Litigation Support: Expert Consulting Opportunities

1. 2019 Appraisal Institute Annual Meeting Tuesday, July 23: 10:30 am - 12:00 pm Litigation Support: A Consultant’s Gold Mine of Business Opportunities Speakers: Doug Main, ASA, CRE, CEC, MAI, SGA David Zoraster, MAI< MRICS

2. Welcome Litigation Support: A Consultant’s Gold Mine of Business Opportunities Expert Testimony Business Opportunities Expert Consulting

3. Outline / Agenda Expert Consulting Services, a component of litigation support, is different than Expert Witness Services. Qualifications Clients Generally Look For (hire me…) Agreement Tips Understanding the difference between Expert Consulting Services Vs. Expert Witness Services; Getting Started / Expanding the Opportunities The benefits of specialization Organizations / Listings Networking: Internal / External Other Tips / Prospective Tips to avoid the label / mentality of a “Hired Gun” or “Ivory Tower Expert”. Proceed With Caution A learning Experience Be proactive

4. Qualifications Clients Generally Look ForHire Me…The Role:Expert ConsultingExpert WitnessBoth An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify her[/him] as an expert on the subject to which her[/his] testimony relates.”  (Evid. Code § 720.)

5. Criteria / Looking For The Professional Resume: Designations And Qualifications - Professional Designations do they matter? (avoid “fluff”) • Formal / University Education • Experience • Prior Testimony Speaking, Writing and Teaching Roles Continuing Education Common View Counsel should be able to hold an informed conversation with a potential expert before they make the short list. Think of it as an interview process.

6. Qualifications: What They Generally Look For What makes an expert “qualified” to assist on a given case is variable, and can largely depend on the facts of the case and the norms / standards of the field.  Typically, expert witnesses come from one of three backgrounds: Practitioners whose expertise comes from hands-on work in a particular industry. Physicians, auditors, appraisers, engineers, etc. often fall into this category. Academics whose field of study encompasses the questions or facts at issue in the case. Academics with experience in specific methodological approaches, such as statistical analysis or assessment, may also fall into this category. Professional experts who work with expert consulting firms or their own companies. These individuals often start their careers as academics, practitioners, or both, then transition into providing expert testimony in their field as a part- or full-time career.

7. Other Considerations • Client / counsel will typically evaluate the potential Expert’s Demeanor. • An expert testifying in court must possess strong oratory skills. • Experts are sought out that are able to relay information in a cohesive manner to: a judge, a jury, a panel, hearing board, arbiter, etc. Tip: Effective communication is generally viewed as a key (almost a kind of a must-have trait) counsel looks for in a testifying expert witness. Perhaps less critical for non-testifying Consulting Expert • Generally there is a desire that an expert can appear personable and trustworthy.

8. The Agreement

9. The Agreement: A Few Tips • Engagement Agreement Objectives: • Create a contract that promotes clarity protect both the appraiser and the client eliminate surprise promote objectivity tailor the agreement for the appraisal assignment. • Conflict Interest (Actual & Business) – Avoid tainting the expert's credibility. Disclosure of Prior Relationships. • Should the Client or should Counsel hire you? (confidentiality, discoverability and the Work Product Doctrine). • Scope of work: Use Caution - Typically should be open and general in parts, specific in other parts. Allow for flexibility (i.e., Phasing the work). • Your Role: • Consultant Only • Testimonial Expert Only • Both Qualified via knowledge, skill, practical experience, training, education, or a combination of these factors; a common denominator, the expert (consulting / testimony) is competent in the subject matter.

10. The Agreement: A Few Tips (Continued) What If Your Client Won’t Agree to Your Terms?Should you be flexible? (Within reason, but don’t hesitate to walk away) Collecting Experts & Fishing for Experts (be careful) Communicating With Counsel - Best way to communicate is by Phone! Discuss with counsel. When can or should you email? Discuss with counsel. However, get any special requests or instruction impacting your scope, for example, in writing.Question Reasons For Legal Instructions and Account for Jurisdictional Exceptions

11. Don’t forget to get Paid Tips / Consideration: Professional Fees (Fixed, T&M, Mix, etc.) Project Prep & Discovery Testimony (i.e., hourly, half day rule, carry over, etc.) Make it clear in the agreement, who is paying the bill. Common practice to get retainer. Bill on frequent basis (monthly is typical). Be timely with billing (report hours and detail can vary). Suggestion: Retainer is applied to the final bill, and credit is paid back. Before any testimony, good practice is to be sure all invoices are paid. Keep Track of your T&M Understand the report requirement for T&M (standard or a court procedure, etc.) Expenses are typically billed and invoiced.

12. Let’s Start / Expanding the Opportunities The benefits of specialization Organizations / Listings (i.e., Expert Witness Directories like: www.theexpertinstitute.com, www.experts.com, www.americanbar.org, www.ims-expertservices.com, www.aptcnet.com, www.napta.com, www.acrel.site-ym.com, www.nla.org, www.abi.org, IRWA, AI, ASA, etc. Networking: Internal / External Within your company / organizations In-house counsel and CFO Government / Agency Counsel (DOTs, Ptax, Booked Assets, etc.) REIT Counsel Non-profit Counsel BVAL experts Others including CLE opportunities (Lunch & Learns) Expert Consulting Services can and does provide a multitude of business opportunities that tangibly can improve your networking capabilities and bottom line.

13. The Benefits of Specialization Focused Areas of Services Asset Type Service LineExperience

14. Want to be an Expert Witness? Now, if Mr Trotter wishes to voir dire the witness as to the extent of her expertise in this area, I'm sure he's gonna be more than satisfied. ~ My Cousin Vinny (Movie 1990) Selected as the Testifying Expert Witness or when the Consulting Expert Becomes a Testifying Expert When the valuation analyst is engaged by an attorney, often the expert is initially engaged as an expert consultant to provide advice to the attorney so that the attorney can properly represent his or her client. The attorney may decide that the consultant’s work is not going to be used in litigation. In this situation, the consultant’s work is protected by the attorney-client privilege and is may not subject to discovery by the adversary. Tip: Ultimately, it is the court’s prerogative to accept the expert and the expert’s testimony. Don’t’ forget Daubert & Frye

15. The Clash of Experts The Clash of Experts Don’t make it personal with the expert. Goal is to be an advocate of your work and opinions not the outcome.

16. FACT VS TESTIFIYING WITNESS How many of you been fact witness? How many of you have been expert witness? How many of you have been both As a fact witness the appraiser is generally only required to confirm that the appraisal was performed on a certain date and the value was a certain amount, which is materially different than a testifying witness.

17. CROSS-EXAMINATION, REBUTTAL & REDIRECT Tip: Beware of the Hypo Beware of hypotheticals on cross examination, etc. – built in traps -

18. Other Noteworthy Tips / Considerations The Go / No Go Tip: Get your points across but understand importance of the ability to stop talking before too much is said! The best experts do not lecture; they teach. “Don’t write it down until you are sure it is correct.”The need for consistency. Know what you don’t know and know why you don’t need to know it. Effective experts tend to rely on a core of indisputable facts and/or foundational principles that underly their opinions. (Safe Harbor Response(s) – beyond scope, insufficient information, not an attorney, that is a hypotheticals, etc.). Avoid the view that your report contains all opinions and facts that you may testify about in the case.

19. Try to Avoid the “Hired Gun” Label A Diverse Client Base Highlight Diverse Subject Matter Experience Work with Counsel to Minimizes Diverse Client Base Growth

20. Can’t Un-Ring the Bell Proceed With Caution – You Can’t Un-Ring the Bell…

21. A Good Closing Proactive Prospective Inform clients / attorneys that your experience & expertise should be a forethought, not an afterthought.

22. Questions & Answers