Guy Berry's Expert Witness Blog

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It might be pretentious for me,  the expert witness,  to be advising attorneys on when they should hire me.   The reason I am taking this risk is that after 200 cases,   I have seen lots of instances where had they hired me sooner,  our case might have gone differently.   As you know,  we sometimes win cases we should have lost.  And, have cases that by all rights,  we should have lost.  But,  does this have anything to do with hiring your expert sooner in the case.

I understand and respect the fact that part of your job is to not waste the client’s money on experts you might not use  or bring nothing to the table.  So,  when the case is in the early stages and before mediation,  you are hoping to settle early and avoid extra fees for your clients.  If this case drags on for several extra months (or years),  your agent “standard of care” expert’s fee will be a drop in the bucket if you have the right expert.

This is especially true if you are the plaintiff’s attorney since the complaint is so important.  It is even more important if you don’t have a lot of experience with real estate cases.   One of the misconceptions that I have heard over the years is that you really don’t need an expert since real estate deals are so easy to understand.  Don’t believe it.  During my many years of doing this,  I have seen:

 

  • Even the simplest of cases have nuances only a Real Estate Broker will understand or notice
  • The agent get named, and not the brokerage
  • The brokerage gets named and not the agent
  • The seller named but neither agent was named
  • Buyers failing to cross file against the seller and their agent and conversely the Seller failing to file against the Buyer and their agent
  • Letting certain parties out of the case before we have determined if that party is part of the causation.
  • The agent’s current brokerage named, even thought the event happened at his previous brokerage office
  • Knowing the difference between standard of practice and standard of care.
  • Not knowing how damages are determined on certain types of claims; actual damages, repair damages,  rescission rules,
  • The attorney not really understanding the different between a Seller’s agent duty and Buyer’s agent’s fiduciary duty
  • Naming the Homeowner’s Association instead of a Seller, even though the law and the contract make the Seller responsible for disclosures
  • Failing to convince the buyer why they need to name their own agent and brokerage, even if  the agent is a friend of the plaintiff
  • Failing to understand that giving the buyer an incomplete TDS form, gives the buyer a “get out of jail free card” with a 3 day right of rescission until they get a completed one
  • Not being familiar with the Salahutdin, Fields and other key cases because the attorney didn’t have the resources to spend a lot of time or money early in the case to do extensive research.
  • Forgetting that contract states that the client must first mediate before filing suit. The result is that the client loses their right to attorney fees,  even if they are the prevailing party.
  • I’ve even turned over rocks and found “smoking guns” in a case, which helped them to settle just before trial but should have settled at mediation a year sooner.
  • And many others …….

Don’t get me wrong, I am not beating up on attorneys.  Just the opposite. I am one of those rare individuals that highly respect attorneys and how they think.  My point here is that by waiting until the last minute  to designate” your expert might actually hurt your case.  Yes,  you saved your client some money,  but you didn’t give me or any other expert,  a chance to help win your case.

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