Expert Witness Testimony in Foreclosure Cases: Fact vs. Opinion

Disclaimer: This article is for educational purposes only and is not legal advice. Always consult a licensed attorney in your jurisdiction before relying on these ideas in your own case.

Courts often remind us that excluding expert testimony is a “drastic remedy.” But what they don’t say out loud is just as important: even if admitted, the judge has wide discretion in deciding how much weight to give the testimony. And that’s where many defense strategies either collapse—or break through.

Fact vs. Opinion: The Hidden Divide

The rules draw a quiet but crucial distinction between two types of expert testimony:

• Fact testimony. Based on technical knowledge, industry standards, and the application of those standards to concrete data. Judges tend to give this real weight.

• Opinion testimony. Conclusions or speculation offered by the expert. Courts often discount this heavily, since it intrudes on the judge’s role as the ultimate finder of law and fact.

The takeaway? Courts value facts far more than opinions. Expert testimony that defines industry terms, explains technical processes, or applies published standards is far more persuasive than sweeping conclusions.

How to Make Expert Testimony Count

If you want the court to consider your expert’s input, you must:

1. Identify specific issues in dispute. Don’t waste time on generic conclusions. Focus on concrete questions—Was consideration paid? Does the PSA meet statutory trust requirements? Who maintains the payment ledger?

2. Define key terms of art. Many foreclosure cases hinge on specialized language (“boarding,” “servicer,” “trustee,” “holder”). Put those definitions squarely at issue. If no one agrees what “loan boarding” really means, the judge must consider evidence clarifying it.

3. Build your narrative through discovery. Use the opposition’s discovery objections to show that the meaning of these terms is contested. Highlight contradictions in depositions and document production.

4. Frame the testimony around facts, not conclusions. For example, instead of an expert declaring “the trust doesn’t own the loan,” have them demonstrate that no transfer documents exist and that industry standards require such transfers. The conclusion then flows logically from admitted facts, not mere opinion.

Why Daubert Matters

Florida (like federal courts) follows the Daubert standard for expert evidence. That means expert testimony must be:

• Based on sufficient facts or data;

• The product of reliable principles and methods; and

• Reliably applied to the facts of the case.

A well-structured foreclosure defense leverages Daubert to make sure your expert is presenting verifiable, technical information—facts that judges can rely on, not opinions they can shrug off.

For a deeper dive, see The Daubert Expert Standard: A Primer for Florida Judges and Lawyers by Thomas S. Edwards and Jennie R. Edwards (Florida Bar Journal, March/April 2020, p. 9).

Bottom Line

In foreclosure litigation, expert testimony can be powerful—but only if presented as fact-based, technical, and grounded in industry standards. Judges rarely lean on expert opinions, but they do take notice of verifiable facts that clarify disputed issues.

Your job in building a defense is to force the definitions, standards, and technical questions onto the table—and then back them up with credible evidence through discovery. Done right, this shifts the court’s focus from opinion to fact, where your strongest arguments live.

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