In Uncategorized on 05/14/2019 at 17:01

Judge Albert G (“Scholar Al”) Lauber understands that more than one expert may have prepared an expert witness’ report. So each needs to testify on the trial. And the best way to find the truth is to try the case.

But there’s also the question whether their report (which is their direct testimony) should be admitted.

This is the latest tactic in the ongoing conservation easement joust, the motion in limine. Ordinarily, I like motions that dispose of major issues, if not the whole case. But not when they’re just time-wasting paperchasing.

Here’s Plateau Holdings, LLC, Waterfall Development Manager, LLC, Tax Matters Partner, Docket No. 12519-16, filed 5/14/19.

The report in question, the usual before-and-after appraisal, has two authors.

“…respondent urges that the Report is problematic because it represents the testimony of two experts, without making clear which expert is responsible for which portions. According to respondent, this could complicate the task of cross-examination.

“In the case of a co-authored report, we agree with respondent that both experts must testify in person and be subject to cross-examination. If the experts do not share all opinions or if they did not work collaboratively to reach those opinions, then that division of opinion or labor must be disclosed.” Order, at p. 2. (Citations omitted).

But the answer is to sweat the “experts” on the stand on voir dire (that’s checking out their qualifications and whether they are experts), finding out who did what and when and where and how, and whether they worked together. Tossing the report doesn’t get it.

And though their report valued two easements together rather than separately, and used allegedly dubious methodology, that’s not grounds to exclude. Rather, that’s a chance for the vigorous cross-examination and production of contrary, probative evidence at the trial.

If the experts flunk the voir dire, they can be tossed at that point. Even if they survive, their evidence may not withstand that “best legal engine for discovery of truth yet invented.”

So it’s time to get to work.


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: