Expert Witness Blog

In THE REAL ESTATE CLIENT: VALUATION SERVES IMPORTANT MASTERS IN LITIGATION CASES, forensic accounting expert witness Richard M. Squar writes on minority interest:

A minority interest discount is applied to reflect the degree of absence of control or power over various business decisions of the partnership. It is common in partnership agreements of real estate limited partnerships to “limit” the ability of the limited partner to influence operations in the partnership, including management decisions, the ability to transfer limited partnership interests or substitute limited partners, the right to compel distributions, or the power to initiate liquidation of the partnership.

The discount for lack of marketability is concerned with the liquidity of the interest being valued. Liquidity is a measure of how quickly and easily the limited partnership interest can be converted into cash if the owner of the limited partnership interest wants to sell his/her investment.

Insurance expert witnesses may opine on insurance customs, insurance practices, malpractice insurance, surplus insurance and more. Here the Surplus Line Association of Illinois answers the question: What is surplus line insurance?

In order to understand what surplus line insurance is, it is helpful first to understand a few things about the insurance marketplace and to understand what surplus line insurance is not.

The first player in the marketplace we’ll discuss is the insurance company, sometimes referred to as an insurance carrier or insurer. The insurer is the company that actually writes the policy and accepts the risk that something will happen. They collect your premiums and those of other insureds and invest them. If a claim is made, they pay the claim from this pool of collected premiums.

Forestry expert witness Russell E. Carlson, RCA, BCMA, Tree Tech Consulting, writes on Guidelines for Protection of Trees on Construction Sites:

To preserve certain mature trees within a construction site some precautions must be taken to assure that neither the trunk, limbs nor root system of the tree are excessively damaged. The root system of a tree is the most vital and the most delicate part of the plant, and the most easily damaged.

The root system extends far from the trunk, often beyond the drip-line of the tree. The fine absorbing roots, those that collect water and nourishment for the tree, are located primarily within the top eight to twelve inches of the soil. (See Figure 1) The roots and the soil in this surface layer must be protected from injury.

What Is an Insurance Expert Witness?

The insurance expert witness can explain the processes behind the actions of an insurance company or agent, and can talk about industry standards of behavior and ethics. The insurance expert witness can also provide information about how coverage works, conditions under which coverage may be denied, and the appeals process in place for asking for reconsideration of insurance decisions. All of this information can be used to support one side or the other.

Like other witnesses, an insurance expert witness can be cross examined by opposing counsel. If the testimony has been especially effective, the opposing lawyer may attempt to undermine the credibility of the witness, or to shoot holes in the testimony. For example, the lawyer might remind the jury that the witness is expressing opinions, rather than stating facts, or might call the character of the witness into question. Opposing counsel may also ask about how much compensation the witness received, as juries may read a high compensation as a sign that the witness was “bought”.

In THE REAL ESTATE CLIENT: VALUATION SERVES IMPORTANT MASTERS IN LITIGATION CASES, forensic accounting expert witness Richard M. Squar writes on fair market value:

Having determined the aggregate net asset value of the limited partnership interest, various factors need to be considered in arriving at fair market value of the interest. These factors include the cash flow characteristics inside the partnership, the anticipation of future cash flow and ability to make distributions to partners, the economic circumstances regarding the assets and mortgages on the properties, the terms of the partnership agreement, and consideration of any special items that may effect the potential for profit or risk of loss.

There are two discounts applied to the aggregate net asset value in a business valuation in an attempt to quantify the above considerations: The minority interest discount (or discount for lack of control) and the marketability discount. Both lack of control and lack of marketability are inherent in limited partnership interests.

In The Value of a Construction Expert Witness, William Gulya, Jr., construction expert witness and President & CEO, Middlesex Trenching Company, writes:

The evidence and documentation involved in construction cases are numerous and varied, including building contracts, correspondence, emails, liens, claims, and a wide variety of notices. The expert witness should be able to analyze fact evidence, prepare a clear and concise expert report and other documentation, and handle himself in depositions and in court. Some cases require presentations using charts, models, photographs, and other such materials, which a competent expert should be able to prepare. In addition, an experienced expert witness who has handled similar cases in the past should have an in-depth knowledge of the legal regulations to which he or she must adhere.

It is the responsibility of the expert witness to advise the attorney based on the facts and circumstances of the case and provide a written report, which includes opinions and conclusions supported by the facts, evidence, OSHA regulations, best practices and industry standards. Experienced expert witnesses have an understanding of what could prove to be problematic or positive in the long run and advise their attorney client accordingly.

Subpoenas expert witnesses may opine regarding the process server’s work product. The National Association of Professional Process Servers has established the Standards, Best Practices and The Policy Manual. Although applicable only to members of this association, the Policy Manual is also published for public awareness and use. Here the association addresses The Role of Notary Public in a Process Service Office:

A Notary Public, whether employed in a process serving business, or not, must adhere to the state laws regarding Notary Publics within the jurisdiction where he or she has been commissioned. These duties and obligations transcend other duties that may be assigned by an employer.

Content A proof or affidavit of service must accurately state the date, time, place, and manner of service, and any additional information that would reflect how delivery of process or other legal document was made to a person or entity served. When required, a proof or affidavit of service should also reflect the description or relationship of that person to the person or entity served, and the military status of the person served.

A judicial summons expert witness may opine regarding the process server’s work product. The National Association of Professional Process Servers has established the Standards, Best Practices and The Policy Manual. Although applicable only to members of this association, the Policy Manual is also published for public awareness and use.

These guidelines address three important aspects of proofs or affidavits of service: content, signature(s) and record keeping. They are designed to ensure that the proofs or affidavits of service be completed and signed by the person making service. The traditional and fundamental components of proving service must be maintained. The process server must attest to the facts under penalty of perjury, or by sworn affidavit, and personally sign, or, where permitted by law, cause his or her signature to be affixed electronically to, the proof or affidavit of service.

It is not proper for a proof of service to be signed before completion, or signed in blank to be completed later. It is not permissible to sign the process server’s name to a proof of service on his or her behalf.