Real Estate Expert Witness Reports and Testimony

With many professions there are those who fall below the standard of care and whose actions cause damage.

In order to assess their liability, it is often a very difficult task imposed upon a Trial Judge. What about a neurosurgeon who may or may not have made a mistake? The answer is actually quite simple; “let’s ask another neurosurgeon”, but this time “someone who is an expert in the field, perhaps someone who teaches or is a professor of neurosurgery”.

The same thing happens with every profession: doctors, lawyers, accountants, engineers, and real estate agents.

Role of the Expert

The Expert is to offer assistance to the Trial Judge, not be an advocate for one of the parties, and not take over the role of the Judge.

How does the Expert do this?

The Expert writes a Report and that is provided to the client’s lawyer., who will then deliver a copy of the Report to the other parties in the lawsuit and the Court for review.

Testimony at Trial

Assuming that the case is not settled, the Expert Witness will be called to testify, which essentially means that they will be requested to identify their Report, examined under oath with respect to its contents, and then cross-examined by the other parties to the lawsuit.

Opinion in Report

The Expert will have to express an opinion. This is with respect to the standard of care that is appropriate under the circumstances, not whether or not the act and/or omission constitutes “negligence”. That is the decision of the Trial Judge. The Judge will assess the Report, apply the facts as determined at trial and draw a conclusion in law as to whether the individual’s conduct caused the damage and amounts to negligence in law.

The only Opinion that the Expert Witness can extend is to indicate whether or not the conduct itself falls below the appropriate standard of care for the profession.

Documentation under Consideration

The Report should identify and list any documents and other matters that were presented to the Expert and reviewed by them with respect to forming their Opinion.

This is a matter which could change over time. At the outset, the Expert has the Pleadings and the Affidavit of Documents for the parties. It is at this point that an Opinion may be sought by one of the parties hoping and expecting an early settlement.

Subsequently, the parties testify and present their evidence under oath at an Examination for Discovery. A Transcript may be ordered and a copy of that document presented to the Expert for further review.

It is at this point that that Expert’s Opinion may be confirmed, modified, altered or reversed completely. That’s following a detailed review of Transcripts.

Additionally, it might be noted that an Expert’s Opinion might be influenced by the actual testimony that they heard delivered at the Trial.

Brian Madigan LL.B., Broker

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