Single Family Litigation Support

By: Patrick O'Connor
Submitted: 2008-03-04 22:17:13
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Single-family litigation support and expert witness testimony assists legal counsel and the property owner in obtaining a reasonable and just settlement. Providing an initial assessment of the strengths and weaknesses of a case provides insights into the strategy that is appropriate for the fact situation. In some cases it is appropriate to thoroughly and precisely document the issues and damages related to the case, even if the expense to do so is substantial. In other cases, particularly when the case is weak, it may make more sense to encourage early settlement to minimize expenses related to litigation. Single-family litigation support can provide guidance and documentation at key junctures in litigation involving a home or houses. Litigation regarding a home is often a emotionally charged; a skilled expert witness can provide counsel and the home owner impartial insights. By providing an accurate assessment of the fact situation early in the engagement, the expert witness helps to reduce the total costs to resolve the case and increase the probability of a quick settlement. Single-family litigation support typically involves divorce, condemnation, construction defects or a seller not disclosing known defects prior to a sale.

Single-family litigation support can include consulting and/or valuation and expert witness testimony. Initially hiring an appraiser as a consulting expert makes sense when legal counsel is uncertain with regard to the fact situation. Work product developed by a consulting expert is not discoverable. Work product developed by an expert witness is discoverable. Following are some of the types of support O’Connor & Associates can provide for single-family litigation:

• Assistance evaluating the case and the level of exposure or opportunity; A skilled appraiser is often able to provide meaningful insights regarding the merits of a case after investing a modest amount of time. Such an assessment allows the property owner and legal counsel to make prudent decisions regarding the case.
• Reviewing analysis or appraisals performed by third parties; The market value expressed in appraisals is always expected to be independent and objective. Appraisers produce quality work in the vast majority of cases. However, in some cases the bias or incompetence of the appraiser is obvious after a limited review of the appraisal report.
• Developing an appropriate measure of damages; The appropriate damage model is not always intuitive to legal counsel. Consider the case of a property with a defective foundation. In addition to the cost to resolve the physical problem with the foundation and any resultant damage, should the market value be reduced for construction management costs, vacancy during the period of construction, stigma, and entrepreneurial effort to induce an investor to purchase and renovate the property. Or does market data indicate that the discount in market value for a property with a defective foundation is simply the cost to fix the physical problems?
• Preparing an appraisal and developing an opinion regarding the amount of damages, if any exist; The standard of care when preparing an appraisal for an expert witness assignment is substantially higher than the standard of care for an appraisal prepared for refinancing. Comparable sales data needs to be reconfirmed and information in the report needs to be double checked for accuracy. The appraiser should assume opposing counsel or his appraiser will scrutinize the report to uncover any errors.
• In-depth research regarding complex issues such as whether there is a deleterious effect on the market value of a home after a slab has been repaired or whether the existence of PVC pipe (which has not failed) negatively affects the market value of a home; It is sometimes necessary to be creative when developing market data for such an assignment. There are no readily available comparable sales to document these types of issues. In some cases it may be possible to develop market data by using the matched pair technique with comparable sales. In other cases, consulting with real estate brokers, developers and investors can provide meaningful insights.
• Expert witness testimony at depositions and trial. Careful preparation is needed before providing testimony at deposition or at trial. The expert should review his work file prior to deposition. Both the work file and deposition transcript should be reviewed prior to testimony at trial. In many cases, counsel will meet with the expert witness prior to trial.

Most single-family litigation assignments are complex and require seasoned judgment. O’Connor & Associates depth and breadth of staff provide an invaluable resource for both simple and complex cases in single-family litigation. Our team of appraisers and expert witnesses have provided single-family litigation support and/or expert witness testimony for hundreds of cases. In one recent case involving a claim for damages related to mold involving approximately 20 apartment complexes in four states, O’Connor & Associates developed opinions (supported by voluminous documentation) refuting the plaintiffs claim that purported existence of mold had negatively affected rents and level of occupancy for the subject properties (within two weeks of being engaged). In addition to on-site inspections for each of the subject properties, O’Connor & Associates staff visited rent comparables and gathered voluminous supplemental data to document our conclusion.

O’Connor & Associates is the largest independent appraisal firm in the southwestern US and has over 40 full-time staff members engaged full-time in valuation and market study assignments. Their expertise includes valuing single-family and commercial real estate, business personal property, business enterprise value, purchase price allocation for businesses, valuation for property tax assignments, partial interest valuation, estate tax valuation, expert witness testimony and valuation for condemnation. They have provided litigation support to numerous attorneys, insurance companies and private parties.

Article source: Expert Articles