An attorney dealing with a complex commercial real estate litigation case has to look at all angles of the case. He has to approach the matter from different sides to find the best way to fight the opponents and win the lawsuit. This is where the expert witness comes into the picture.
The opposing council may hire an expert witness first. As a result, the other side should immediately consider employing an expert provided the deadline has not passed. There are many areas of specialty in commercial real estate. Below are just a few examples:
• Development • Finance • Brokerage • Valuation • Construction • Appraisal
One should only look for a forensic consultant experienced in the particular area of commercial real estate he or she is handling in the lawsuit. It is essential to locate a few expert witnesses who specialize in that particular area of commercial real estate. This may be challenging, because many experienced people don’t have websites. In addition, pinpointing their specialty could be difficult. There are some websites on the internet that may be helpful in finding the right expert witness for the case. Below are a few examples of expert witness websites:
• Forensic.org • Tasa.net • Glgresearch.com • Hg.org
A good way to seek a knowledgeable, skilled, experienced person with training and education in a particular area is to ask other attorneys in the law firm or outside of the office. In addition, the attorney should google search articles and blogs in the area of the case that may have been written by an expert in the field who also works as an expert witness. Due diligence is essential to verify the credentials on the expert’s Curriculum Vitae in order to prevent losing the case due to false or inaccurate information.
For example, the attorney should create a list of experienced commercial real estate brokers who have been and are currently working in commercial real estate partnerships. The attorney may see on a commercial real estate broker’s expert witness website he or she practices:
• breach of contract • mitigation of damages • environmental • brokerage disputes • property management • partnership disputes • lease interpretation • landlord-tenant disputes
However, the CV may not show current partnership transactions. As a result, that broker should not be considered. The consultant without specific qualifications may be considered weak compared to the opposing expert with qualifications in that area. Another danger in using an inexperienced individual is that the judge may find him or her unqualified to testify as an expert witness in the subject matter.
Some experts in Los Angeles are also attorneys who have worked in commercial real estate law and have a commercial real estate broker license. As a result, the attorney searching must choose which expert will be the most credible witness in a case. The broker may have more experience on the day to day dealings with the subject. However, the attorney will have more education and knowledge in the legal area. In addition, the attorney could be more costly to the client.
Expert witnesses usually charge a retainer fee and charge by the hour. The price can run anywhere from $300 per hour up. The cost per hour for a deposition usually will be more per hour plus a minimum of hours. Some may also charge for travel time and expenses.
Another factor to consider in choosing an expert is understandability. The person must be able to speak to the jury about industry information such as a commercial real estate contract in layman’s terms, so that the jury can understand the subject matter.
The attorney should meet with the expert before signing the contract. Some experts will provide thirty minutes to an hour of their time at no cost to see if the case matches his or her expertise. Once the attorney has found a smart, knowledgeable and skilled communicator with education and experience in the subject matter, there are many ways the expert can be used in the case for maximum impact.
The broker can assist the lawyer with insight into current trends in the commercial real estate market. In addition, the agent can possess the knowledge to uncover certain information in the discovery process that may not be easily obtainable by the lawyer.
Getting the right information through the discovery process is imperative to building a case. It allows the expert to provide powerful and persuasive opinions. In addition, he or she can sift through all the documents and help determine what is necessary and what is irrelevant to winning the case.
Using the forensic consultant in a deposition can help with finding the right questions to ask and who to depose to get the maximum benefit in a case. Also, the consultant can review the opposing expert’s deposition and opinions to see vulnerabilities and weaknesses in his or her findings.
Pre-trial preparation with the expert witness is helpful. Reviewing motions, briefs, stipulations, exhibit lists and other documents with the specialist is important to make sure that all agree on the findings. In addition, prepping the expert for live mock trial examination will help him or her immensely in their testimony if it goes to trial.
Using a specialist many times helps the attorney settle the case before it goes to trial. The expert can use his or her knowledge and interpersonal skills to give a very good analysis of the situation. As a result, the opposing side may fear losing in court and choose to settle the case.