How to Use Expert Witness Testimony in Foreclosure Defense

While exclusion of expert witness testimony is expressly considered a drastic step, the court is under virtually no constraints as to the weight it gives to such testimony.

The bottom line is that hidden in the rules there are two types of expert witness testimony — fact and opinion. Fact testimony is generally given far more weight than opinion. And fact opinion is what gets the court to believe or allow for the possibility that the witness’s knowledge actually contributes something to the court proceedings. I believe that most conclusions from an expert are pretty much worthless.

But facts and factual conclusions based upon technical knowledge, technical standards and proof of application of clear standards goes much further than opinion evidence, which almost always transgresses upon the court’s right to make final conclusions of law and fact.

So the object is to establish specific issues that you have identified to be in issue, identify specific terms of art used in the marketplace by players in that market, and create a narrative that puts the definition of those terms in issue. That pretty much forces the judge to at least consider the testimony.

To set the foundation for all that I think you need to conduct discovery and then use the objections of the the opposition to highlight the fact that the definition of terms is in dispute.

See “The Daubert Expert Standard: A primer for Florida Judges and Lawyers.” Thomas S Edwards and Jennie R. Edwards. Florida Bar Journal, March/April 2020 Page 9.

2 Responses

  1. That is correct Summer. I tried to get expert testimony in for 10 years –“held in abeyance.” Never got it in, and I paid for it. I pay for everything — it does not matter. The power is beyond us. But you will not win going against judges. It won’t work.

  2. I would suggest to go to your State election Boards websites and find out how much money these Judges received as “donations” from lawyers who represent banks

    This “witness testimony” ($$$ from banks) will overweight any of our evidence, no matter how much we provide .

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