As the son of a fighter pilot, I heard true stories about our young American Army Air Corps fighter pilots engaged in combat during World War II flying in the North African theatre. These events were relayed to me by my father, Major Jerome C. Simpson, and documented with military orders, newspaper articles, pictures and journals. He survived over 150 combat missions and was decorated with the Distinguished Flying Cross and other United States Air Force medals. One story in particular has stood out throughout my life as perhaps the most important one. It was about how close he said he came to death in an aerial gunfight with an enemy fighter pilot above the desert while in hot pursuit of this hostile plane.
As my father’s machine guns were firing and while he was chasing and attacking the enemy plane from behind (it had been spotted strafing American ground troops), he was thinking to himself that this one might be his 5th official kill that would make him an Ace. Then, before he could react, the German fighter pilot slowed his airspeed so suddenly that Lt. Simpson passed his enemy close enough to see a smile on the enemy’s face before being sighted in on and fired at by this mortal enemy of his. He had a real survival lesson in life.
While being an expert witness is not life or death for us, the consequences to our clients can be financial life or death.
In a recent case, I discovered numerous and substantial problems in data gathering techniques, tabulation, and interpretation that appeared in the other experts’ work product. As an expert witness, I am required to be an unbiased non-advocate. So to discover bias and advocacy from the other side was disturbing and motivating at the same time.
At my deposition, I presented documentation that I personally obtained from public records which called into question benchmark dates used in a time sensitive analysis. I evaluated numerous reports and testified at deposition that some data was “plugged in” to match a known total. My testimony was that data was missing from another total which meant the total was not the true total in that report. I also testified that some of the data was not reliable due to data gathering techniques. I knew the data was “spun” to fit a theory in order to claim damages and was not the truth, the whole truth, and nothing but the truth. In this case, I believe the expert witnesses on both sides caused the case to settle.
After my deposition was taken over a period of 3 days (24 hours is a lot of deposition time), my background as an expert witness and as being suitable for this case was challenged in an attempt to take the focus away from the obvious mistakes and serious errors contained in the opposing experts’ reports. Their experts’ professional designations implied responsibility and professional accountability for work product to be accurate, reliable, and meaningful. A professional designation should not be a shield in which to stand behind when legitimate scrutiny discloses erroneous information.
As a real estate licensee in California I cannot charge for an Appraisal. Only a licensed appraiser can do that. However, I am entitled to render an Opinion of Value. For over 30 years I have been called upon continually for my opinion of value, by potential Sellers, Landlords, potential Buyers and Tenants. Furthermore, I am called upon by lawyers to render my opinion of value in a variety of areas and types of real estate, while under oath, for both estate planning and trials. The public generally estimates value first with real estate licensees, not appraisers. Lenders substantiate value prior to loaning money and require an appraisal to protect themselves from losses.
The opposing attorney filed a motion in limine just prior to trial in an attempt to preclude my “expert appraisal related opinion testimony” since, in my opinion, it so clearly, precisely, and unequivocally identified significant mistakes in their experts’ reports. My uncovering of serious errors would not only have embarrassed them, it would also have irrefutably damaged their underlying premise. Their experts would have had difficulty explaining wrong dates, wrong sizes, wrong conclusions, and wrong data when confronted with correct dates, correct sizes and corrected conclusions in any academic or meaningful way. My graduate degree in psychology focused on experimental design, statistics and multi-functional analysis of variance which, if it did not qualify me enough, at least educated me enough to spot the poor work product and mistakes.
Opposing counsel wanted to remove me as an expert and suggested that I offered an “abstruse” market analysis. Webster’s II New College Dictionary defines “abstruse” as “not easily understood.” I offered the very next word in Webster’s II New College Dictionary, which is “absurd” as what they were trying to do. The notion that the world is round is “abstruse” to those who think it is flat. The notion that the reports I reviewed were accurate was as “absurd” to me as the world is flat from what we know now. All of their experts’ reports taken together were “not easily understood” since they were not all in agreement with each other on their key opinions and key data. My report accounted for errors and deficiencies and compiled the results.
The data I compiled in my spreadsheet indicated that their key expert’s survey was not completely comprehensive either. Not comprehensive, not internally consistent, not accurate and good for nothing other than promoting bad information in a lawsuit. I admit I was looking forward to trial so that the reports could be challenged and their authors under oath were obligated to answer troubling questions as to its contents. However, the opportunity never came. Oh well.
The one thing I did get to witness was the look on the deposing attorney’s face when I delivered my ordinance and I couldn’t help but smile and think of my father.
Kenneth L. Simpson, SIOR has 32 years experience as a Real Estate Broker specializing in Industrial and Commercial sales and leasing. He is experienced in issues relating to standard of care, custom and practice, Fair Market Value, property comparisons, sales and lease agreements and agent duties and obligations. Mr. Simpson can be reached at (310) 337-7000 or via email at
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