Michael Rikon recently published an article in the New York Law Journal titled “The Expert Witness in Condemnation and Tax Certiori Cases” wherein he discusses the factors practitioners must consider in deciding whether and which expert witnesses to call in each case.
As Mr. Rikon points out, the two cases use two different valuation methodologies. In tax assessment cases, property is valued as is, while in condemnation proceedings, property is valued based on its highest and best use, regardless of its actual use. Additionally, a reasonable probability of rezoning can be considered in condemnation proceedings, which would require the calling of a zoning expert to testify in this regard. Mr. Rikon urges practitioners to view experts as the foundation of building blocks upon which your case is built. “A complicated appraisal should be predicated on separate reports and expert opinion,” he writes.
In deciding which experts to call, Mr. Rikon notes that it is advisable to use actual practitioners in the field of expertise, those with “mud on their boots,” as opposed to the expert witness who never leaves the confines of his or her office.
Under New York law, the expert should be permitted to offer an opinion on an issue that involves, “professional or scientific knowledge or skill not within the range of ordinary training or intelligence.” Daugherty v. Milliken, 163 NY 527, 533 (1900). It is essential that the proposed witness have actual knowledge or skill in the subject that sets him or her apart from other witnesses. Once the trial court qualifies the expert to testify with respect to a certain matter, that determination is not open to review unless in deciding the question the trial court made a serious mistake or committed an error of law or has abused its discretion. Meiselman v. Crown Heights Hospital, 285 NY 389, 398-99 (1941).
Finally, Mr. Rikon notes that under the Appraisal Rule, the expert witness is limited in their testimony at trial to the details set forth in their appraisal report. This allows the parties to prepare for trial with knowledge of each other’s valuations and the foundations and justifications thereof. Parisi v. State, 62 Misc.2d 378 (Ct. Cls. 1970). It is also important to note that under the Uniform Standards of Professional Appraisal Practice, draft reports must be preserved for five years, or at least two years after final disposition of any judicial proceeding.
The use of effective expert testimony can be a linchpin of success at trial and practitioners in both types of cases must carefully weigh and consider the benefits of such testimony in their case.
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