September 03, 2014 Article

Learning to “Speak” Real Estate in Depositions or at Trial

Vague descriptions can render testimony less effective for preserving the record

by Susan Nettles Han and Ginny Willcox

Attorney: Mr. Smith, did you see any paint on trees marking the lines?

Mr. Smith: Oh, yes.                                                                  

Attorney: Where did you see the paint?

Mr. Smith: Well, we walked from here to here and saw paint over here.

Attorney: Did you see any other markings?

Mr. Smith: Yes. We walked over here and saw a fence that ran in that direction and was about yay high.

When a witness testifies in deposition or at trial, vague or imprecise descriptions can render the testimony less effective or useless for impeachment purposes or for preserving the record. This can be particularly true when the testimony is related to a real estate litigation issue. This article explores the ways a real estate litigator can either prompt the witness to speak real estate or just take on the role of speaking real estate for that witness as a sort of translator, and the potential ramifications when the real estate litigator does not.

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