It’s Only an Opinion: An Appraiser in Court
“Of the modes of persuasion furnished by the spoken word, there are three kinds. The first kind depends on the personal character of the speaker [ethos]; the second on putting the audience into a certain frame of mind [pathos]; the third on the proof, or apparent proof, provided by the words of the speech itself [logos]. Persuasion is achieved by the speaker’s personal character when the speech is so spoken as to make us think him credible.” — Aristotle
As a dirt-lawyer (and real estate broker) for more than three decades, having handled disputes over fee and leasehold evaluations, condemnations, mortgage financings, partitions, and even appeals of government-loan buybacks, by sheer necessity, I have always relied on expert opinions of value as a matter of course. As an academic, I have always looked for an appraisal resource that was more than just a bunch of numbers.
In It’s Only an Opinion, appraiser Henry Wise provides just that and more. Wise provides an inside look at the appraisal profession, one formed over decades in the trenches. Armed with several degrees and professional certifications, Wise has served as expert witness for the U.S. Department of Justice; for states, cities, and counties; and a number of regional and national law firms. He has appraised mountains, caves, and wells; air rights; and the Everglades of all things. He has assessed fee and fractional interests, joint tenancies — and has valued shopping centers, apartments, office buildings — every type of commercial real estate. A business appraiser as well, Wise has assigned value to privately held companies, to limited partnerships, professional associations, intellectual property, and other intangible assets. He certainly brings a wealth of practical experience to this endeavor. But it is his personal insight into what he does that is so revealing.
Indeed, for years, I’ve taught my law students that one person’s opinion has little significance in law. The practical reality is, only an expert can offer an opinion in court. Having championed my own experts’ opinions over the years (while, not surprisingly, trashing my opponents’!), I know all-too-well how the process works; in virtually every case that requires expert testimony, there are at least two experts, each with (not-coincidentally) diametrically opposed opinions.
Wise suggests that providing the court with expert testimony is much like the venerable art of storytelling — with both endeavors being underpinned by reasoned persuasion delivered from a seemingly trustworthy source. Sure, it’s reasoning and substantive evidence (logos) that make an appraisal credible; but its persuasive argument and the appreciable reputation (and character) of the witness that makes the numbers come alive. All of these are crucial to establishing a demonstrable and believable value, one that will help underpin the verdict. In other words, while the bare numbers are key, testifying as an expert on value is basically telling the jury a “story” — and may the best storyteller win. Evoking Billy Crystal’s “Fernando Lamas” impression, Wise keenly observes how, to an expert witness, “it’s more important to be believed than to be right.” Aristotle’s concept of “ethos” still has great relevance today.
The text is part treatise/part anecdotal/part auto-biographical. Wise supplies enough technical substance to make it useful to the practitioner but incorporates just the right amount of “war stories” to keep it fun reading. In some chapters, he provides the nuts and bolts of setting up an appraisal practice — and of appraisal methodology — discussing in suitable depth the formulae and various approaches appraisers use (in differing contexts) today. In others (sometimes intertwined) he reflects on his work as an expert witness, employing interesting anecdotes, and instructive allegories grounded in his real-world experiences. This provides an interesting counterpoise to the too-often-tedious discussion of standards-based appraisal and valuation math, and neatly underscores the appraiser’s all-too-human role in the dispute resolution process.
Wise’s text offers generic business advice as well. In appraisal, he notes, like the practice of law, our professional judgment is the product we sell; and good professional judgments are seldom made alone. “Someone needs to do the research and heavy thinking, and someone else should review that work to uncover flaws invisible to the primary author.” Words of wisdom.
I heartily recommend this book. Wise illuminates a particularly abstruse subject — interlacing formulae and allegory into an entertaining and informative biography of his life’s work. To my mind, it’s a must-read for most any appraiser, attorney, or layperson planning to negotiate (or litigate) the value of something. This would include the 60,000 or so appraisers around the globe, tax and bond-financing lawyers, estate-planning attorneys, and real-estate litigators handling partitions, leasehold valuations, and condemnations. If I was currently teaching a course in appraisal, I would not hesitate to make Wise’s book required reading.