If a gemologist-appraiser is caught up in litigation involving an appraisal, they will experience several mandatory legal process steps. They are outlined below, as well as additional factors to keep in mind along the way.

In today's world of computers, which has led us into an age of Artificial Intelligence, it is often history that we forget. Acronyms are signposts to the past. When we connect two devices to share information wirelessly, we use Bluetooth technology. More than a millennia ago, famous Viking King Harald "Bluetooth" Gormsson had a tooth that was dark bluish-gray in color, thus the nickname "Bluetooth." He was famous for uniting Demark and Norway in 958. The symbol for Blue tooth is a bind rune merging the Younger Futhark (Scandinavian) runes for Hagall and Bjarkan - Harald's initials.¹

What major elements had the most influence on valuation science? The science of valuation and the legal arena. If a gemologist-appraiser is caught up in litigation involving an appraisal, they will experience legal process steps that are mandatory.

        Discovering You

In litigation, there is a process called discovery. Discovery allows both parties to discover information, etc. from the opposition. This avoids a trial by ambush and promotes settlement. Yes, the goal is to settle to avoid the time and expenses of a court trial.

An early step in discovery is to depose experts, called a deposition. The expert may be formally subpoenaed or the attorneys for the two sides can merely agree without formal subpoena service. You will be asked as to your availability, and a date and time will be set, followed up by a letter or fax as confirmation.

A deposition is not held in a courtroom. The most frequently used location is the opposing attorney's office. They can, however, select another location. Today, there is an option to use the internet. Whatever you do, do not agree to use your office. In your office, the opposing attorney can request to examine anything they can see. Avoid such a "fishing trip."

        Relax and Be Alert

A deposition is a relaxed atmosphere, but just because the hearing is in a non-threatening atmosphere does not undo the fact that you are an expert witness. From the moment you wake in the morning until after you are officially away from the deposition, exhibit a mindset that you are an expert witness. Not even during breaks are you to let your guard down. The opposition can have a secretary chat with you to seek information about you. War stories will be your downfall.

The court reporter is in charge as there is no judge or arbitrator present, and that is who will swear you in before you testify. Court recorders do not make formal judgments or settle squabbles among the attorneys. Give the court recorder your business card so they will spell your name and other information correctly.

The entire deposition will be taken while you are under oath. If the case settles, the deposition may be your only testimony and at times it may be your only testimony at a trial.

        I Swear by It

You must always tell the truth. No exceptions. Do not be vague. Do not be evasive.

        What to Expect

Unlike a trial, the opposition will cross-examine you first. Then the retaining attorney can follow up with a direct examination.

If the deposition is to be videotaped, then before being sworn in, innocently ask the camera person if you can look through the camera. That way, you will know exactly what portion of your body and materials will be recorded. If you are a finger tapper when nervous, that will be recorded, and you will want to keep your hand under the table.

The opposing attorney's goals are to discover your opinions, the basis for those opinions, and to determine if you are out of bounds from your expertise. Your testimony will be used to impeach you at trial or in a settlement hearing, using only chosen portions.

        The Approaches

Some attorneys will ask questions in a seemingly random approach. Do not assume this approach is random. The opposing attorney will try to confuse the expert witness and any irregularities will be used at trial. Some attorneys will systematically go through each piece of paper, serving to consume time.

The most effective approach occurs when an attorney asks the expert witness about his or her opinion. If the opposing attorney did not expect an answer, often the basis for the opinion will not be sought. And, yes, a mixture of approaches is likely.

        Talk Too Much

The goal at trial is to control your testimony. In a deposition, the opposition's goal is to allow you to talk a lot. You are in a relaxed atmosphere, the opposing attorney is not hostile towards you, and you will not be interrupted if you want to talk a lot.

You should review what is still considered attorney-client privileged information with the retaining attorney. It is wise to keep attorney-client privileged information in a separate folder and give it to the retaining attorney. Hesitate before each question to allow the retaining attorney time to object. There is no documentation of time in a deposition. Yes, you can ask for a question to be reworded or repeated if necessary.

        Stacks of Paperwork

Expect that you will be asked to bring your working notes or any other related documents. Also expect that the opposition will make copies of all paperwork you bring. Depending on what jurisdiction you are in, you may find that discovery abuse is not allowed. What if you are asked to bring every appraisal you have ever rendered? Discuss such a request with the retaining attorney. Also, make it clear that bringing in appraisals unrelated to the trial exposes your clients and breaches your confidentiality agreement. Request that client names not be entered into the record.

Each state has rules on what an expert witness is expected to provide. For example, federal rules state, "Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case."²

Basically, they want you to disclose all publications for 10 years that you authored as well as four years of testimony, even if your testimony was within a deposition and never went to trial!

And expect to be asked in detail about them. Thus, review everything you bring. Also, review all aspects of your possible testimony. Include outside sources, fees, opinions, and work completed. Concentrate especially on inconsistencies as these will be used by the opposition.

Request a written or video copy of your deposition. Be suspicious of an attorney that does not provide you with a copy. You do not want to be confronted with an altered copy, nor do you want a paraphrased version or written summary. Review the copy in depth for any errors and make changes before you sign off on it. Be prepared to state why you made the changes. Yes, changes can be pointed out at trial by the opposition.

Ater the deposition, review your deposition in preparation for trial. What areas will be highlighted by the opposition? Have a frank and open discussion with the retaining attorney about trial strategy.

        Money Mark It

The opposition is the entity to invoice. You can include travel expenses, and it is from portal to portal. Additionally, do not charge a fee that is greater than your fee for appraising or you will be labeled to the court as a hired gun who is paid for your ability to testify.

        The Other Team and Your Teammates

You will need to review in depth all the opposition's depositions, working notes, appraisals, etc. And if you are working with other experts, review their depositions, working notes, appraisals, etc.

Most of all, remember to always tell the truth.

Written by Bill Hoefer