In this episode . . .
Our guest, Edward Yee, is a renowned expert in photography appraisals, archive valuation, and copyrights. “It’s important to be calm. Remember your audience. You’re there as an expert witness,” remarks Edward on the topic of demeanor in court. Additional topics include staying current in your field of expertise, witness expectations, and responding to opposing counsel.
Note: Transcript has been lightly edited for clarity.
Host: Noah Bolmer, Round Table Group
Guest: Edward Yee, Owner at Penelope Dixon and Associates
Noah Bolmer: Welcome to Discussions at the Round Table. I am your host Noah Bolmer, and today I am excited to speak with Edward Yee. He is the owner and senior appraiser at Penelope Dixon and Associates, overseeing all appraisals. Additionally, Mr. Yee is an Executive Board member and President of the Appraisers Association of America and a board member of the Photography Collection Preservation Project taught courses and lectured on the fundamentals of appraising photography and is an expert on f archive valuation, copyrights, and beyond. Ed, thank you for joining me today for the Discussions at the Round Table.
Edward Yee: I am happy to be here.
Noah Bolmer: Let’s jump into it. You have built an impressive career in appraisals. Has that always been your passion?
Edward Yee: When I was in college, the opportunity to say yes gave me exposure to worlds I did not know existed when I entered. There were no appraisal courses and you had to learn by apprenticeship. I was in college and Penelope was looking for part-time help and looking at the university so, I thought, “Sure, why not?” I did not know this world existed and I was about to graduate, when she asked, “Do you want a job?” I thought, “I would love to learn more.” That was in 1996 and in 2003, we got through a Black Star, which was a major photographic archive of about 300,000 photographs.
Upon completing that project, Penelope offered me a partnership and the rest became history. It was not that I had a passion for appraisals or even photography. I certainly enjoyed it and I think one of my first assignments was not an appraisal assignment but working on the back end of the Bernice Abbott Archive. It involved looking at different historic photographs from changing New York, the WPA projects, and things like that. It connected me to history, that I would only read about in books, and that visual component excited me. That is the advantage of developing a passion in early adulthood.
Noah Bolmer: Absolutely. It is an interesting and broad field. How do you remain an expert? What does it mean to be an expert in your field? Is it something that you have to constantly work on? You are appraising things and I imagine that the market pressures are changing. How are you able to confidently, and continuously evaluate things in a changing marketplace?
Edward Yee: Like anything else, you must stay abreast of the requirements by obtaining a certain number of continuing education credits every five years. We pay attention to auction trends, attend gallery exhibitions, and see what happens in an artist market. Understanding what drives that market is one of the challenges. My arena focuses on photography, and we look for a broader depth of knowledge for continuously moving segments of the market. The entire market does not move at the same time. Certain portions move at certain times. You may see a spike in certain trends. You can acquire large amounts of information by attending photo fairs and different exhibitions, in museum and gallery spaces, at auctions, and online. The access to information is so much greater than it was twenty years ago. Having increased access to information means having increased expertise at the different levels of the market. I think that being clear about your assignments, your objectives, your scope of work, and being clear about the definitions and purposes of value you are using are important. In the end, you want to make sure that your valuation conclusions are not only based on data but well explained.
Noah Bolmer: You have made this career out of appraisals, and you have maintained your expertise. Tell me about your first engagement. How did that go? Did you feel that your expertise was sufficient to satisfy the needs of the attorney?
Edward Yee: I was recently contacted about a copyright case where no NDA was in place, and they could not give me many details. I said, “Listen, our photo world is small, and the description of what you need does not make sense. If I sign an NDA, you can give me more information.” They signed the NDA, but interestingly two parties contacted us asking for the same material within a couple of weeks of each other. After I realized what material the first party was requesting, I told them a limited number of people had exposure to this information, and I knew the person named in this suit, so, I needed to recuse myself. We could not do it. It was interesting because two weeks later the same call came in. I knew what both sides of this case were, the reality was that I knew one of the parties involved. We told the second party, “Sorry, it would not be appropriate.” In general, to answer your question, this is so much of a dovetail. Talking with the counsel has always been important. They want to get a handle on where you are and how you are going to approach it. I have projects that have been pending for a year because it is a divorce case, but you know both counsels. It is not so much expert witness testimony, but they are looking for an expert witness conclusion to be able to have its community property to be able to have it equally distributed. The issue surrounding that case is both parties have to essentially agree. Then the court says, “Yes, this is the witness.” But again, that was a matter of having one counsel take the lead in this case. It involves an artist and their spouse so, there are different variables here than just say a collector’s collection. It was just the attorneys. It was not that they were using incongruous language, they were not talking past each other, but they had different understandings. It was important to get both counsels on the phone at the same time and just say this is how it will be approached, and these are the relevant variables as to how we would see it. I have always found that being clear, compartmentalizing, listening to what is asked of me, and answering to the best of my ability is the best way to approach an expert witness case.
Noah Bolmer: When you say ask or answer what exactly is asked of you, do you mean that it is important not to go beyond the bounds of that?
Edward Yee: That is a good rule of thumb for any appraiser. Appraisers as a group have one trait in common that is not universal, but more often than not, they always want to try and help. They try to do more than they may be contracted to do. You say the things you are comfortable saying but do not need to. You want the parties to be able to have an understanding. As a good appraiser, you are not operating like the Wizard of Oz behind the curtain. You are trying to bring some objectivity and rationale to the overall process.
Noah Bolmer: Did you end up in a court trial for this case?
Edward Yee: Not one of them. In the first, we recused ourselves and in the second, we are waiting for the parties to agree.
Noah Bolmer: You have not received notification that they have?
Edward Yee: We are waiting for the parties to agree.
Noah Bolmer: Have you been in a situation that has gone to a trial? Have you had a deposition or cross-examination?
Edward Yee: I have had two depositions and one trial.
Noah Bolmer: How did that go?
Edward Yee: The trial was interesting because it was long. I think in total I must have spent seven hours on the stand. It was a long process. The issue was it was a divorce case. We had been hired by the wife of the artist. The artist was a regional photographer who had some degree of success and had additional prints. The assignment from the court was to determine their value on the date of the divorce. Fair enough. So, we went through the process. Let me just do the math for the difference. The artist also had an appraiser and the spread of difference between the two appraisers was 40 times the difference in value. As you can imagine that would go to court. The part I have not mentioned up until now, which was an important factor, was the day after the divorce was filed and the data evaluation done the artist was arrested and ultimately convicted of child ***********.
Noah Bolmer: Ohh boy.
Edward Yee: He was serving time at the time this trial was going on. The other appraiser had taken the opinion and the point of view that the value of the material should be on a cost-basis only. We took the value and the market approach on a market reparation approach. The testimony time was equally split between both counsels. Our counsel had me walk through the process, which was straightforward. Then we got to opposing counsel, the issue became they will be trying to lead so, know their line of questioning and all of that. We got through it, and in the end, it was interesting because their counsel was trying to get on the record whether he could sell any of the prints today, and I said, “Absolutely not.” He would mark it if that was the question, I would be happy to answer it, but that was not the question. The question was on that day there was no way to know what those forthcoming events would be in terms of the potential payout, I am sorry that is not the case, The Court can decide what they want to do with that information. You have asked a question, and I have answered. I have not read into the future of what I do not know. I assume it must have all worked out fine. I never heard anything beyond my testimony. It was an interesting case because you had two respected and well-known appraisers. I can understand where the other appraiser was coming from.
Noah Bolmer: Did you know the other appraiser?
Edward Yee: I did, and it was someone I respect. The reality is I do not know how her assignment was phrased. Her assignment might have been “What can I get for these photographs today?” And that might be but that was not my assignment. I was engaged to determine what the value was. What is done with those pieces of information is beyond my pay grade. Doing what you are asked answering that question and being clear.
Noah Bolmer: Was that the eventuality that you were prepared for by your attorney? Did they let you know that they were going to ask you something like that to try and trip you up? Did they help guide you at all to answer the opposing counsel’s questions in the manner that you did, or was it just your instinct?
Edward Yee: I think it was more instinct. I do not remember there being a whole lot of preparation in terms of getting ready for the testimony, much less the deposition. We might have spent an hour on the phone in terms of the I would not even call it a deposition. It was a prep thing because we had done a report. We had done a full-on appraisal report and submitted it. Our reports are very detailed. They underscore where we have come from and all of that. So, I think that preparation was more limited than would have otherwise been required if that was my first time on the stand. I just remembered another one that was a mediation. I guess after 30 years they start to evaporate. But, with that one, there was not much preparation. After their report was done, it was maybe two to three hours. Two-thirds of which included me making sure that everything was logically laid out. It was what it was. It is, and I am speaking of my research and my expert opinion, an area where if I have done everything correctly, I should be able to withstand whatever questions the client or the opposing counsel may have.
Noah Bolmer: In other words, that is interesting. So, extra prep. In other words, you would not say to yourself, “Oh boy, I wish that I had done more prep.”
Edward Yee: No, I would have said, “I wish I had a bigger breakfast.” Because the day was just so long. I think it was 7 hours with maybe a 1/2 an hour lunch or something like that. I remember that by the time I had gotten through closing counsel, I was mentally tired.
Noah Bolmer: A big breakfast is good advice.
Edward Yee: Yeah, that would be my best suggestion.
Noah Bolmer: You are not the first expert who has told me that one of the opposing counsel’s tactics is to wear you down and fatigue you, so make sure that you have eaten enough and drank enough water. Make sure that you are ready, which is good advice.
Edward Yee: In comparing the two, with the counsel that hired us, I knew what the questions were going to be, and they were all very logical questions. It was not as if things were surprising by any means. What I remember being very frustrating was that the opposing counsel would repeatedly try to rephrase the same question in about fifty different ways. I kept coming up with the same answer. I understand what you are trying to do and where you are trying to get to, but it does not change the outcome. So, that was exhausting. The repetition of the …
Noah Bolmer: Reframing the question trying to get you to change your…
Edward Yee: Reframing the question and the reality is that my conclusions are based on whatever facts I have. That does not change. Trying to find different ways to explain the different forces that are ultimately in play and making your determinations, can be a bit exhausting. But that is…
Noah Bolmer: Did they try to impeach you as a witness? Did they try and say that you are not expert enough? They did not try any of those tactics on you.
Edward Yee: No, they did not. Funny enough, that did come up because at that point I had not been recognized as an expert witness. I do remember the opening statements from counsel was to get the Court to accept me as an expert witness.
Noah Bolmer: We were talking about reports, when you are engaged to write a report have you typically been given some kind of a skeletal outline where you fill in the expert part or have you written it full cloth?
Edward Yee: The only exception to that was many years ago. We were hired by an insurance company on an insurance case, and they did not want us to do an appraisal. They wanted us to act as a consultant. We had to be careful in terms of how we were doing and what we were doing. I think that case was reported somewhere but the facts of how it is reported are not 100% accurate because it was a consultancy and not a full-on appraisal as far as USPAP is concerned. I think we did render an A value opinion so it would still qualify as an appraisal. The piece that was in question was a unique piece that had received some water damage. It was a large mural piece, and everyone knew there was some. There was some disagreement in terms of what the value would have been before the damage. The first objective was just to get all parties to agree that this was going to be the value. Had there been no difference in the value, the starting price before damage would have been in the seven figures. The low 7 figures. The insured had hired a well-known, reputable appraiser and they produced a beautiful report. I think it was 50 pages and that report had come to a valuation conclusion of well under 6 figures but there was not a reason given as to how that number was determined. It just stated the opinion of the appraiser. The insurance company asked us to write an opinion of the value and our report I think was about 7 pages. It went through three different ways of how the value could be looked at and one of the arguments in there was, while necessarily being at the full retail price because, sorry I forgot to mention the print had undergone considerable restoration. Because this was such a large mural print. We went and looked at it and the pages had some undulations because there was some water damage that had been treated. It was a multi-panel piece and there were still some tide marks that you could see if you got close to it.
Noah Bolmer: Okay.
Edward Yee: The realities of the undulations because it was such a large piece already. It was hard to notice that, and you are standing right up to the print you are not going to notice those variations. That is not how the piece is intended to be viewed. It is meant to be viewed from a distance, so, part of the rationale that we had used in our in our valuation is that this would be unaffordable for some smaller museums that would love to fundraise around this. It would have to be at a reduced price, and so we have gone through some different ways of looking at what those reduced prices would be in relationship to an undamaged print. In the end, that was what our report was. This was going to be a trial and we got into the deposition side of it. Counsel was like, “So what?” What are you going to say when the judge asks you, “How do you know your value is right?” I remember thinking, and I said, “Well, I am going to answer I do not know that my value is right. That is up to the court to decide. But I can tell you how I got to my value. I have a logical, rational, and clear approach. You can either agree or disagree with that.” The opposing counsel said, “We are done here.” That is all he needed to hear because as far as counsel was concerned, regardless of who was right or who was wrong, having the basis as to how it was determined was critical. That was the key.
Noah Bolmer: Do you know if your side prevailed in that case?
Edward Yee: That case interestingly was just settled in the last few years. It did not end up going to court and I am happy to report that I feel that my valuation was justified.
Noah Bolmer: Okay sure. This Is something that I like to ask all of my guests. Is it important that your side prevails, or is it just as important to you that you give your best expert testimony for a given case? Is that a factor for you?
Edward Yee: I would say in the end, the truth and the best argument should win. You must know the amount of thought that goes into any argument, whether it be for an expert witness or any appraisal. It was well thought out. There is a reason behind being human it would be hubris to say, “My way is always right.” You know it is a matter of being open, and to me, and the firm, it is most important to seek the right answer. Even if those results are not the results, that is a case in point. When we went back to where we had started. When I talked to counsel, it was important to explain where I was coming from in terms of how we are approaching this. We can either decide to or not to and the results are going to be what they are going to be.
Noah Bolmer: You are talking about vetting them when they first make contact with you, before you decide to take a case or not.
Edward Yee: You do not need that and the other way around, it is a matter of full disclosure. That is how we would look at it.
Noah Bolmer: Right. You both must get that information before the engagement because you do not want any surprises.
Edward Yee: That has less to do with me and appraising and more about good business. The reality is being clear and honest. It was interesting because I think when we were talking about that one case where we had recused ourselves in the discussions, the counsel that had contacted us first was looking for a very high number. The conclusion was they were explained exactly where they came from, and I did not agree. I did not know at that point that we would have to recuse ourselves either. But again, I would never be able to approach it that way and I explained to him why that would be the case. Despite everyone getting on the same page, they did not know our market and once I explained that and how those calculations and determinations are made, they were still interested in proceeding. They are looking for the right. Everyone should be looking for the right.
Noah Bolmer: Right. Of course, at the end of the day, your reputation is on the line.
Edward Yee: Absolutely, absolutely.
Noah Bolmer: You do not want to give bad information and then not get another job as an expert witness.
Edward Yee: No. We take it seriously. I do not think of it in terms of being right or wrong because I am always working on the assumption, I am trying to get to the correct answer and sometimes people are not necessarily good with information, so conclusions can change. That is equally important. So, many variables get baked into that. Acting very clear and very forthright in terms of what your positions are and how you approach them. I think it is just a simple business transaction if they want to hire you as an expert witness, they should know your reputation. It is a matter of saying; this is how we would deal with it. I would rather be upfront knowing the basic circumstances and not know what the interests of the parties are because I want to be isolated from that. I do not want to be influenced by any party’s interest; I want to look at the facts. That is the most important thing to me.
Noah Bolmer: Do you enjoy it? Is it something you would like to continue to do?
Edward Yee: I will put it to you this way, whenever we get a look at each request that comes as honest merits. I do look at it and enjoy thinking. I do not necessarily enjoy having to be on the stand.
Noah Bolmer: Right.
Edward Yee: I like the analysis. I like thinking. I like writing. Some things are more. I will use the word toxic. I do not like to be in those. Where it is more of a personal choice than a professional choice.
Noah Bolmer: There is one last thing that I would like to pivot to before we wrap up. Is getting paid. This is something that everybody wants to know, is how everybody charges. I do everything project based and some people like hourly. Some people take a retainer. Do you have any recommendations that have worked? I know that you have not done this too much, but you have been doing it for a while. So, what do you recommend to newer experts who are not sure how to bill?
Edward Yee: I think by the hour. For example, we do bill our time on the stand, and deposition work is billed differently than preparation work. We will usually work with an allotment of hours. So, as an example, when someone does come with us, we usually will not give the estimate for the testimony because we just do not know how that is going to play out. We will work off a retainer based on X number of hours for expert witness or preparation for whatever. But yes, we work on a routine where the calculation is based on hourly rates.
Noah Bolmer: Do you have any last advice for newer experts or attorneys who are working with newer experts?
Edward Yee: I do. I think some programs help appraisers write reports and gain the necessary skills to be effective expert witnesses. The Appraiser Association of America offers these programs, usually once a year. It is good to check their website in terms of their educational offerings. It is interesting because when they do offer classes they usually always fill up. It is a topic that people are interested in so it is important to have your skills tuned up both from the appraisal report writing aspect as well as you know being effective on the stand. As far as being on the stand I think it is important to be calm. Remember your audience. You are there as an expert and so many times I will often speak in metaphor. Those who are not in appraising or do not necessarily know the nuances of what we are doing might have a hard time relating and understanding the concepts involved. For me when I must give testimony, I will lay the groundwork relative to my area of expertise and then come back to revisit it. That way I can try and use an analogy. I often use real estate because most people relate appraisals with real estate so, it is easier to be able to draw those kinds of analogies. In general, real estate is more liquid than art, but it also provides more utility than art. So, you start tapping into the recesses of people’s brains. They are like, “I remember those terms from economics.” Or it reintroduced it to them. That way they get where you are coming from. You try to make that connection for them. I think as an expert witness it is important for the court.
Noah Bolmer: That is sage advice. Thank you, Ed, for joining me today on Discussions at the Round Table.
Edward Yee: My pleasure.
Noah Bolmer: Thank you to our listeners for joining us for another discussion at the Round Table.
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Edward Yee, is the owner and senior appraiser at Penelope Dixon and Associates. He is an executive board member and president of the Appraisers Association of America, and a board member of the Photography Collection Preservation Project. His areas of expertise include the valuation of large archives, estates, negatives, and copyright.
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