Expert Witness Credibility

Written By: Lee A. Dresie

Greenberg Glusker

Los Angeles, California

A Win, And A Lesson: The Credibility of Expert Witnesses

Credibility in the courtroom is like virginity. Once lost, it cannot be regained. A recent bench trial in Los Angeles Superior Court provides an apt case study.

The case involved a sale of industrial property in north San Fernando Valley, used primarily for storage of trucks and large equipment used in the entertainment industry. The lawsuit arose when it was discovered after the sale that the seller had misinformed the buyer about the eastern boundary of the property. That boundary was adjacent to railroad tracks owned by Metrolink. Everyone knew that Metrolink had a 100-foot right of way, but there was confusion about exactly where that right-of-way lay. A post-sale survey revealed that my client, the seller, had included in the property sold portions which were actually owned by Metrolink. This created serious problems both in liability and damages.

It was therefore important to establish credibility with the trial judge, and to shift the lack of credibility to the other side. The first step in this process was conceding that the representation had been made, and that it was mistaken. Because the post-sale survey was unassailable, we elected to concede the fact that the Metrolink right-of-way included property which the buyer and seller believed was part of the sale. Because the seller had in fact misinformed the buyer about the boundary, we also conceded that fact. I believe these concessions gave us credibility when we attacked other parts of the buyer’s case -- primarily damages. This attack leads to the primary lesson from the trial. This is a lesson primarily about expert witnesses -- but which also applies to all witnesses and attorneys.

Plaintiff’s damage claim was dependent on an expert witness’s testimony about the diminution in value of the property based on the fact that the buyer did not receive what everyone believed he was going to receive. Plaintiff’s expert was an extremely well known expert who has testified in numerous cases and who has an impeccable resume.

Nonetheless, on cross-examination the expert was quite ineffective -- even though I am sure that the expert believed he was doing a great job for his client. But that was the problem. The expert became an advocate instead of a “disinterested” and believable expert. Because he could see where I was going to lead him once he acknowledged certain facts, he refused to acknowledge fairly uncontroversial facts. While that meant I was unable to get him to concede the conclusions that I hoped the judge would reach from those facts, it also caused a much more important effect. The judge totally discounted the expert’s opinion. As a result, the judge concluded there were no damages. The judge’s order made it clear that the expert’s conduct on cross-examination destroyed his credibility:

“…based on questions on cross-examination and his demeanor, the Court did not find Mr. XXX’s testimony to be very persuasive.

To the extent plaintiff claims that this amount of land had a lesser value, the Court has concluded that plaintiff’s expert was unpersuasive. His feigned ignorance of the use of “cap rates” as a valid method of appraising the value of commercial land spoke volumes about his bias in this case. His further reluctance to acknowledge a fair rental value of the property further weakened his credibility. His use of comparables as a valuation method was also suspect. He relied on a property which his own client would never have considered because of its remoteness, and in so doing, the expert placed a higher value on the property. Finally, the expert’s extrapolation of a value of the subject property was unpersuasive and biased.”

The lesson is obvious. Do not let your expert, or any witness, become such an advocate that they lose all credibility. Tell your expert, and all witnesses, to concede points that are obvious. If your expert, or any witness, loses credibility, they run the risk of destroying your case. That is what happened to the buyer here. The buyer did not prevail at trial even though it was undisputed that (a) a misrepresentation was made about the property, and (b) the buyer did not receive the property both buyer and seller believed was being purchased.

The same analysis applies to attorneys. The effective attorney is not one who disputes every fact and point of law. Instead, by conceding negative facts, and acknowledging contrary law, an attorney can be much more persuasive. When the attorney has graciously conceded certain points, the trial judge will find him more credible when he argues why the facts and law, taken as a whole, support that attorney’s position.

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