Expert Opinion: Property Managers Showcase Their Expertise in the Courtroom as Expert Witnesses

By Mirel, Diana | Journal of Property Management, November-December 2007 | Go to article overview

Expert Opinion: Property Managers Showcase Their Expertise in the Courtroom as Expert Witnesses


Mirel, Diana, Journal of Property Management


When Diane Whipple, a 33-year-old lacrosse coach was mauled and killed in 2001 by another resident's dog in her San Francisco apartment building, E. Robert Miller, CPM[R] of E. Robert Miller & Associates, was asked to serve as an expert witness in the high-profile wrongful death case that ensued: Whipple's mother and Whipple's life partner each brought separate wrongful death claims against the dog owners, the building owner and the building's property management firm.

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Miller's role was to discuss the building owner's and property manager's liability. His testimony focused on the fact that the 40-unit building did not have a resident manager, despite a California law requiring a manager in any building with 16 units or more. Eventually, the civil cases for both Whipple's mother and partner were settled.

Currently a high demand for property management expert witnesses exists. The demand is not a matter of more lawsuits or more cases today. Rather, it is a result of attorneys not understanding property management and needing experts to explain the field. Further compounding the problem is few property managers are willing to do expert witness work, said Paul L. White, CPM, and president of Paul L. White and Associates.

This leaves the field wide open for experienced and educated real estate managers. However, a manager cannot jump into expert witness work blindly. Along with significant property management experience, experts must understand their role, have knowledge of the legal system and establish credibility.

GOING INTO BATTLE

One of the major roles of expert witnesses is to act as consultants. Before sitting on the witness stand, they advise and educate the acting attorney who hired them about the real estate management industry and its professional standards so it can be determined whether those standards were met in the particular case.

Miller said expert witnesses are not "hired guns." Rather, they are expected to be impartial and objective authorities, regardless of which party has hired them.

"Expert witnesses are not advocates," Miller said. "They don't care either way. They are providing information to the judge, jury and other lawyers as to what is standard in the industry."

To adequately provide that information to all parties, expert witnesses must spend time carefully reviewing case documents like the management contracts agreed upon by the involved building owners, tenants and property management firms. They must also review depositions. Depositions are the sworn testimonies of witnesses outside of court Those testimonies are part of the discovery process in which litigants obtain information from one another in preparation for trial.

These materials are crucial to the case because they help expert witnesses understand all sides of the case and gather the necessary information needed to make an expert opinion about how industry standards apply to the case.

Miller has worked on cases with more than 70 depositions to review. He said depositions often include hundreds of pages and take hours to read. Upon reviewing the material, experts then prepare a written report detailing how industry standards apply to the situation.

Experts also prepare for a deposition or trial by having an attorney question them from both party's perspectives so they know what to expect. Experts should also get a feel for the other party's attorney and how he or she performs in court. By knowing what kind of personality he or she will be dealing with, the expert witness can mentally prepare for the questioning. By reading the depositions, Miller said a witness can get a feel for how the two attorneys get along and if they are at battle.

"You know if they are battling, you'll be battling," Miller said.

IN AND OUT

Once an expert witness has gone through all the rigorous preparation and enters the courtroom, it's a whole new experience. …

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