismantled. Guesses or "sky hook" opinions are often challenged successfully in the courts. Remember, there most likely will be an expert hired by the opposing side that will evaluate your claims.
Valuation Tips
There is nothing more devastating than discovering that your appraisal report will not be admitted as evidence because it does not comply with the law in jurisdiction. There are two reasons for such a disaster; one being an incorrect value methodology and the other being an incorrect definition, date of value or vicinity for the value conclusion. Appraisal assignments usually have a definite approach that is mandatory by reason of statutes, regulations or previous judicial opinions. (Editor's note: Although the typical appraiser is not an attorney and therefore has no business offering legal advice, clearly as professionals, we have an obligation to know and understand those areas of the law that relate to our work products. Appraisal reports must conform to the legal requirements of the assignment.)
There are, at least for personal property appraisers, basically three approaches to determining a value. One can select the cost approach, the market data approach, or the income approach. Unless there exists a reason to determine what the property's ability to generate income is, only the first two approaches are employed.
Which of the two choices is superior? While both can be used in court, the market data approach is more easily defended because it reports the market activity of actual items. Unfortunately, the cost approach is often selected by the inexperienced expert. Odds are, that most readers of this article use the cost approach for their appraisals. Since little of what we do as appraisers ever ends up in court, we do not realize the superiority of the market data approach. Previous judicial opinion prevails in determining the need for market data reports.
If you plan to enter the expert witness arena, then you will need to learn how to use the market data approach to determining value. This expertise is needed not only for your value conclusions but also to demonstrate to the court the weakness of any value conclusions based on the cost approach. (Editor's Note: contrary to some opinions, using verifiable wholesale costs such as those used in creating the price grids reported in The Guide, combined with actual, verifiable markups obtained by research of a specific market level and vicinity, establishes a form of the market data approach and should not be confused as strictly a cost approach. The courts have accepted pricing publications including The Guide in numerous value cases. For a further explanation of the three approaches to value, see the Appraiser's Notebook in this issue.)
Conclusion
Before deciding to offer your services as an expert witness, study the value approaches available and the markets that exist for jewelry items. The first step is to change your value approach if you are customarily using the cost approach and employ the safer and preferred market data approach instead. Next, avail yourself of appraisal training. Not just any appraisal training, but one that is regarded as cutting edge or state of the art. Be careful to avoid obtaining professional designations that are not based upon training and testing. The educated expert retained by the opposition is likely to quickly dismantle the credibility of an "expert" that brought a certificate supported by little or no training.
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