Editor's Pick: Stop Stealing My Services

If you are court ordered to appear and testify you certainly are required to do so. If you know the answer to the questions, you must answer honestly. However, it’s ok if you don’t remember and that is why I highly recommend you don’t take your workfile or reference it unless you have been ordered to do so.

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Editor’s Note: In this story, USPAP instructor Bryan Reynolds offers some solid advice on making the best of what can be a difficult situation: dealing with an attorney and going to court.

Some time ago, while teaching in Knoxville, Tenn. and having another sleepless night, I fired up the laptop and was surprised to see an email from a former student with a subject line reflecting an urgent need for help. Here it is.

From: Jane Doe
Subject: Need help please!

Hi Bryan,

I desperately need your help. I completed an appraisal for refinancing purposes seven months ago. Now the homeowners are divorcing and the wife wants to use that appraisal in court. In fact, I received a subpoena today demanding my testimony and a copy of the appraisal. I need to know if she can use the report, which was initially intended for mortgage purposes, which identifies the bank as the only intended user.

Will I violate USPAP requirements if I go to testify on the appraisal without my client’s knowledge and/or permission? The court is tomorrow at 10:00 A.M. Can you advise me on this one?

Thank you for your time in advance,
Jane Doe

(Response) From: Bryan Reynolds [mailto:bryan@reynoldsappraisalservice.com]

I hate it when attorneys try to steal my services. First, what does the subpoena require? Does it mention your workfile? If it doesn’t, I would not produce it tomorrow at the trial.

You must be honest of course. But I would not even look at the file. I can’t remember what I had for dinner last night, let alone an appraisal I did seven months ago. As a result, they would probably be receiving a lot of “I don’t know” and “I don’t remember” answers from me. I am certainly not suggesting you become a hostile witness but if I were you there is no way I would attempt to refresh my memory on this case when they are trying to steal your services. If fact, I may contact opposing council and ask if they would like to hire me.

Remember, when the law and USPAP bump heads– the law wins. If you are court ordered to appear and testify you certainly are required to do so. If you know the answer to the questions, you must answer honestly. However, it’s ok if you don’t remember and that is why I highly recommend you don’t take your workfile or reference it unless you have been ordered to do so.

If they ask you about the quality of the other appraiser’s report, I would respond, “I can’t answer that question as I have not conducted a review.” If you answer the question you are performing a review on the spot which must comply with Standard 3 and you must create a workfile.

Also keep in mind the attorney may know the law but you are the valuation expert. Don’t be intimidated!

Check Required
A few years ago I received a call from a local attorney (Mr. Smith) asking where they should send the subpoena. I answered, “What did I do now?” They indicated I had appraised a property some years ago and I was needed to testify in an upcoming divorce case. I responded that there is a right way and a wrong way of doing things. I said, if you can find me to subpoena me and steal my services, I will have to participate and provide truthful answers but I don’t remember what I had for dinner last night much less what I did two years ago. I will not even look for the workfile (unless it is required). I will probably not get much sleep the night before and may even go out for a couple adult beverages. While I certainly did not suggest that I would be a hostile witness, I did say I was unsure about how effective I might be.

On the other hand, I said, if you engage me, I will find the workfile and take the time to refresh my memory. We will have prehearing conferences to discuss my report and I can even review the other witnesses’ report which most likely would assist you with cross examination strategies. I will get plenty of rest and a good breakfast and have my “A” game on. The attorney apologized immediately and said they didn’t mean to offend: “Of course, of course we will engage you. Some appraisers require a subpoena.” I told attorney Smith, “I don’t require a subpoena, I require a check.”

Stressed Out
Many years back a local appraiser called me in a panic. She had received a subpoena and was a nervous wreck. My first question was, “What did it say? Did it instruct you to appear or for you to also bring your appraisal report and workfile?” She said she was only required to show up. I said, great, don’t look at the report and don’t even begin to search for the workfile. She said she already had. After smacking my forehead, I explained to her this was a mistake because now that she had refreshed her memory, she would have to speak on those matters.

First advice: never review anything. Then you can answer the tough questions honestly with, “I don’t remember.” This will make the attorney look very foolish when they ask if you brought the report or whether you had reviewed your workfile before appearing in court that day. After truthfully answering “no,” the attorney’s follow up question would likely be, why not? You can answer, truthfully, that you didn’t bring it or review it because you weren’t asked to.

My next advice to this appraiser was to call opposing council to see if they would like to engage her as their expert. Well, my appraiser friend did neither and stressed about the hearing all the way up to the big day. After sitting in the courtroom for hours, she asked a clerk to see when the case would be heard. After a few minutes the clerk returned only to advise this stressed-out appraiser that the case was settled two days before. Apparently, no one had bothered to inform her. Just goes to show what many attorneys think of you.

Duces Tecum
Over five years ago, I received a SUBPOENA DUCES TECUM. What the heck is that? It looked very official and came by certified mail. It commanded me to provide some 15 documents to an attorney with regard to a mortgage company being sued.

I went to visit my good friend, George K. Cox, MAI, who, at that time, was probably the most knowledgeable valuation expert around and knew real estate law better than most attorneys. George asked if I was licensed in Indiana, where the case was being held. I was not. He asked if I had ever done any work in Indiana. At the time, the answer was no. Finally, George said he didn’t think they had any authority over me. I decided to also get a legal opinion. I spoke to three attorneys who all concurred the subpoena wasn’t worth the paper it was written on. Once again, another legal firm trying to steal my services.

The truth is, if I had complied and simply packaged up the file and the requested documents, I may have been in violation of USPAP as it was not a directive of the court but a request of an attorney. After 30 days expired and I didn’t comply, what do you think happened? Did the Sheriff come and place some bracelets on me? No, I received another letter from this law firm indicating I failed to comply with their commandant. I was in an airport going over my mail when I saw this and called their office. It is probably a good thing their office was closed. I left a “strongly worded” message telling them to cease all contact with me, to stop trying to steal my services, and to never send me another piece of mail, unless of course there is a check in it.

Now I am no attorney and I interpret things from a layman’s position only, so please don’t construe anything you read here as official or an opinion of law but one day, I told this story in a class and a student, who is an attorney, enlightened us. He said a SUBPOENA DUCES TECUM is issued in lieu of a regular subpoena. If I didn’t comply they could issue a subpoena. Well, if this is the case, couldn’t regular letterhead suffice instead of sending a letter that looked like an official court order? And if the Indiana court had no authority over me and they wouldn’t have been able to enforce it, wasn’t it just a bluff, a trick to try to steal my records? “Good point,” the attorney/student said.

About the Author
Bryan S. Reynolds is a registered agent with the TN State Board of Equalization, Certified General Real Property Appraiser and an AQB Certified USPAP Instructor. Mr. Reynolds has been an In-State Instructor for the International Association of Assessing Officers, IAAO, and presently serves as an adjunct senior faculty member of The Columbia Institute, and is an approved appraisal instructor in 31 states.

Reynolds is the owner of Reynolds Appraisal Service and a partner in the ad-valorem consulting firm The Bryclan Group, www.thebryclangroup.com. He provides various residential and commercial valuation services, consulting and litigation support services throughout the region and is available for lectures worldwide. He can be contacted at (270) 929-3088 or by email at bryan@reynoldsappraisalservice.com or bryan@thebryclangroup.com.