When a real estate appraiser is called to testify in a court, it could be as one of two types of witnesses. If you are called to testify as an appraiser, it’s important to determine at the time of the request which of the two types you will be: fact witness or expert witness. One has lower liability and responsibility, and the other has greater financial reward.
Black’s Law Dictionary, 6th edition, defines a “fact witness” as:
In general, one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness. One who is called to testify before a court… One who testifies to what he has seen, heard, or otherwise observed.
A fact witness is one who testifies only to that of which he or she has firsthand knowledge and who describes only facts (as opposed to expressing opinions). There is no formal definition of a fact witness. In fact, Black’s Law Dictionary, the definitive authority in legal definitions, does not have a separate entry for this term.
However, the Federal Rules of Evidence addresses what a “fact witness” can do in Rule 701:
Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
There are two main points to remember about a fact witness:
A fact witness is not permitted to express an opinion beyond the limitations in Rule 701 while testifying.
Compensation for a fact witness is minimal and often set by statute or by the court.
A fact witness testifies to just that: the facts that relate to the case. As a fact witness, you may describe an appraisal that has been performed. You may state the concluded value in the appraisal. However, you are not to explain the reasoning behind the concluded value. That would encroach into the realm of expert testimony.
Additionally, the amount of compensation you can receive for providing fact witness testimony is limited and substantially lower than an expert witness can, and should, charge.
Black’s Law Dictionary, 6th edition, defines “expert witness” as:
One who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or deducing correct conclusions… A witness who has been qualified as an expert and who thereby will be allowed… to assist the jury in understanding complicated and technical subjects not within the understanding of the average lay person.
As an expert witness appraiser, you are allowed to express opinions. In fact, your opinions are the very reason for your testimony. The opinions are to be based on the expertise afforded by “scientific, technical, or other specialized knowledge.” Therefore, your opinions are sought to assist the Trier of Fact in deciding the case.
The Federal Rules of Evidence, Rule 702, addresses the use of an expert witness in a trial:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Is the role of expert witness right for you? Find out in our top-rated CE course, Introduction to Expert Witness Testimony for Appraisers: To Do or Not to Do.