Broker to Broker advice: Witness for the prosecution

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 Part I – The Basics
As our society becomes more litigious and civil court cases more frequent, the need for expert witnesses to assist the court in rendering sound decisions and making proper awards is a growing demand. Those experts would include mortgage brokers, who are more knowledgeable in lending matters than lawyers or judges.

Not knowing the rules of court or what is expected of you as an expert witness, however, can be disquieting, and you’re mistaken if you think it’s like a television production. Still, court is a lot like a stage play where all of the characters – lawyers, judges, court reporters, juries and watchdogs – recite their lines and act their part in an adversarial system until one wins and the other loses.

Expert witnesses for trials, hearings or arbitrations are called upon to recite facts and give testimony pertaining to the dispute or criminal action. They are validated by the court because they have relevant credentials or professional expertise. This is different than “fact witnesses,” individuals who personally witnessed or participated in the cause at trial and whose testimony is derived from firsthand knowledge.

As an expert witness you are expected to evaluate the facts of the case and render an opinion based thereon and in a way that is understandable to the judge. For this, you must be credible, compelling, and have the ability to respond without prejudice when your opinions and conclusions are challenged, which they will be.  Expert witnesses deliver objectivity while lawyers are rewarded for subjectivity.  Experts present the facts. Lawyers argue for their client, and the judge interprets the law, weighs the evidence and then renders a verdict.

Mortgage brokers as expert witnesses must recognize their responsibility to provide testimony that is truthful, impartial, scientifically correct and in accordance with the merits of the case.  That is, to:

•    Provide evidence or testify only in matters in which he/she has relevant experience in the areas being litigated.
•    Give straightforward evidence rather than testify to mislead, confuse or bias.
•    Be as objective as possible, and not omit material or information that does not support the opinions expressed or conclusions reached.
•    Be properly and fully prepared.

The role of the expert witness normally commences with him/her receiving from the lawyer, for whom he/she will act, all preliminary data pertaining to the case at hand. From this the witness undertakes a detailed examination of all facts and extenuating circumstances to be presented at trial.

Accordingly, you will perform a detailed analysis and develop an opinion as to the merits of the case, keeping in mind the forthcoming play in court and contemplating the questions to be asked by the lawyers for both sides. You will be questioned in three specific areas, the factual evidence you have reviewed, your interpretation, evaluation and opinions, and the basis for those opinions.

Part II will discuss what happens when you get to court.

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