Witness Flashcards
A witness who testifies to what he has seen, heard, or otherwise observed is referred to as a/an:
- Observer
- Expert witness
- Fact witness
- Objective witness
Fact witness
You receive a subpoena asking that you produce all appraisal reports you have prepared in the past five years for property similar to the subject property in a current litigation. You know that to honor this subpoena, you will be revealing confidential information from past assignments. What is the most likely action you would take to avoid revealing this confidential information?
- Invoke the RECORDKEEPING RULE in USPAP
- Ask the opposing attorney file a motion to quash
- Have your personal attorney file a motion to quash
- Produce the appraisals, as a subpoena is the same as a court order
Have your personal attorney file a motion to quash
“The appraiser has the benefit of knowing the issues and can focus the appraisal to address them and adequately support all the necessary analyses and conclusions to ‘bulletproof’ the appraisal.” This statement describes one of the advantages of the _________ type of appraisal assignment.
- Practitioner - Unintentional
- Practitioner - Intentional
- Non-Practitioner - Intentional
- Non-Practitioner - Unintentional
Practitioner - Intentional
You receive a call from an attorney who is contemplating a new lawsuit regarding a landlord/tenant dispute where the lease contains an ambiguous purchase option for the subject property. You will need to determine the value to be used in the exercise of the purchase option. The tenant already has an appraisal with an abnormally low value. Which of the three types of appraisal assignments would this be?
- Practitioner - Unintentional
- Practitioner - Intentional
- Non-Practitioner - Intentional
- Non-Practitioner - Unintentional
Practitioner - Intentional
You receive a call from an attorney involved in litigation where appraisals have already been produced by each side. The attorney wants you to review both appraisals and advise him regarding their relative merits so he can develop a trial strategy. You will be preparing a USPAP STANDARDS 3 and 4 review of each appraisal as the major part of your assignment. Which of the three types of appraisal assignments would this be?
- Non-Practitioner - Unintentional
- Non-Practitioner - Intentional
- Practitioner - Intentional
- Practitioner - Unintentional
Non-Practitioner - Intentional
A witness whose testimony is based on scientific, technical, or other specialized knowledge is called a/an:
- Opinion witness
- Expert witness
- Appraisal witness
- Fact witness
Expert witness
An appraiser is subpoenaed to testify about an appraisal he prepared in the past which now is part of pending litigation. He was not retained by the lawyers specifically to prepare the appraisal for this case because the litigation issue developed after his appraisal was completed. Which of the following best described this situation?
- The appraiser will be testifying as a fact witness and be able to collect a nominal witness fee for his time on the witness stand.
- The appraiser will be testifying as an expert witness and will be able to collect a handsome hourly fee for the time spent on the witness stand.
- The appraiser is not an expert for this case but can charge his normal expert witness hour fees for his time on the witness stand.
- The appraiser will be testifying as a fact witness and will not be able to charge for his time on the witness stand.
The appraiser will be testifying as a fact witness and be able to collect a nominal witness fee for his time on the witness stand.
The appraiser who testifies at this level usually will have significant experience in court testimony and can be perceived as a ‘hired gun.’ “ This statement describes one of the disadvantages of the _________ type of appraisal assignment.
- Practitioner - Unintentional
- Practitioner - Intentional
- Non-Practitioner - Intentional
- Non-Practitioner - Unintentional
Non-Practitioner - Intentional
You are asked to assist an attorney in litigation related to an IRS challenge of a charitable contribution of real property on his client’s tax return. Which of the following would be a concern to you about taking on a litigation assignment related to the IRS?
- The appraisal may require a retrospective value, which requires more research than a current effective date.
- A negative IRS appraisal review could have significant negative ramifications on your future appraisal career.
- Both choices are incorrect
- The first two choices are correct.
The first two choices are correct.
According to the definition of a “Lay Witness” in Federal Rule 701, which of the following is NOT a criterion for an acceptable opinion expressed by the witness?
- Opinion not based on scientific, technical, or other specialized knowledge within the scope of Rule 702
- Opinion helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue
- Opinion developed through the use of a scientific instrument
- Rational opinion based on the witness’ perception
Opinion developed through the use of a scientific instrument
Two years ago, you prepared an appraisal of property owned by a husband and wife. The couple has decided to get a divorce, and the attorney representing the husband wants you to testify about your previous appraisal. Which of the three types of appraisal assignments would this be?
- Practitioner - Unintentional
- Practitioner - Intentional
- Non-Practitioner - Intentional
- Non-Practitioner - Unintentional
Practitioner - Unintentional
You receive a call from an attorney who is contemplating a new lawsuit regarding a landlord/tenant dispute where the lease contains an ambiguous purchase option for the subject property. You will need to determine the value to be used in the exercise of the purchase option. The tenant already has an appraisal with an abnormally low value. Which of the three types of appraisal assignments would this be?
- Practitioner - Unintentional
- Practitioner - Intentional
- Non-Practitioner - Intentional
- Non-Practitioner - Unintentional
Non-Practitioner - Intentional
If, while on the witness stand, an appraiser is asked to provide her opinion of the appraisal performed for the other side, and she makes a few statements about the merits of the other appraisal, what has just happened?
- She has delivered an oral appraisal review report.
- If she does not have a workfile on the other appraisal, she has violated USPAP.
- She has given opposing counsel an opportunity to impeach her professionalism and character, diminishing the credibility of her appraisal.
- All of the above.
All of the above.
You are reviewing an appraisal in litigation. The report date is two years ago, with an effective date a few weeks earlier. In your review activity, you discover three very comparable sales near the subject not mentioned in the report. One closed two months before the report date; one closed one month after the report date; and the other closed nine months after the report date. Which of these sales could you use to claim a deficiency in the appraisal under review?
- All three can and should be used.
- Only the first, as it was public knowledge as of the report date.
- The first and second, because they both reflect the current market.
- None of the above; the appraisal had sufficient support without these sales.
Only the first, as it was public knowledge as of the report date.
An attorney requests your assistance in developing a trial strategy for a case involving five different commercial properties in four different states. There has been contamination on all of the properties by a tenant, and the landlord is suing for damages. You will not prepare an appraisal, but will rely on appraisals prepared by seven other appraisers. You will assist the attorney in understanding the appraisals for both sides and help design a trial strategy. You will then assist in preparing questions for both direct and cross examinations. This scenario requires you to be a:
- Testifying Fact Witness
- Testifying Expert Appraiser
- Consulting Expert Appraiser
- None of the above
Consulting Expert Appraiser
You are on the witness stand testifying about an appraisal you performed for this litigation. On cross examination, opposing counsel asks, “Do you think that the comparables you selected are superior to the comparables selected by my appraiser?” You answer, “Yes.”
- This is an appropriate answer, as you can defend your appraisal report so you are not advocating for retaining counsel’s client.
- This in an insufficient answer, as you will need to explain why your comparables are superior.
- You have just performed an oral appraisal review report on the other appraisal and must have previously prepared a separate workfile for that “assignment,” must state the additional information required under STANDARD 3, and must place a signed certification in your workfile.
- You are not permitted to criticize another appraiser while on the witness stand.
You have just performed an oral appraisal review report on the other appraisal and must have previously prepared a separate workfile for that “assignment,” must state the additional information required under STANDARD 3, and must place a signed certification in your workfile.
Which of the following benefits can performing a USPAP STANDARDS 3 and 4 appraisal review on an appraisal used in litigation provide to the attorney who retains you?
- Help the attorney understand the weaknesses of the opposing counsel’s appraisal
- Help the attorney see where his own appraiser’s report needs further support
- Provide “peer review” of the attorney’s appraisal to help withstand a challenge
- All of the above
All of the above
You have been asked to review an appraisal being used in litigation. The date of the appraisal is two years ago. You will be testifying in court about the reliability of the appraisal. In your review, you will reference compliance with USPAP. Which edition of USPAP will you need to use to determine compliance?
- The current edition of USPAP.
- The edition of USPAP in effect as of the date of the appraisal report.
- The edition of USPAP in effect as of the date of value.
- The current edition for the review requirements and the edition in effect on the date of the appraisal report for the appraisal requirements.
The current edition for the review requirements and the edition in effect on the date of the appraisal report for the appraisal requirements.
You are serving as a consulting appraiser, helping an attorney with a case which involves defective construction on an apartment building. The attorney asks you to prepare an appraisal review of the opposition’s appraisal report so she can find flaws to pursue. Can you fulfill this request?
- No. As an advocate you cannot also perform an appraisal service such as an appraisal review.
- Yes. An appraisal review does not fall under the appraisal services which would conflict with an advocacy assignment.
- Yes. There is no conflict with an advocate preparing an appraisal review report, oral or written, in the same assignment.
- That question is still unresolved, and you should consult your personal attorney.
That question is still unresolved, and you should consult your personal attorney.
You are retained by an attorney to prepare an appraisal and explain your appraisal report and conclusions to the court on the witness stand. Which of the three types of witness discussed in the course materials does this require?
- Testifying Fact Witness
- Testifying Expert Appraiser
- Consulting Expert Appraiser
- None of the above
Testifying Expert Appraiser
Which of the following statements reflects the basic rules for testifying and consulting experts?
- If the expert is testifying, all communications are discoverable which are not otherwise privileged, such as “work product of the attorney.”
- If the expert is only consulting, the work done for the attorney is part of the attorney’s work product and is not discoverable.
- If a testifying expert uses a part of the consulting expert’s work, then the work of the consulting expert is discoverable.
- All of the above
All of the above
Which of the following questions of the appraiser expert witness during testimony may be most valuable for the case?
- Questions from the other appraiser
- Questions from the judge
- Cross examination
- Direct examination
Questions from the judge
Which of the following terms best describes the written questions prepared for opposing sides in litigation that must be answered in writing and under oath?
- Deposition
- Discovery
- Interrogatories
- Disposition
Interrogatories
Opposing counsel made a request to the judge before trial to exclude certain evidence, which may prohibit an appraisal from being admitted into evidence. This request is called a:
- Petition of Exclusion
- Request for Variance
- Motion to Exclude
- Motion in Limine
Motion in Limine
This date is crucial for the appraiser expert witness to know because missing this date could result in the appraisal report being ruled inadmissible:
- Trial date
- End of discovery
- Deposition date
- Formal complaint filing date
End of discovery
The term “voir dire” refers to:
- Defendant is required to produce the stipulated documents.
- Witnesses are to be excluded from the courtroom until it is their time to testify.
- Investigation into the qualifications of a proposed expert witness.
- The French Restaurant where Counsel will meet for lunch during recess.
Investigation into the qualifications of a proposed expert witness.
According to the article authored by Jim McElhaney, the attorney looking for an expert witness should look for someone who:
- Has a likeable personality
- Exhibits strong persuasive skills
- Loves to explain things to other people
- Possesses excellent technical skills
Loves to explain things to other people
The primary role of the expert witness when testifying in court is described by Lubet as:
- Technician
- Diplomat
- Teacher
- Advocate
Teacher
Ted Whitmer, MAI, Esq., gave a list of four areas where appraisers are most likely to encounter problems while serving as expert witnesses. Which of the following is NOT included in the list?
- Lack of Legal Knowledge
- Insufficient Data
- Applicable Theory
- Competency & Ethics
Lack of Legal Knowledge
An appraiser admits on the witness stand that his compensation is contingent upon the outcome of the case. Which of the following four problem areas would most likely cause his appraisal to be ruled inadmissible?
- Correct definitions
- Insufficient data
- Applicable theory
- Competency and ethics
Competency and ethics
According to Lubet, which of the following would provide the most valuable background and expertise for an appraiser expert witness?
- An internship in a law firm
- An elected city council position in the same community as the subject property
- Appraisal office manager
- A faculty position in a community college
A faculty position in a community college
The most important principle regarding the ethics of the appraiser expert is:
- The appraiser should not be concerned with who wins the case
- The appraiser needs to protect the confidentiality of retaining counsel’s communications
- The appraiser should not speak to the judge ex parte
- The appraiser should not work for an attorney who is opposing a previous client in court
The appraiser should not be concerned with who wins the case
According to Ted Whitmer, MAI, one of the most effective ways to totally discredit a witness is to catch:
- A math error in the income approach
- A serious problem with one of the comparable sales
- An illogical leap to a conclusion in the reconciliation
- An ethical blunder by the appraiser
An ethical blunder by the appraiser
You are appraising a fully stabilized small office building with no vacancies and five long-term market rate leases in place. You elect to use a 10-year Discounted Cash Flow analysis in your Income Approach and base your conclusion primarily on that approach. Which of the following four problem areas would most likely cause your appraisal to be ruled inadmissible?
- Correct definitions
- Insufficient data
- Applicable theory
- Competency and ethics
Applicable theory
The ETHICS RULE of USPAP includes three sections. Which of the following is one of them?
- Jurisdictional Exception
- Competency
- Scope of Work
- Conduct
Conduct
You are purging your old files. You have an appraisal report that was prepared for litigation dated six years ago. The case was decided at District court three years ago. It was appealed, and the appeal is still pending. Your responsibility about keeping this workfile is:
- You can destroy it, as the report was issued more than five years ago
- You can destroy it, as the case was decided three years ago
- You will be able to destroy it as soon as final disposition occurs
- You must keep it for two years after final disposition
You must keep it for two years after final disposition
Under cross examination, an appraiser expert witness makes the following statement: “I gave the property owner the benefit of the doubt.” This would be an example of:
- Sound reasoning
- Reverse advocacy
- An unbiased opinion
- Proper procedure when retained by the government
Reverse advocacy
Which of the following actions is LEAST likely to be considered unethical for an expert witness to do during attendance in the courthouse when the trial is underway?
- Speaking to the judge during the lunch hour as they ride the elevator to the ground floor
- Chatting with one of the jurors in the hallway during a break
- Sitting with retaining counsel at counsel’s table during a recess
- Being argumentative with opposing counsel during cross examination
Being argumentative with opposing counsel during cross examination
Which of the following four items is NOT an ethics violation in the Conduct section of the USPAP ETHICS RULE?
- Bias
- Hypothetical condition
- Advocacy
- Misleading communications
Hypothetical condition
You have a request from counsel to “Let me know the value but don’t write a report.” Your response should be:
- You must refuse, as you cannot give just an oral report.
- You must refuse because you cannot give an oral report unless you have completed a written report first.
- You can comply because you need a complete workfile only before delivering an oral report.
- You can comply, but you need to follow it with at least a Restricted Use Report.
You can comply because you need a complete workfile only before delivering an oral report.
Talking with which of the following would create an impression of a bias opinion?
- Opposing counsel
- Juror
- Judge
- Retaining counsel
Retaining counsel
Which of the statements below is a recommended way to avoid ethical violations?
- Experts should not serve in cases where there is a potential conflict of interest.
- Experts should avoid contingent fees.
- Experts should conduct an honest and complete investigation.
- All of the above.
All of the above.
An appraiser’s testimony should be
- towards the Defense
- towards the retaining council
- neutral
- towards whatever party they feel is correct
neutral
The COMPETENCY RULE requires that an appraiser be competent in which of the following areas?
- Methodology
- Property type
- Geographic location
- All of the above
All of the above
You are asked by retaining counsel to appraise a property for litigation using a hypothetical condition stating that the highest and best use is as a 100-room resort hotel. The property is more than 100 miles away from an interstate highway and 120 miles from the nearest population center of more than 10,000 persons. There are no recreational attractions in the area. The major economic activity used to be mining, but the mines closed over 30 years ago. Your response to this situation is:
- You invoke the JURISDICTIONAL EXCEPTION RULE and do the appraisal.
- You invoke a Hypothetical Condition and do the appraisal.
- You invoke an Extraordinary Assumption and do the appraisal.
- You decline the assignment, as you believe that the use of the required hypothetical condition would produce a result that is misleading.
You decline the assignment, as you believe that the use of the required hypothetical condition would produce a result that is misleading.
Which of the following examples meets the formal definition of a “report” in USPAP that would require a workfile and signed certification?
- The host at a party knows you are an appraiser and asks if you think his home is still worth what he paid for it 10 years ago. You answer, “Sure.”
- You have written a 125-page report following extensive research on a subject property.
- You are testifying in a deposition about a property you have researched but about which you have not yet written a report.
- All of the above.
All of the above.
You are asked to perform an appraisal for litigation involving a federal tax-related issue. The IRS regulations state that the date of value must be 35 months ago. Which is the best way to express your opinion of value?
- The market value of the subject was . . .
- The market value of the subject is . . .
- The retrospective market value of the subject was . . .
- The retrospective market value of the subject is . . .
The retrospective market value of the subject was . . .
In engagement negotiations for a litigation assignment, retaining counsel tells you he is intending to collect a fee of 30 percent of the final award and expects at least a seven-figure settlement. He says that if your appraisal helps him win the case, he will give you a nice bonus out of his fee. Which of the following would NOT be permitted?
- You structure your fee to be an hourly rate of $350, billed and paid monthly.
- You structure your compensation to be a flat fee of $50,000 due when the appraisal report is delivered.
- You structure your fee to be a percentage of the fee retaining counsel is to receive from the award by the Court, to be paid within 10 days of the court’s decision.
- You turn down the assignment, as it would result in unethical compensation.
You structure your fee to be a percentage of the fee retaining counsel is to receive from the award by the Court, to be paid within 10 days of the court’s decision.
You are testifying in court about the appraisal you prepared for litigation. Opposing counsel approaches you with a copy of USPAP in his hand. Which of the following is likely to happen next?
- He is going to congratulate you on fully complying with USPAP.
- He is going to have you read part of USPAP aloud and evaluate part of your appraisal based on what you have just read into the record.
- He is going to move that your appraisal and testimony be ruled inadmissible.
- Both the second and third choices are likely.
Both the second and third choices are likely.
You are appraising a property that is zoned industrial. Retaining counsel instructed you to appraise it as though it were zoned residential. Your investigation indicates that rezoning is a reasonable expectation, so you decide to accept retaining counsel’s instruction. To do so, you would need to invoke a/an:
- Hypothetical condition
- Extraordinary assumption
- Both a hypothetical condition and an extraordinary assumption
- Neither is required because the rezoning is highly probable
Hypothetical condition
In a litigation appraisal assignment, you are instructed by retaining counsel to omit the ownership and sale history of the subject because it would “confuse the issue” to know that the property had transferred four times in the previous three years. The attorney instructs you to invoke the JURISDICTIONAL EXCEPTION RULE to justify omitting this required part of the report. Which of the following is true?
- You have received legal instructions from an “officer of the court” and can invoke the JURISDICTIONAL EXCEPTION RULE.
- You need to search for the statute or regulation which requires the omission in this type of litigation and reference it in your report.
- You must petition the judge for a court order granting permission to omit this portion of the report.
- You should ask retaining counsel to provide the statute, regulation, or court order which would preclude the appraiser from complying with this part of USPAP.
You should ask retaining counsel to provide the statute, regulation, or court order which would preclude the appraiser from complying with this part of USPAP.
In litigation, when an appraisal is submitted for evaluation by the court, what can be the outcome of that evaluation?
- The appraisal will be found satisfactory and be admitted as evidence.
- The appraisal will be found deficient and less weight given to it as evidence.
- The appraisal will be found deficient and ruled inadmissible by the judge.
- Any of the above could happen.
Any of the above could happen.
You have just finished providing testimony in a deposition about an appraisal report you finished three weeks ago and want to update your workfile with this most recent activity. Which of the following MUST you do to be USPAP compliant?
- Write a summary of your testimony to include in the file.
- Include a copy of the court reporter’s transcript in the file to serve as your summary of the oral report.
- Sign and date a new Certification for the workfile regarding the oral report.
- Either of the first two choices
Either of the first two choices
Which of the following is “probably the most frequently encountered ‘quicksand’ that an appraiser expert witness will encounter during testimony”?
- Getting in a heated argument with opposing counsel on cross examination
- Forgetting important parts of the analysis of the appraisal
- Expressing an opinion about the appraisal prepared for the opposition
- Being accused of misrepresenting the credentials on the appraiser’s Curriculum Vitae
Expressing an opinion about the appraisal prepared for the opposition
In the court case where environmental contamination was the issue, which part of USPAP did the court specifically cite as the basis for its decision?
- STANDARD 1 - Dealing with the appraisal
- STANDARD 2 - Dealing with the appraisal report
- Advisory Opinions dealing with the methodology
- Frequently Asked Questions dealing with the specific issue
Advisory Opinions dealing with the methodology
You have been retained to serve as a litigation consultant for a lawyer. You are helping him develop questions for cross-examination of the appraiser for the opposition. He asks that you prepare a USPAP compliant review of the appraisal performed for the opposition. Which of the following is the BEST response?
- You can accept the assignment, as there is no conflict.
- You must reject the request to prepare the review because there is a conflict.
- The question about whether developing cross examination questions is “advocacy” prohibiting the appraisal review is unresolved at this time.
- None of the above is correct.
The question about whether developing cross examination questions is “advocacy” prohibiting the appraisal review is unresolved at this time.
When must you include a separate Certification in the workfile for an oral report?
- Any time you provide an oral report, a separate Certification for that oral report must be put in the workfile.
- You only need a Certification for an oral report if you have not previously prepared a written report containing the proper Certification.
- The separate Certification is necessary only for an oral report at a deposition.
- The separate Certification is necessary only for an oral report at a trial.
You only need a Certification for an oral report if you have not previously prepared a written report containing the proper Certification.
You are preparing a report for a divorce case. Retaining counsel represents the husband in the case. Who should you include as an intended user?
- Husband
- Wife
- Retaining counsel
- The Court
Retaining counsel
An attorney has contacted you for an expert witness assignment. She indicates that she needs you to appraise a property which has environmental contamination and is the subject of litigation. The attorney wants you to appraise the property and ignore the environmental contamination in your report. Based on Advisory Opinion 19, which response below would be FALSE?
- You could not accept the assignment.
- You could accept the assignment on the condition that you identified the environmental contamination and appraised the property using the hypothetical condition that the contamination did not exist.
- You would need to describe the condition as it exists and make it clear in the written and oral reports that the appraisal conclusions are not valid if the contamination exists, which it does.
- Full disclosure would need to be made to distinguish between what is real and what is “hypothetical.”
You could accept the assignment on the condition that you identified the environmental contamination and appraised the property using the hypothetical condition that the contamination did not exist.
These assignment conditions would not be acceptable. You could accept the assignment on the condition that you identify the environmental contamination and appraise the property using the hypothetical condition that the contamination does not exist. However, you would need to describe the condition as it exists and make it clear in the written and oral reports that the appraisal conclusions are not valid if the contamination exists, which it does. Therefore, the value conclusion is a theoretical value that the court may use to determine damages, but full disclosure would need to be made to distinguish between what is real and what is “hypothetical.”
You have been asked to provide an appraisal for use in litigation, but the attorney did not specify the definition of value you were to use, so you used the standard market definition from FIRREA used for mortgage underwriting appraisals. While you are testifying in court, the opposing attorney points out that the state statutes require that a different definition of market value be used. He tells the judge your appraisal should be excluded because it does not conform to the state statutes. Which statement below is FALSE?
- Retaining counsel is responsible for the error, so it is not your fault.
- Using the wrong definition could be a fatal error to the report.
- The appraisal may be excluded if the judge believes the error was significant.
- The weight attributed to the evidence of your appraisal might be reduced.
Retaining counsel is responsible for the error, so it is not your fault.
You are appraising a property for a probate court and have to set your fee. Which of the following would be permissible?
- A flat fee like any other appraisal assignment
- An hourly fee based on time spent, PLUS direct expenses
- A percentage fee based on the appraised value
- Any of the above is permissible
Any of the above is permissible
In a probate court case, the court can instruct you to use a fee based on the percentage of appraised value. Some state probate courts are authorized to do so. This would be a jurisdictional exception. You would need to explain in your report why your fee is not in compliance with USPAP. Thus, any of the choices would be permissible.
Which of the following sources of instruction would NOT be a basis for the JURISDICTIONAL EXCEPTION RULE in an appraisal prepared for litigation?
- Statute passed by the state legislature
- Regulation approved by the FDIC
- Court order from a presiding judge at the trial
- Written instructions from retaining counsel
Written instructions from retaining counsel
You have a client for whom you perform appraisal reviews. The client only wants to have a verbal conversation with you on the results of the reviews, after which he pays your fee. What must you do in this situation to comply with USPAP?
- Prepare an appraisal review workfile to adequately support your oral report.
- Include in the workfile a summary of what was expressed in the oral report.
- Include a signed and dated Certification in the workfile covering the oral report.
- All of the above.
All of the above.
Under the Yellow Book requirements, which statement below is true?
- The appraisal fee must be competitively bid with at least three appraisers.
- The appraiser who testifies in court must have personally verified each comparable sale.
- The sales history of the subject must be investigated for at least five years.
- The appraisal must have a minimum of six comparable sales.
The appraiser who testifies in court must have personally verified each comparable sale.
You have delivered an appraisal report prepared for a government agency. The agency has instructed you to provide the appraisal report to other government agencies. Does this instruction create a Jurisdictional Exception to the Confidentiality section of the ETHICS RULE?
- No. You would need to refuse the request under any condition.
- No. The agency is your client and can instruct you to deliver the report to anyone it wishes.
- Yes. The official policy of the government agency would give you a basis for a Jurisdictional Exception.
- Yes. But you would still need to obtain your client’s permission in writing before releasing the appraisal report.
No. The agency is your client and can instruct you to deliver the report to anyone it wishes.
You have given an oral report in a trial about an appraisal you prepared for that litigation. Which statements are TRUE?
- You must have either a summary of your oral report (testimony) or a copy of the transcript in the workfile.
- You must have a signed and dated Certification for the oral report in your workfile.
- Both statements are true
- Neither statement is true
You must have either a summary of your oral report (testimony) or a copy of the transcript in the workfile.
You are on the witness stand, under oath. The opposing attorney asks you to render an opinion of value using a hypothetical condition. You believe the hypothetical condition is totally unreasonable and you will not be delivering a credible conclusion if you use it. USPAP prohibits using a hypothetical condition in this manner, so you refuse to do so. The judge then orders you to answer the question using the unreasonable hypothetical condition. How should you respond to the judge’s instructions?
- You decline to answer and risk being held in contempt of court.
- You ask for a recess so you can call your personal attorney for advice before answering.
- You answer the question with a statement “for the record” that you are answering “under protest.”
- You answer without hesitation because the order from the judge is considered “law” for the purpose of the JURISDICTIONAL EXCEPTION RULE.
You answer without hesitation because the order from the judge is considered “law” for the purpose of the JURISDICTIONAL EXCEPTION RULE.
You have appraised a property for Attorney Smith, who represents the plaintiff in litigation for which your appraisal has been performed. You are then approached by Attorney Jones, the attorney representing the defendant in the same litigation. He wants you to prepare a new appraisal of the subject property for his side. Which of the following statements is FALSE?
- You could not accept the assignment, as you already have a client in the pending litigation.
- You would not be able to use any confidential information obtained from the first appraisal in the second appraisal.
- The confidential information learned in the first appraisal would need to be considered “not material” to arriving at a credible conclusion.
- The second client would need to be told about the first appraisal before you accepted the second assignment.
The confidential information learned in the first appraisal would need to be considered “not material” to arriving at a credible conclusion.
Which court case addressed the use of a new polygraph test that established the principle that expert witness testimony must use technology which has been “sufficiently established to have gained general acceptance in the particular field in which it belongs”?
- Frye v. United States - 1923
- Daubert v. Dow Pharmaceuticals - 1993
- GE v. Joiner - 1997
- Kumno Tire v. Carmichael - 1999
Frye v. United States - 1923
What is the name of the crucial 1993 court case from which came the basic criteria for evaluating expert witness testimony?
- Daubert v. Merrell Dow Pharmaceutical
- Frye v. United States
- GE v. Joiner
- Kumho Tire v. Carmichael
Daubert v. Merrell Dow Pharmaceutical
Which court case dealt with the cause of birth defects and is considered the pivotal case which established the guidelines currently used for admitting expert testimony into federal and most state courts?
- Frye v. United States - 1923
- Daubert v. Dow Pharmaceuticals - 1993
- GE v. Joiner - 1997
- Kumho Tire v. Carmichael - 1999
Daubert v. Dow Pharmaceuticals - 1993
Which of the following court cases provides a good example of the application of the Daubert tests to a real estate appraisal?
- Frye v. United States - 1923
- US v. 14.38 Acres of Land - 1996
- GE v. Joiner - 1997
- Kumho Tire v. Carmichael - 1999
US v. 14.38 Acres of Land - 1996
Which of the following is NOT one of the four parts of the Daubert tests for expert witness testimony?
- Included in the Uniform Standards of Professional Appraisal Practice
- Peer-reviewed or published in technical/professional publications
- Statistical rate of error of methodology is known or predictable
- Generally accepted methodology within the scientific or technical discipline
Included in the Uniform Standards of Professional Appraisal Practice
The Daubert v. Dow Pharmaceutical case was a groundbreaking case which has had a significant effect on the admission of expert testimony in the United States.
- TRUE
- FALSE
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TRUE
The Federal Rules of Evidence, which govern the use of expert testimony, were instituted:
- In the United States Constitution in 1787
- In the 14th Amendment after the Civil War
- In 1975, after the Watergate scandal
- In common law from England in the 1600’s
In 1975, after the Watergate scandal
Which is the court case dealing with expert witness testimony outside of the “scientific” disciplines that affirmed that the rules for the gatekeeper to use to include or exclude expert witness testimony should apply to all experts who base their testimony on “scientific, technical, or other specialized knowledge”?
- Frye v. United States - 1923
- Daubert v. Dow Pharmaceuticals - 1993
- GE v. Joiner - 1997
- Kumho Tire v. Carmichael - 1999
Kumho Tire v. Carmichael - 1999
Which court case dealt with an on-the-job cancer claim and confirmed the principle that the trial judge is to serve as a gatekeeper of expert testimony and that the trial judge’s decisions are not subject to appeal?
- Frye v. United States - 1923
- Daubert v. Dow Pharmaceuticals - 1993
- GE v. Joiner - 1997
- Kumho Tire v. Carmichael - 1999
GE v. Joiner - 1997
What is meant by the reference to the judge in a trial as a “gatekeeper”?
- The judge determines who gets to sit in the gallery in the courtroom.
- The judge determines what lawsuits get filed in the Court Clerk’s office.
- The judge determines what expert witness is permitted in the trial.
- The judge determines who is acceptable to serve on a jury.
The judge determines what expert witness is permitted in the trial.
Why is Federal Rule 26 considered the most important one in the Federal Rules of Civil Procedure?
- It directs the attorney regarding where and how to select the expert witness for a given litigation assignment.
- It prohibits the expert witness from expressing improper opinions during trial.
- It provides guidance for how the expert witness should respond when receiving a subpoena.
- It describes what the expert witness is required to include in the report to ensure admissibility.
It describes what the expert witness is required to include in the report to ensure admissibility.
Which of the Federal Rules of Civil Procedure is most important for the expert witness to understand?
- Rule 16 - Pretrial Conferences; Scheduling; Management
- Rule 26 - General Provisions Governing Discovery; Duty of Disclosure
- Rule 30 - Deposition Upon Oral Examination
- Rule 45 - Subpoena
Rule 26 - General Provisions Governing Discovery; Duty of Disclosure
You are preparing an appraisal report to be used in litigation. In putting in the required documents addressed in Rule 26 of the Federal Rules of Civil Procedure, you consider the following items in your past: Book written seven years ago; journal article published 12 years ago; deposition testimony in a case three years prior; trial testimony given one year ago. Which of the above would you be required to include in your appraisal report for use in trial?
- Book, journal article, deposition testimony, trial testimony
- Book, journal article, trial testimony
- Journal article, deposition testimony, trial testimony
- Book, deposition testimony, trial testimony
Book, deposition testimony, trial testimony
You are appraising a property for litigation. Retaining counsel tells you that discovery ends on June 30th. Your report is completed and delivered to retaining counsel on July 5th. What might be the result of this difference between the end of discovery and your delivery date?
- Your report may not be admissible in the trial.
- Opposing counsel will have less time to develop a response to your appraisal report.
- You will probably have fewer assignments from this attorney in the future.
- All of the above.
All of the above.
You are being deposed. The attorney interrogating you asks a number of questions. Which of the following questions would you be able to refuse to answer without risking discipline from the Court?
- What traffic tickets have you received since you were 18 years old?
- How many other appraisals on similar property have you completed in the last 10 years?
- What was the lowest grade you received in college for a business related course?
- None of the above; you would be required to answer each of them.
None of the above; you would be required to answer each of them.
Which of the following is the purpose of the Federal Rules of Civil Procedure?
- Establish rules regarding the admission and use of evidence in a Federal trial.
- Establish rules governing the conduct of civil actions in a Federal court.
- Ensure that parties in a trial behave in a civil manner rather than becoming hostile during the trial.
- Distinguish between the procedures in a civil court and a criminal court.
Establish rules governing the conduct of civil actions in a Federal court.
During your first deposition as an expert witness, retaining counsel objects to a question raised by opposing counsel. You attempt to answer the question, but retaining counsel instructs you not to do so. According to Rule 30, the only basis retaining counsel has for requiring you to withhold your answer is:
- To preserve a privilege about confidential information
- To enforce a limitation that the trial judge has previously imposed
- To stop opposing counsel from conducting the deposition in a manner intended to embarrass you
- Any of the above would provide legitimate basis for the instruction not to answer
Any of the above would provide legitimate basis for the instruction not to answer
In preparation for trial, you are going to be deposed by opposing counsel. You are to have your appraisal report completed by June 30th. Based on Federal Rule 26, which date would be acceptable for scheduling the deposition?
- June 15
- July 5
- July 30
- Either July 5 or July 30
Either July 5 or July 30
You are asked to review an appraisal which was prepared for litigation. Trial is scheduled to start on November 30, and the deadline for discovery was September 1. The appraisal report was delivered to retaining counsel by the opposition on August 28 and to you on September 10. You are to prepare an appraisal review report to be used as a rebuttal report and you will be expected to testify in trial. What is the latest date that you can deliver your appraisal review report to retaining counsel?
- September 27
- October 1
- September 1
- November 30
September 27
In a deposition, the appraiser expert witness should state clearly that he or she will not waive the right to review and correct the transcript of the deposition. Why?
- The right to read and correct the transcript must be affirmed by the deponent to preserve this right.
- This gives the deponent the right to file a motion to appeal statements made in the testimony.
- This provides a transcript which can be used as the summary of the oral report for the appraiser’s workfile.
- Both the first and third choices are correct.
Both the first and third choices are correct.
Which of the following statements is INCORRECT about the gatekeeper function of the trial judge?
- The gatekeeper principle was clearly established in the Daubert v. Dow Pharmaceuticals case.
- The gatekeeper principle was codified in the Federal Rules of Evidence, Rule 702.
- The gatekeeper principle was upheld in the GE v. Joiner case.
- Both federal courts and all state courts are bound by the tests established in the Daubert v. Dow Pharmaceuticals case.
Both federal courts and all state courts are bound by the tests established in the Daubert v. Dow Pharmaceuticals case.
According to Rule 702 in the Federal Rules of Evidence, the trial judge, as gatekeeper, can determine whether an appraiser put forth by retaining counsel will be permitted to testify. Which of the following is one of the tests based on Rule 702 that the judge can apply?
- The testimony is based upon sufficient facts or data.
- The testimony is the product of reliable principles and methods.
- The witness has applied the principles and methods reliably to the facts of the case.
- All of the above are included in the relevant tests.
All of the above are included in the relevant tests.
According to Rule 608 of the Federal Rules of Evidence, a witness may be impeached based on:
- Personal character defects
- Specific misconduct
- Professional incompetence
- Any of the above
Any of the above
According to Federal Rules of Evidence, Rule 704, what is the one opinion that an expert witness may NOT express in his or her testimony?
- Opinions about the opposing counsel’s style of questioning
- Opinions about the other appraiser’s adjustments to comparable sales
- Opinions about the ultimate issue of the trial
- Opinions about the judge’s ruling on an objection
Opinions about the ultimate issue of the trial
You are presenting testimony about your appraisal. As you begin, opposing counsel objects that your market study was based on a market survey by a national real estate research firm and your own personal research. The attorney asks the judge to exclude that part of your report. The judge sustains the objection and instructs you not to refer to the referenced market study in your testimony. According to the Federal Rules of Evidence, Rule 703, you now:
- Revisit your conclusions and possibly revise your report before you can testify.
- Ignore the judge and testify as you would anyway.
- Testify regarding your analysis and conclusions without specific reference to that particular study.
- None of the above.
Testify regarding your analysis and conclusions without specific reference to that particular study.
You are waiting to testify in a trial. When the court convenes and the judge asks for opening arguments by the attorneys, one of the attorneys stands and asks the judge to “invoke the Rule.” This means that:
- You, as a witness to be called during trial, must leave the courtroom.
- The expert report you submitted is going to be challenged before opening arguments.
- You are going to be subject to a voir dire when it is your time to testify.
- You will be served with a subpoena duces tecum before you are permitted to take the stand.
You, as a witness to be called during trial, must leave the courtroom.
