WHO CAN BE AN EXPERT WITNESS?

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WHO CAN BE AN EXPERT WITNESS? Virtually anyone including a party to the litigation in most cases.The issue is really credibility, which comes down to credentials, knowledge, demeanor and knowing what to expect when your opinion or credibility is attacked. The side issue of course is the credibility of the party or attorney who is presenting the expert witness and whether he/she knows how to elicit credible testimony on direct examination such that the Judge is truly enlightened rather than baffled with bulls–t.

I would caution TILA auditors and forensic reviewers about considering their position as either third party fact finder or as expert witness. I think you cannot credibly be both. The expert should be someone who can say they have reviewed the audit or review or analysis and they have done some research on their own and and have come to the following conclusions based upon a reasonable degree of certainty within the context of the finance markets, housing market and mortgage origination and processing industries. Thus the attack on the audit becomes a matter for another day. If you are stuck defending the audit you will never get to the point where you are expressing fresh, independent expert facts and opinions about the industry and about the loan in question.

WHY BE AN EXPERT WITNESS? First, because the usual expert in complex litigation (i.e., mortgage litigation cases involving securitization) will charge an average of $350-$600 per hour with a five hour minimum and an additional $2500 per travel day plus all out of pocket expenses. Such experts will charge $1500-$2500 for an Expert Declaration (which I offer, but don’t have the time to meet all the demand, hence the workshop to increase the number of people who can sign such a document and defend it under cross examination or deposition). Even with a comparatively light caseload, the income is significantly higher than other areas of service for distressed homeowners. Another reason is there are pitifully few of us who can serve as true experts that can defend our positions under questioning. So the market is wide open for a lot of experts to enter the fray.

WHAT IS EVIDENCE? While there are many fancy definitions, for the purposes of this post and most actual situations in the courtroom, evidence is anything the Judge states that he/she is allowing in as evidence or anything that is presented in an evidential hearing without challenge from the other side. This one point accounts for nearly every situation in which the lawyer or litigant lost. Lawyers for pretender lenders take control of the courtroom dialogue but “laying the foundation” when they are neither a witness nor even knowledgeable about the loan. So when the lawyer comes in and introduces himself and says he represents Wells Fargo, you might want to challenge that and say you want proof that he does in fact represent Wells Fargo, or executive Trustee Services or whoever they say they represent. If he says his client is the lender, you want to challenge that and ask the Judge if this is an evidentiary hearing so you can cross examine the attorney under oath as his testimony, changing him from lawyer to material witness. Most lawyers and litigants walk out open-mouthed not knowing what hit them. Well here is the answer: representations were made in court by an unsworn witness without any personal knowledge (go look up competency of witnesses) of the facts WITHOUT CHALLENGE — so the Judge took the representations as true (as though you were stipulating to them). A quick look would reveal to anyone that you lost as soon as those representations were made and not challenged. If instead, you said “Judge, I object. I have an expert report that concludes that the facts are different than what counsel is representing,” then you give the Judge an opportunity to inquire and to allow discovery and an evidentiary hearing. And from what we have seen so far, the pretender lenders cannot survive discovery much less an evidentiary hearing UNLESS YOU LET THEM.

Oh yeah, you better be right.  I should mention that in order to be an expert witness, you have to really know what you are talking about, be able to explain it in simple terms, and be strong enough to stay on message when challenged. That’s why you need the other seminars and boot camps that are being offered around the Country.

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