We recently had the chance to sit down with Richard D. Williamson, a leading commercial and complex civil litigator who heads his own practice (Robertson, Johnson, Miller, and Willamson) in Reno, NV. Richard and his partners focus primarily on commercial real estate and have represented clients in jury trials, bench trials, arbitration hearings, mediations, and more.
During our conversation we discussed situations in which Richard seeks expert witnesses from a commercial real estate perspective. Additionally, we explore the importance of testifying experience and whether academic experts are the right fit in his field.
The interview has been edited lightly for length and clarity.
One thing I enjoy about commercial real estate is it really is so broad. And so, we will have everything from a landlord-tenant dispute for a shopping mall or a strip center to construction disputes, easements, boundaries, and all sorts of things. There really is a wide range within that. The need for experts then varies depending on the case.
For instance, in a construction type dispute, I think with few exceptions, an expert is almost always going to be necessary. Even in a contractual dispute with a contractor, [regarding] whether or not they abided by the standards in the industry, you’re going to need a contractor to really speak to and help define what those standards are.
Whereas in just a breach of lease case, where a tenant vacates a property early before their lease term is up, is often just a matter of very simple arithmetic and simple calculation of what the remaining lease term is. So that will not always require an expert, but there can be times where the damages are really difficult.
Or, for instance, if there’s a really long-term lease still to play out, it’s possible you may need some sort of a leasing expert to talk about when it would be anticipated a new tenant could get in there and help reduce or mitigate those damages. So [expert witness needs] vary on a case-by-case basis [depending] on what the specific subject matter is and how much an expert is needed [to address it].
I think it is generally helpful to have someone at least with past testifying experience. Now an expert starting out is going to have to testify for the first time somehow. So, [testifying experience] is not always required, but it can be helpful getting an expert qualified to be able to render expert opinion testimony at trial, [and] so the expert knows what to expect; a deposition will not be new to them or testifying in court and the formalities and procedures will not be new to them.
Now, there are occasions when it still will be. For instance, you may have a really good construction expert who was a construction practitioner for many, many years, that’s where the bulk of that person’s experience is. Maybe [they are] in retirement or after that person sold their business, they have now shifted into a more expert witness role. It’s possible they’ve testified as a fact witness or as a party in a prior case, but, it’s also possible that while they are a perfectly fine expert, they just haven’t testified. So, I don’t think that’s a deal-breaker necessarily. But I do think it can be very helpful to have past testifying experience to some extent.
I suppose it’s possible that there can be cons to having too much, and appearing like a hired gun to have testified in court a million times. Sometimes experts are almost too polished and do not seem genuine. But to me, that’s really more of a testifying skill that that expert needs to work on to not appear so slick. Not how much or how little they’ve testified, but more just their kind of approach and delivery.
If someone was really good and really fit the bill, and I felt reasonably confident that they could project themselves well and come across credible at deposition and at trial, it’s not an automatic excluding factor if they don’t have past testifying experience.
Whether it’s a contractor, a real estate broker, maybe a surveyor, usually we’re looking to practitioners as our experts that have that kind of practical, real world experience. But yes, there are times when we have used academics and really, I think sometimes it’s almost needed. The one that jumps to my mind is an economics professor to provide some level of damage analysis. An economist that might be able to help calculate a client’s damages from various things that require some careful analysis. Some of those subject areas really don’t lend themselves to practical real-world businesses that someone would just hire that person to do.
We found that in those areas academics are sometimes the best and often the only source of expert witnesses. And so, yes, there are definitely specific subject matters and specific situations where it really helps to have an academic.