Direct Examination of a Valuation Witness
The Goal of Direct Examination. It is important to understand at the outset that the goal of any direct examination is NOT to simply elicit information from the witness to permit the attorney to ride to the rescue and "wrap it all up" for the jury in closing argument. If the jury is not already on your side before you stand up to give your closing, chances are good that the case is already lost. Rather, the purpose of the examination of every witness in a trial, both direct and cross examinations, as well as opening argument (not opening statement), jury instructions and closing argument is for the trial attorney to argue his or her case to the jury. Understanding this fundamental premise sets the proper perspective and foundation for an effective direct examination. If the attorney understands that every witness, even an expert witness, is a vehicle through which the attorney must argue the case to the jury, counsel will not relinquish responsibility to the witness to carry the water. Rather, the attorney will retain control of the witness and guide the witness through the subject matter in order to make the points the attorney needs to convincingly make to win. Thus, the goal of the direct examination of a valuation witness at trial is to convince the jurors of the value of the property. If effective and successful, the jurors will be strongly inclined to your opinion of value when you complete your direct examination. This is accomplished by making sure the direct testimony is clear, memorable, credible, and resistant to cross-examination. Further, it is important to remember the basics of trial presentation, including the rules of primacy, frequency and recency, i.e. that jurors remember that which they hear first, last and most frequent. The Subject Matter of Direct Examination. The subject matter of the direct examination of a valuation witness should cover: o The expert's qualifications; o A description of the appraisal process; o A description of the specific work the appraiser undertook to value the subject property; o A description of the property at issue; o The highest and best use of the property; o A discussion and explanation of each approach to value used by the appraiser (e.g. income approach, comparable sales approach, cost approach); and o A final reconciliation of value. As each subject area is covered, the opportunity should be taken to educate the jury and convince them of the merits of your position. The Expert's Qualifications. The admissibility of expert appraisal testimony in a condemnation case is generally accepted. Most States provide certifications for appraisers. In addition, there are recognized professional associations that further credential and regulate the industry. Thus, a well qualified and legally certified appraiser should be able to qualify as an expert before most courts. But the field of appraising real estate is not so well known that the validity of appraisal principles and the rigor of a quality appraisal are well known to most jurors. Consequently, the first object of any direct examination of a valuation expert in an eminent domain case is to introduce the witness to the jury and convince the jury of the witness' competency, diligence, objectivity and credibility. In short, you should make sure the jury understands that your expert is an expert, is recognized by the government, the court and his or her peers as an expert, and that the witness did a quality job (was diligent) and objectively appraised the market value of the property at issue. It should go then without comment that an attorney should never accept a stipulation to the witness' expertise. Rather, the attorney should fully communicate the witness' expertise through testimony. Here, skill will be required to "bring the witness' expertise to life" without causing the witness to appear boastful, or putting the jury to sleep. Assessing the professionalism, quality, diligence and credibility of a witness is the first step for any juror in assessing the reliability of that witness' testimony. The appraisal process. After qualifying the valuation witness as an expert in the field and introducing him to the jury as someone they should trust and rely upon, you should begin the process of educating the jury on the nature of real estate appraising, so they may begin to form their own opinions about the quality of your witness' work ethic, thoroughness and credibility. This portion of the testimony should address every characteristic of the subject property that the attorney knows will be relevant to determining its market value. By addressing each element initially with respect to the appraisal of real property generally, you will be able to capitalize on the importance of frequency to a jury by reviewing each of these characteristics again later in the witness' direct testimony with respect to the specific property at issue in the case. The Specific Work Undertaken by the Appraiser in the Subject Case. After you have fully introduced the witness to the jury and then explained the appraisal process and the nature of the work that must be done to competently and accurately determine the market value of a particular piece of real property, you next should proceed to demonstrate the diligence and competence of your witness by walking the jury through, in detail, all of the work that the witness undertook in determining the market value of the condemnee's property. Again, the trial skill of repeating critical information for the jury in a different context (so it does not seem like mere repeating for repetition's sake) is important. In addition to having your valuation witness repeat critical information so it is not missed by the jury, many of the same critical factors should have been testified to by other witnesses. For example, a Land Planner may have testified earlier in the trial and discussed the importance of zoning and geography with respect to the subject property and why the subject property was particularly suited for the development proposed by the Land Planner upon which the appraiser relied. Thus, a skillful attorney will honor the rule of "primacy, frequency and recency" and make sure that critical information is presented to the jury early (in opening), frequently (by every witness and repeatedly by the same witness) and recently (in closing). At the end of a well-tried case there should not be any concern that the jury slept through or simply missed information that is critical to your case. The Particular Characteristics of the Subject Property. After the witness has discussed everything that he did to perform his assignment and accurately appraise the market value of the property, you should have the witness discuss the subject property in detail. This is another opportunity for the attorney to emphasize and highlight the critical characteristics of the subject property that bear on its market value. Each of the remaining subject areas for a valuation witness' testimony (highest and best use, discussion and explanation of each valuation method applied, and a final reconciliation of value) provides a skillful trial attorney with additional opportunities to emphasize and discuss the critical factors enhancing the value of the subject property. For example, each adjustment to a comparable sale property provides the attorney and witness the opportunity not only to emphasize critical factors enhancing the value of the subject property, but also an opportunity to bolster the expert's credibility by demonstrating that the expert made both negative and positive adjustments and thoroughly considered every relevant factor, i.e. the witness was diligent. The attorney should take the time necessary to fully address each subject area and not rush through the testimony or allow it to be presented in a summary fashion. Not only does each new subject area allow for discussion and emphasis of each critical factor, but through skillful questioning and the use of demonstrative exhibits the attorney may control how often each factor is mentioned by each witness. By narrowing the questions to elicit more detail an attorney may stay on a critical subject for as long as it is necessary to make sure the point is understood by the jury. In addition, the use of demonstrative exhibits not only permits the repetition of important facts, but they make the testimony memorable as well by involving a second sense (sight). Once the jurors believe they know the value of the property, it will be nigh impossible for opposing counsel to dislodge them from their opinion. Tone of Expert's Testimony. The goal of direct testimony is to have your witness impress the jury as professional, diligent, credible, objective and reliable. A braggart is rarely so perceived. Therefore, the tone of the direct examination of a valuation expert should be like a conversation between a knowledgeable but humble expert (the witness) and an intelligent adult student (the attorney asking questions for the jurors). This, again, highlights the importance of the attorney controlling the testimony through skillful questioning. Abdicating responsibility and "turning the expert loose to educate the jury through narrative testimony" rarely works. Although, many experts believe that is the best way for them to testify - they know more than counsel. You are the attorney responsible for trial. If you lose, you will get the blame not the appraiser. Take responsibility for the outcome. Control the dialogue and testimony and present it to the jury as you know it should be presented: respectful, not condescending; thorough, not superficial; professional, not sloppy.