Appraisal Buzz Spring 2016 : Page 19

LITIGATION CONSULTING LITIGATE THIS Written by Francois K. Gregoire Like many appraisers, you may be thinking about expanding your business and professional opportunities beyond preparing form reports for unappreciative mortgage lending clients. A niche worth exploring is accepting assignments as an appraiser expert witness or litigation consulting. Not all valuation professionals will find the work appealing. However, there are many who enjoy the challenge and find the work interesting, professionally rewarding, and a satisfying alternative to checking boxes and selecting responses from drop down menus. APPRAISAL BUZZ SPRING 2016 | 19

Litigate This

Francois K. Gregoire


Like many appraisers, you may be thinking about expanding your business and professional opportunities beyond preparing form reports for unappreciative mortgage lending clients. A niche worth exploring is accepting assignments as an appraiser expert witness or litigation consulting. Not all valuation professionals will find the work appealing. However, there are many who enjoy the challenge and find the work interesting, professionally rewarding, and a satisfying alternative to checking boxes and selecting responses from drop down menus.

HERE ARE FIVE THINGS TO THINK ABOUT BEFORE TAKING THE PLUNGE.

1 UPDATE AND TAILOR YOUR RESUME

Make sure your resume or curriculum vitae is up to date and cites relevant valuation experience and education. Concentrate on specifying your education and appraisal experience so potential clients will recognize you as beneficial to their cause when considering you for an engagement. In addition to disclosing degrees earned, include your entire history of attending updates of the Uniform Standards of Professional Appraisal Practice (USPAP), and list of appraisal education, particularly significant specialty courses. Regardless of when your continuing education deadline is for license or certification renewal, make sure your USPAP education is current.

Affiliations with professional associations and appraisal designations are a plus and help illustrate your competence. Include a list of articles written, studies or papers published, and pertinent courses written and presented during your valuation career. Keep in mind, you may be asked to produce supporting documentation to your client or opposing counsel during the course of the engagement.

2 LETTER OF ENGAGEMENT

Draft or edit the letter of engagement with the expectation that the assignment may last for some time. Expect the unexpected and attempt to anticipate eventualities. What appears to be a straightforward assignment involving one or a few parcels, expected to be completed within a month or two, could expand to include many parcels and extend to a multi-year assignment. Travel and overnight accommodations may be necessary. Specify not only your fee for completing the assignment, making appearances to testify at deposition and trial, but also time spent by you or staff in response to subpoenas and requests for copies of documents. Planning for contingencies will eliminate uncompensated appearances, and supplying copies with no reimbursement.

Terms of payment must be unambiguously stated and related to your performance of agreed upon tasks and assignments and delivery of work product. Insist on regular, timely, and periodic payment for lengthy assignments. The fee must not be related to the outcome of the underlying litigation.

3 REMEMBER YOUR ROLE

Litigation involves adversaries, and each is in it to win it. Engagement as an expert or litigation consultant does not alter your obligations as an appraiser. The expert does not “represent” the client. The appraiser is expected to perform competently and in a manner that is independent, impartial, and objective. In other words, the USPAP Ethics Rule applies. Experts must be free of bias and not advocate the cause or interest of any party, including their client. Be a defender of your opinions, conclusions, and the quality of your work.

4 MAINTAIN METICULOUS RECORDS

Unlike the typical mortgage lending assignment, where the client cares little about the content of your workfile, an expert witness knows the workfile is likely to be requested by the client or opposing counsel. Create and maintain your workfile with the expectation that it will be scrutinized by opposing counsel and their expert. Make sure it literally complies with the USPAP Record Keeping Rule and includes: all data information, and documentations necessary to support the appraiser’s opinions and conclusions and to show compliance with USPAP. Along with your work product (appraisal, appraisal review, or expert report), your workfile might be a resource during your testimony by deposition or trial. With appropriate data and information in the workfile, you will avoid the “I relied on my knowledge and experience” answer; one certain to prompt opposing counsel to pounce and go for the kill.

Additionally, it is not unusual for opposing counsel to request, either informally or by subpoena, all correspondence related to the assignment. Keep this in mind as you compose emails and letters to parties involved in the case or assignment; including those to your client and colleagues. It has been known for some lawyers to focus on a phrase or statement and allege collusion or other nefarious intent when taking depositions or during cross examination. Be mindful that others will be reading your correspondence with the intent to discredit you. Opposing counsel may not see the humor or wit in certain communications.

5 SOCIAL MEDIA PRESENCE

One of the joys of living and working in this era is the ability to stay in touch with everyone in the world and to participate in debate, discussion, and conversation on any topic under the sun. The flip side is there are no secrets and everyone in the world is privy to every dialogue, deliberation, argument, and flame war we engage in online. While valuation professionals do not forgo their right to free speech and ability to provide comment on social, political, scientific, and viral issues of the moment, remember what you have written. It may come back to bite. Some folks earn their living digging up controversial information originating with or shared by expert witnesses.

Remember also, the Confidentiality Section of the USPAP Ethics Rule means what it says. The current assignment may be interesting, and details of the parties and case may be so fantastic, you want to tell the world. You must resist. Violation of a client’s confidentiality may violate the terms of your engagement, an order of the court, harm your client or the other party, and make you vulnerable to license sanctions and civil liability. At the very least, future expert assignments will be tough to secure.

This list is certainly not exhaustive. Many more points could be added, but this should give you a start and help in making the decision if working as an expert witness or if litigation consulting should be in your future.

FRANCOIS K. GREGOIRE

Frank has been involved in Real Estate Appraisal since 1977, is a member of the National Association of REALTORS Appraisal Section, and a designated member of the National Association of Independent Fee Appraisers. Frank served eight years as a member of the Florida Real Estate Appraisal Board, four as chairman. He has been retained as reviewer and expert witness for several federal cases, including a class action, involving appraisal management companies. His current consulting assignments include a series of cases involving a federal agency and national companies.

Read the full article at http://www.omagdigital.com/article/Litigate+This/2468063/299967/article.html.

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