Pass being hired as an expert
Q: " I have done a little “expert” witness work over the years, mostly in connection with divorce cases. I have had my deposition taken 5 times and I have testified at trial twice. I am hardly a “professional expert.” I got a call from a local attorney who got my name from another attorney that I worked for last year on a divorce case. I had a meeting with the new attorney yesterday. The more I think about this, the more worried I get. I think I should pass on this assignment but wondered what your thoughts might be.
The attorney represents a property owner who is suing his neighbor. While in the process of putting up a fence, the neighbors got into some kind of fight about where the property line was and who had control of certain land. I guess the person who I would be working for wanted to put up this fence on what he thought was his land, but the neighbor didn’t like the fence, so he started planting trees to block the fence. The dispute goes on and it sounds like things have gotten pretty nasty.
After my meeting with the attorney I went back to my office and looked over my notes. I am really not sure what I am supposed to be doing here. Does he want me to value the entire property? Is he claiming that the trees planted by the neighbor infringe on his client’s land? Is he asking for some kind of diminution in value analysis? I truly don’t know and, frankly, I don’t think the attorney knows. During our meeting he was all over the place. I am not sure he even knows what his case is about? I am thinking I have to pass on this. I have a bad feeling about this attorney blaming it on me if this case is not successful. Do you think I am overreacting?
A: Not at all. I think you have to trust your instincts on this one. The attorney has to know what his case is about in order to work with you as the expert and in order to give you guidance as to the nature of the opinions he is seeking. If he is unable to verbalize that, then there could be a problem. Unfortunately, we have seen several claims over the years brought by an attorney against the appraiser who he hired to act as an expert.
When a case goes to trial, and the client does not get the desired result, they may not accept the fact that their case was not as strong as they had hoped. They may think they lost because their attorney did not do a good job, so they sue the attorney for malpractice. In several cases, that attorney has turned around and sued the expert witness, basically claiming that, as the expert, it was the responsibility of the appraiser to tell the attorney what he was doing wrong.
When you act as an expert, you are part of the team. You may have to provide technical expertise in order to assist the non-appraiser attorney. However, you are not supposed to be telling the attorney how to present his case, what witness to call, what evidence to introduce, etc.
If you think the attorney you met with does not know enough about his case to give you guidance, I have to agree that this is an assignment you might wish to decline. Don’t wait too long to tell the attorney, if that is your decision. The court generally issues a deadline date by which both sides have to name their experts. If you wait too long to back out the attorney might not have time to find another expert and that could create an even bigger problem. Be sure to follow up, in writing, so there is no question about what you said, or when you said it.
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