“Avoiding Wrong Turns in Right of Way Litigation: Testing Your Knowledge and Your Role”

1. “Avoiding Wrong Turns in Right of Way Litigation:  Testing Your Knowledge and Your Role” Mary V. York, Esq. Holland & Hart, LLP

2. AWitness?

3. Let’s consider You as an expert witnesswithin a specific case...

4. Condemnation Case

5. 960 Square Foot Taking (7 Feet Long & 133 Feet Wide)

6. 960 Square Foot Taking (7 Feet Long & 133 Feet Wide)

7. Expert Opinions • Condemnor’s Experts: $38,177 = Value of Take & Damages • Landowner’s Experts: $7.1 Million - $7.5 Million Value of Take & Damages, Loss of Access, Loss of Visibility, Increased Noise, Unsafe Driveway for Emergency Vehicles

8. By Lunchtime, you willhave learned . . . • What attorneys and fact finders value in experts • How strong experts communicate • Where the law matters

9. WhatAttorneys and Fact Finders Value in Experts

10. Attorneys Say: PS Survey of Litigators, September 13-15, 2008

11. Attorneys Say: Ten Most Common Problems with Experts BEFORE Trial/Arbitration/Hearing [Add PS Chart] PS Survey of Litigators, Sept. 13-15, 2008 PS Survey of Litigators, September 13-15, 2008

12. Attorneys Say: PS Survey of Litigators, September 13-15, 2008

13. The Better Teacher Wins Fact Finders Say: “[The expert witness] was very intelligent – if I remember correctly, with a bowtie. That’s how I remember. Anyway, he was the one. He showed, he broke things down, he explained to us in detail what the [model] was like.” “I mean he drew pictures…Came across as very much of a specialist, very intelligent, very believable. And he made it interesting because he explained it so much. He really could explain it well. I guess he’s a teacher maybe too.” Ivković & Hans, 2003

14. Fact Finders Say: • “[Plaintiff’s expert’s] appraisal report is easy to read and understand.” • “[Plaintiff’s expert’s] trial testimony was also persuasive in that [the expert] provided detailed testimony as to how he came to his valuations.” • “Therefore, this Court found [Plaintiff’s expert’s] valuation as to the partial taking to be very persuasive and credible.” User-Friendly Wins

15. Fact Finders Don’t Expect Perfection “An expert is a person who has made all the mistakes that can be made in a very narrow field.” Niels Bohr (1885 – 1962)

16. HowStrong ExpertsCommunicate

17. 7 Seven Habits of Effective Communicators On the Stand

18. Habit Number One:Be Prepared Know Your Report Know Your Report Know Your Report Know Your Report Know Your Report Know Your Report Know Your Report Know Your Report

19. Attorneys’ Witness Preparation Practices Malone & Hoffman (1996), The Effective Deposition: Techniques and Strategies That Work, NITA 20% review substantive facts and focus on witness confidence and performance issues 40% review substantive facts and recite “do’s” and “don’t’s” 40% review substantive facts only

20. Witnesses Need More Preparation

21. Habit Number Two: Display Confident Communication

22. Not . . .

23. Habit Number Three: Understand the Question & Answer ONLY That Question

24. Habit Number Four:Demonstrate Your Expertise and Experience • Focus on how and not simply on why. • Start with what you can show and then work back to what you can tell. • Emphasize your teaching ability as much as you emphasize your expertise. Ken Broda-Bahm, Ph.D, Persuasion Strategies The Better Teacher: Be an Expert at Testifying and Not Just a Testifying Expert (Feb. 2013) [Use One of the Video Clips]

25. Habit Number Five: Teach Conclusions with Secondary Visual Aids* Jurors’ Retention Levels Based Upon Mode of Teaching Three hours later: 72 hours later: 70% 10% When Told Only: 72% 20% When Shown Only: 85% 30% When Told and Shown: 70% When Told, Shown and Demonstrated: *Guess what the number one visual aid is?

26. Habit Number Six: Show Why Your Analysis Is Better Than The Opposing Expert’s

27. Habit Number Seven: Maintain Your Independence One Juror’s Perspective: J: “I think that he was the economist from the University of X and he was really deep and really boring, but you could tell from his testimony that he was definitely being paid by the plaintiffs. He was very one sided and you could tell he really didn’t get into studying [the case].” Ivokovic & Hans 2003

28. Habit Number Eight:And, Always and Above All . . . Tell the Truth

29. WhereThe Law Matters

30. Trial Counsel’s Worry List When can a witness give expert testimony? (Idaho Law mirrors Federal Rules) I.R.E. 702 – “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.

31. Expert Witnesses Expert testimony is only admissible when: • The expert is qualified in the field. • The evidence would help the trier of fact. • Experts in field would rely on same type of facts. • Probative value is not substantially outweighed by prejudicial effect. Coombs v. Curnow, 148 Idaho 129, 219 P.3d 453 (2009)

32. Expert Witnesses Need to Know: Expert’s Opinions are “scientifically valid” when: • Theory can be tested • Subject to peer review and publication • Oversight of testing • Presence of safeguards • Data is verifiable • Other experts available to test and evaluate Coombs v. Curnow, 148 Idaho 129, 219 P.3d 453 (2009) quoting Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

33. Expert Witnesses Need to Know: Credentials are not enough – Courts can (and do) strike down Nobel-prize winning scientists who are not prepared or who do not rely on facts.

34. Expert Witnesses Need to Know: • “Therefore, this Court finds that [the appraiser’s] report, calculations and trial testimony were all difficult to understand and provided little assistance to the trier-of-fact in attempting to determine the value of the partial take.” • “Overall, the nature and manner of [the expert’s] testimony leads the Court to find that [he] was more comfortable with indirect, confusing, opaque and brief testimony than with clear and direct testimony.” • “If the Court understood what [the second expert] was trying to establish, the Court suspects the testimony was probably inadmissible, but its complete absence of any probative value for the fact finder renders the question of its inadmissibility moot.”

35. Expert Witnesses Need to Know: • Some potential pitfalls regarding experts and discovery (Idaho Law) • I.R.C.P. 26(b)(4) • Complete statement of all opinions and reasons, data considered, exhibits • Qualifications, publications, prior testimony (trial or deposition) • Discovery • Assume everything provided to, received from, or said between attorney and testifying expert is discoverable. • Communicate verbally, including edits to drafts • If communicate in writing assume it will be read by opposing counsel, judge and jury • Directions provided carefully • Keep careful track of what was provided

36. Expert Witnesses Need to Know: Be Careful What You Write

37. Condemnation CaseSo, What Happened? State of Idaho v. HI Boise, LLC, 153 Idaho 334, 282 P.3d 595 (June 2012) Loss of Access – Damages may not include limitation of access based upon changes in flows of traffic. Loss of Visibility – Visibility is not a compensable property right in and of itself and here no loss occurred due to the taking of 960 square feet Increased Noise – Abandoned Claim Unsafe Driveway for Emergency Vehicles – Disproved Factually

38. Unsafe Driveway for Emergency Vehicles

39. Condemnation Case State of Idaho v. HI Boise, LLC, 153 Idaho 334, 282 P.3d 595 (June 2012) After ITD prevailed on all major issues, the case ultimately settled for $38,177

40. “Avoiding Wrong Turns in Right of Way Litigation:  Testing Your Knowledge and Your Role” Mary V. York, Esq. Holland & Hart, LLP