The Role of an Expert Witness in Real Estate Litigation

April 25, 2025

In a real estate market as hotly contested as the California Bay Area, it’s not uncommon for property owners to be drawn into a variety of litigation situations involving tenants, neighbors, or even local jurisdictions. While having a skilled legal team on your side is an obvious necessity, there is another weapon at your disposal that can help you win your case – the expert witness.

At Edrington and Associates, we understand the vital role that an expert witness can play in helping the judge or jury better understand your case and influence their decision in your favor. In today’s post, we’re going to help you understand exactly what an expert witness is, and how it can help you in real estate litigation

What is an Expert Witness?

In court proceedings, an expert witness is someone who has special knowledge, education, experience, or skill in a particular field that is greater than what an average person would have. Their job is to help the judge or jury understand a complex subject that is relevant to the case.

An expert witness may be called upon by the defense or the plaintiff to explain technical aspects of a case, give their analysis of evidence, or otherwise offer their professional opinion on a subject.

An expert witness is typically well established in their field, and should be able to give an impartial opinion on a matter – they should not show any bias towards whomever hired them. Their testimony should be used only to strengthen a case, or to help explain the significance of evidence or other key points.

The Importance of an Expert Witness

Sometimes the role of an Expert Witness is under-appreciated in our legal system. Expert witnesses assist the triers of facts to come to better and more informed verdicts in our legal system.

An expert witness provides credibility and explains complex information that helps bridge the gap between evidence and the trier of facts’ understanding. Without them, the trier of facts would not have a full understanding of the case they are ruling on, and would be guessing at their interpretation.

What is California Evidence Code Section 801?

In California, Evidence Code Section 801 legally defines the role and purpose of an expert witness. California Evidence Code Section 801 specially states:

“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness(…)”

What this means in real terms is that the expert must exhibit more knowledge than an average lay person would in the same field. An expert witness testimony must be based on specialized knowledge, as well as personal experience, that will ultimately help the judge or jury make an informed decision on the case.

Which Types of Expert Witnesses Can be Useful in Real Estate Litigation Cases?

There are a wide variety of instances where an expert witness can be called upon to help strengthen your case. In cases involving issues like property valuation disputes, breach of contract claims, construction defects, and zoning and land use regulations, expert witness testimony can help tip the jury in your favor.

Some examples of professionals who could serve as expert witnesses include:

Building Inspectors

A building inspector’s knowledge of things like construction, wiring, roofing and other structural issues, would be sufficiently beyond the understanding of an average person, making them invaluable as expert witnesses in real estate litigation.

Environmental Specialists

A case dealing with contamination from something like mold or asbestos could benefit from an environmental specialist, who can speak to potential health risks. Likewise, they could also be useful in an abatement case where cleanup costs are in dispute.

Engineers

An engineer’s expert testimony might support a claim of breach of contract for structural damage discovered on a recently sold property. An engineer can also testify to the causes of structural damage, or estimate repairs.

Land Use Expert

In cases where zoning regulations are called into question, a land use expert’s opinion can be introduced. Their testimony can be used to seek a variance for a specific regulation, or to gain permitted use of a property.

Property Management Expert

Property management expert witnesses can deliver testimony on topics such property maintenance, lease agreements, financial records, tenant relations, and other expert opinions on management practices.

Economic Damage Expert

The opinion of these industry experts can be used to quantify financial losses in real estate disputes. They may be called on to analyze market data and financial records to provide their opinion on economic damages and lost profits.

HOA Expert

HOA expert witnesses are called upon to analyze HOA governing documents and determine compliance with regulations and enforcement of rules. They often help with dispute resolution and governance issues between HOA members.

Broker/Agent Standard of Care Expert

These witnesses are used to assess the conduct of brokers and agents with respect to industry standards. They can evaluate and offer their opinion on a broker or agent’s compliance with industry ethical and legal obligations.

Other Experts

Real estate expert witnesses come in many other flavors, including Construction Defect experts, Land Use experts – we’ve even seen Jail Suicide experts. Who knew?

Introducing an Expert Witness in Your Case

In California real estate litigation, the process for introducing an expert witness includes several steps.

Expert Selection

Attorneys for both the plaintiff and the defendant may introduce the testimony of an expert witness to strengthen their case, as long as the experts fit the definition set forth in California Evidence Code Section 801.

Witness Disclosure

Any witnesses that are to be called upon must be formally disclosed to all parties as part of the discovery process. Witness disclosure should include the witness’s qualifications, their curriculum vitae (aka resume), as well as a summary of their planned testimony, their hourly rate and confirmation that the expert will be able to testify at trial.

Deposition Of Expert

After an Expert has been disclosed, opposing counsel has a right to depose an Expert Witness under oath. Questions about the expert’s qualifications, their opinions, and their methodology of how they arrived at their opinions are all fair game.

If the witness has prepared any reports for the case, they must be shared with the opposing counsel in a timely manner, including all files received and any files created by the expert.

Opposing counsel has a right to review all documents that the expert has based their opinions on. After the close of discovery, no new last minute evidence can be presented.

Failure to disclose evidence in a timely manner can lead to not being able to reference key issues at trial.

Deposition is more like an interrogation, and less like a regular conversation. The deposition acts as an opportunity for opposing counsel to find out what the expert will say at trial, and to limit the opinions offered to what was disclosed at deposition.

An expert will need to be skilled at depositions and not wilt under fire from opposing counsel. Getting kicked around at deposition is not for everybody. Some attorneys go crazy in their advocacy for their clients and have mean and nasty dispositions when the adult (“the judge”) is not in the room.

Expert Witness Testimony at Trial

During the actual proceedings, the expert witness will be subject to several forms of questioning.

Qualifications of the Expert – The hiring attorney will present the expert’s credentials and the opposing attorney will be allowed to challenge. The judge will determine if the expert is qualified to offer testimony.

Direct Examination – The retaining attorney will ask the expert about their opinions and how they arrived at them, laying the foundation of the testimony.

Cross-Examination – Once the initial examination is complete, the opposing party will have an opportunity to cross-examine the expert witness and attempt to challenge their opinions to weaken their testimony and credibility.

Re-direct Examination – After the cross examination, the retaining attorney has a right to ask more questions of the expert to clarify responses during the cross examination or rehabilitate the witness if the testimony didn’t go well.

Remember, both parties can try to leverage the testimony of an expert witness, whether or not they were the ones to retain the expert.

That means it’s important to understand the full implications of any expert witness testimony that is introduced, and be aware of the potential for that testimony to be used against your case.

Decision to Allow Testimony

The judge trying the case will determine if the planned expert witnesses for either side qualify as experts, based on California Evidence Code Section 801.

The judge will consider their experience, education, professional reputation, as well as the relevance of their testimony to the proceedings. It is ultimately up to the judge whether to allow an expert witness testimony or not in the voir dire process.

The judge can also allow or disallow testimony during the direct and cross examination of a witness. Usually this is preceded by objections from the attorneys during direct and cross examination, and the judge can sustain or overrule the attorney’s objections. New opinions, questions outside of the stated opinions, and evidence disallowed via motion in limine are valid objections.

Jury Consideration

Just because an expert witness testimony is allowed, it does not mean that testimony is the be all, end all for the case. The jury must weigh an expert witness testimony against any other evidence presented in the case, and then make their final judgment. The jury will determine if the witness is credible. If there is a “credibility gap” of the expert, the case may be doomed.

Conclusion

When a landlord/tenant or property dispute has escalated to legal proceedings, introducing the testimony of an expert witness can be an effective strategy.

Edrington and Associates has provided expert witness testimony in California real estate cases involving habitability complaints, a property owner’s standard of care, wrongful eviction, code enforcement, property management, real estate transactions and more.

If you’re facing litigation, our team of experts can help strengthen your case with expert witness testimony. Remember, being a knowledgeable expert is important – but the ability of an expert to withstand in-coming fire from opposing counsel and clearly and simply explain their opinions to the trier of facts is paramount.