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Cross-examination: how to protect yourself and the appraisal report.

Facing cross-examination is the greatest concern that a typical expert witness has when preparing to give direct testimony concerning a valuation report. The key to successfully withstanding cross-examination is adequate preparation and knowledge. This article addresses the issues that lead to adequate preparation and provides insight into the purpose and tactics of cross-examination.


Preparation for a trial involves many distinct but related activities. When presentation of a valuation report or a related type of analysis is planned, the trial attorney and the professional who provides the testimony must develop a mutual understanding of the following three principal aspects of the expert witness role.

1. The character of the expert testimony--The extent to which the testimony reflects a comprehensive, objective analysis. Should the presentation contain only selected aspects of an issue rather than addressing all salient points that might be needed to reach an objective conclusion?

2. The nature of the report--Whether the report should be a complete appraisal, a review appraisal, or a limited assignment.(2) What level of detailed analysis is necessary in an expert witness's report and testimony?

3. The manner used to deliver direct testimony and respond to cross-examination--Whether an expert will be expected to provide a lengthy presentation of an analysis or to respond as briefly as possible to a series of questions. How much of the initial presentation should be repeated or expanded to substantiate cross-examination responses?

Each of these issues is discussed in the following sections.

Advocacy versus professionalism

An expert witness's first task is to understand and to communicate the nature of his or her professionalism and associated ethical standards to the client's attorney. Most expert witnesses who testify about appraisals or appraisal practices are members of professional organizations that bind members to a code of ethics that requires objective studies and conclusions. For example, the Uniform Standards of Professional Appraisal Practice (USPAP) require an appraiser to "perform with impartiality, objectivity and independence and without accommodation of personal interest."(3)

In many instances, a professional is retained as an expert to testify only on limited aspects of a specific situation. When this occurs, an appraiser bound by the USPAP is still responsible for not providing confusing or misleading testimony.(4) A witness may be directed to narrowly focus on certain issues or facts, or to address only specific aspects of an issue when a particular set of contentions is being presented and defended. It is difficult in such circumstances for an expert to develop testimony that is totally objective or unbiased. Thus one of the first dilemmas an expert witness faces is how to be unbiased or totally objective when the questions to be answered do not cover the whole situation.

To maintain professional objectivity and to guard against damage to professional integrity in the eyes of a judge or jury, an expert witness must try to prevent being perceived as an advocate. In fact, many attorneys who work with expert witnesses explicitly advise them not to place themselves in the role of advocate. If a judge or jury detects that an expert is advocating a position on behalf of a client, they are likely to conclude the expert is biased and totally dismiss his or her testimony, however accurate it may be.

An attorney, not an expert witness, is the advocate of a client. While an expert witness is paid by a client, the fee is not tied to a requirement to give false, incomplete, or contradictory information. An expert is obligated to provide factual information and opinions based on a professional evaluation of the facts involved. If these facts and opinions coincide with the best interest of the client they are likely to be used. A client's attorney is not only an advocate but is the chief strategist for the trial. If the facts and opinions do not support the client's position, it is the attorney's job to identify the problem and to determine whether the testimony can be used. Often, an expert must advise the attorney and the client, or at least give warning, that the facts and opinions he or she has developed do not adequately support the contentions of the case.

The key to professional, ethical testimony is to follow the basic rules of preparing and giving complete, competent, supportable, and honest testimony. If possible, it is usually best to refuse an assignment when an expert's views do not support the case. If it is not possible to refuse an assignment (because of prior work already completed that must be defended or because of the threat of subpoena), the expert should advise the attorney and client of the possible points of dissension. In no event should an expert witness disregard professional or ethical requirements to present a more favorable point of view than the facts of the case and supported opinions would justify.

An expert witness has three major legal/professional obligations when delivering expert testimony. First, an expert is responsible to the court for providing truthful, competent information. Second, an expert is responsible for exercising good and true judgment based on the facts as known. Third, an expert is responsible to the profession and the public to provide information consistent with legal and ethical standards. All of these responsibilities provide the guidelines for rendering service to a client. If the guidelines are followed, a client's best interests, consistent with legal and ethical standards, will be served.

When an appraiser encounters the dilemma of reconciling advocacy and professionalism, the following steps should be taken.

* Define and discuss with both client and attorney the ethical or professional standards that may produce bias or cause conflict.

* Identify the facts of the case in an objective and professional manner, using logic rather than preconceived ideas to array the facts and identify what is relevant.

* Evaluate the facts and, using relevant logic and theory not restricted by the contentions in the case, draw conclusions regardless of which side of the case the conclusions support.

* Avoid getting emotionally involved with a case or client, because this can lead to the failure to realize obvious weaknesses. An opposing side will not only understand these weaknesses but will focus on them when its side of the case is presented.

The issue of the limiting condition

Many standards of professional practice contain a limiting condition that attempts to restrict difficult or unreasonable demands made on a member who serves as an expert witness. For example, a code may state that an appraiser "is not required to give testimony or to appear in court . . . unless arrangements have been previously made therefor."(5) A professional should understand that this condition only applies when an appraiser is making arrangements with a client to appear as an expert witness. It does not bind the opposing attorney in the process of discovery. Further, this condition does not protect a witness from being requested to appear at a deposition or trial on short notice or from being subpoenaed to appear.


An expert witness must prepare for a trial, even when the testimony is based on prior research. Failure to understand the nature of what will be asked or to be prepared for an appropriate response permits both sides of a case to use an expert's credentials and opinions for any purpose they choose. Even when seemingly innocuous testimony is being requested, an expert has a professional obligation to be prepared and to fully understand the case to prevent the misuse of her or his professional reputation. The normal steps of preparation include:

1. Review previously prepared materials--A review of facts already discovered and analyzed is in order to refresh memory or to identify whether additional data are needed. Materials prepared by others relating to the expert's testimony should also be reviewed and potential inconsistencies identified.

2. Gather new information and prepare new materials--New information and materials may be needed. These may consist of nothing more than updates of market conditions since earlier conclusions were drawn. It might also require data on new comparable properties or more detail on existing comparables that were used in the original analysis. In many instances this is the main activity for pretrial preparation. If it is a complex, time-consuming job--and it usually is--plenty of time to perform the research and coordinate the material with other trial materials should be allowed.

3. Establish conclusions and opinions--After reviewing, collecting, analyzing, and reporting (if necessary) on research activities, the conclusions and opinions need to be explicitly identified. This establishes an order and priorities for delivering opinions in testimony, and distinguishes between principal, supporting, and minor aspects of testimony.

4. Coordinate through the client's attorney--Having prepared basic conclusions for testimony, an expert's materials must be coordinated with other salient activities involved in the case (i.e., consulting with the attorney, client, and others involved about the expert testimony). These activities often involve:

* Considering and analyzing materials prepared by other experts for comparison purposes and to see whether other materials bring out new points that may need to be considered.

* Introducing the other experts to the material that you prepared and possibly explaining your logic and conclusions to them.

* Integrating the materials from all experts to eliminate such problems as logic errors and unnecessary inconsistencies.

* Assisting the attorney when he or she develops a strategy for delivery of all expert testimony in general and your testimony in particular.

5. Prepare testimony and rehearsals of direct testimony--After existing materials are reviewed, new materials and data are obtained as needed. Then, after coordination with the client's attorney an expert witness can prepare the testimony he or she intends to deliver on the stand.

Rehearsals of direct testimony are legal and proper. Rehearsals are ethical so long as an attorney or client does not direct or dictate an expert's testimony. Most experts need some level of rehearsal simply to understand their role. Rehearsal for trial can range from a brief, informal conversation with the attorney concerning the issues to a lengthy, formal, role-playing situation. Coaching the witness takes on a negative connotation when accuracy and truth are being sacrificed, or if an expert witness is persuaded to change facts to suit the needs of the case or change a conclusion in the client's favor. During such a rehearsal the following items should be considered.

* An attorney, with an appraiser's help, should develop a list of questions to be asked that qualifies the appraiser as an expert.

* The extent of direct testimony should be specified. In some cases an attorney will want an appraiser to go through the analysis step by step and in great detail, while in other cases he or she may want the witness simply to state conclusions.

* An expert witness should be prepared for at least the obvious questions he or she will face under cross-examination. It is advisable for an expert to actually try to answer them during a rehearsal session just to see how the responses sound. How clear would they be to a jury? How concise are they?

In addition, especially if a witness is preparing to go on the stand for the first time it is a good idea to visit a trial that is using experts. If possible, a trial that involves an appraisal or market study should be observed to gauge the detail and the accuracy of the responses, and the actions of the cross-examining attorney should be noted. This foreknowledge will help to eliminate anxiety and stage fright.


During the initial discussions with a client and client's attorney, a decision about the report's format must be made. This format can be a set of handwritten notes and a memo to the file or a formal narrative report. The implications of each of these two reporting procedures need to be clarified.

Testimony from previously prepared notes

The note format usually indicates that while an expert has prepared materials and drawn conclusions based on studies conducted specifically for the trial, no formal report is being introduced into evidence. Any written materials prepared as part of the assignment before testimony is delivered, including a file memorandum, may be subject to review by an opposing side. In some instances the opposing side may require such materials to be produced and even introduced as evidence. An expert therefore must consider the format of interim reporting as well as how the testimony will be finally delivered. When an expert brings notes, files, interim reports, or any other materials to the witness stand, these are subject to review by the opposing side. Discovery of materials requested but not produced at pretrial hearings would be a basis for an objection or a challenge.

Testimony based on a written report

When a written report is used as a basis for testimony, it is almost always introduced as evidence in some form, and is thus also exposed to the opposing side at pretrial hearings. Thus, the opposition has a full opportunity to review, question, challenge, and prepare rebutting testimony. An expert witness and an attorney must be prepared to fully defend any facts and conclusions contained in written materials. Even when only a part of a report is used, other facts and conclusions in the report must be defended, though they may not support the contentions being argued in the case. Preparation for this type of testimony is usually the most time-consuming; however, most appraisers deliver testimony in this format.

Reconciling report objectives with trial objectives

When a report is written exclusively for a trial, an appraiser should spend additional time defining the objectives of the client and the nature of the problem. The problems analyzed in the report and the questions answered by the report must not go beyond the same problems and questions the expert is being asked to address at the trial. The limited objectives of a study and report should be clearly specified in a contract or scope of services letter to demonstrate the limits of the testimony an expert is supposed to deliver.

Extra care at this stage of the process minimizes or eliminates the potential problems an expert may face in the witness chair. Once a report is finished, it is not only given to the client but to the opposing attorney through the process of discovery. If a report has to be revised or supplemented after an initial copy is given to the opposing attorney, both versions are subject to scrutiny and a whole new line of questioning can arise under cross-examination.

Timing the study and the report to coincide with the trial date

At the outset of an assignment an attorney can provide only a guess about the trial date. There are many factors that can push back the beginning date of a trial, such as

* Extensions in the discovery process

* Delays in the summary judgment process

* Unavailability of either lawyer or a principal witness (for legally acceptable reasons) on the trial date

* Mistrials or extensions of other scheduled trials in the same court

Experts must thus prepare for a moving target. Not only must the date of the inspection, the date of the report, and the date of the analysis (i.e., current, past, or prospective) be carefully identified, but the date of the testimony must also be added to this list. How important is the date of testimony? In most instances this date is not significant to the presentation of testimony. In some instances, however, an expert witness may be asked to analyze factors as of the date of testimony. This creates an urgent situation in which an expert must analyze and prepare to give testimony at the last minute. These time-constrained activities often produce considerable stress and anxiety that can affect performance on the witness stand.

Using the report as evidence

When a report is being used for trial evidence (an explicit statement of the "use of the appraisal"), the following extra precautions should be taken in report preparation.

* Expand the intensity of site inspection to ensure intimate familiarity with the subject property.

* Expand and intensify the search for comparables or the survey of the competition so the expert can demonstrate knowledge of significant details in making comparisons and identifying differences between properties.

* Commit any assumptions and reasoning to paper. Ask a colleague to provide a critique by playing the role of "devil's advocate."

* Eliminate "boilerplate" in the report. Know why everything is there and how it all fits together.

* Check and recheck the logical flow of the report and the chain of events it contains, from data to analysis to conclusion. Make certain the logic is clear and can be explained without additional information.


A cross-examination can be a difficult and even traumatic experience if an expert witness is unprepared for it. The manner in which an expert witness protects his or her professional reputation and the report under cross-examination is a matter of great concern to most professionals.

Cross-examination can be viewed as a two-part process that includes the deposition as well as the formal cross-examination after direct testimony is given. As a prelude to considering cross-examination, some issues regarding the deposition process are examined.

The deposition

A deposition is typically the first meeting between an opposing attorney and an expert witness. Since the deposition affords an opposing attorney the opportunity to determine or discover the nature of the testimony an expert will provide, the expert should understand the type and detail of testimony supposed to be delivered at the trial. An expert will usually have the opportunity to make changes between the time the testimony is delivered at the deposition and the time the testimony is delivered at the trial. When such changes are made, an opposing attorney is likely to ask about the differences and explore the reasons for the changes during the trial.

Although it may not appear to be the case, at a deposition an expert witness is considered to be in almost total control of the flow of events. The person being deposed can take a break from the proceedings or confer with the client's attorney whenever and as often as needed. Because the court reporter is still recording all comments, however, it is often advisable to confer with the attorney in whispers or ask to confer in private.

In responding to questions during a deposition, an expert witness may take whatever time is needed to consider the question, formulate a response, and then deliver it.

A deposition is an opposing attorney's chance to obtain information about the nature of expert testimony. An expert witness should not consider the deposition as the place to volunteer information not specifically requested, however. The best rule of thumb is to answer the question asked without expanding the scope of the question beyond what is asked. Supplemental information should not be volunteered. If an opposing attorney is well prepared, he or she will ask questions to extract the testimony. If, on the other hand, an opposing attorney is not prepared for the deposition, an expert witness is not obligated to do that job for him or her.

At a deposition, an expert witness should be prepared to reveal all aspects of his or her testimony. But expert witnesses do not have a legal or ethical imperative to provide complete information on all aspects of their knowledge about a subject situation unless they are directly questioned about specifics in their testimony. Taking this posture still allows a witness to be professional by being "complete, competent, supportable and honest"(6) as well as unbiased. An expert witness should not perceive a deposition as an opportunity to convince the opposing attorney that certain opinions and judgments are correct. As an advocate, an opposing attorney's concern is to question the credibility of an expert's opinions and judgments regardless of their correctness.

Objectives of cross-examination

The purpose and objectives of cross-examination are summarized in Figure 1. A cross-examining attorney would like to achieve the first objective--to destroy the effect of an expert witness's direct testimony. But adequate preparation of the report and adequate preparation for the trial will keep the cross-examiner from achieving this goal.

In reality, the best that a cross-examining attorney will be able to achieve is one or several of the other objectives mentioned in Figure 1. The better the initial report and the trial preparation, the less the cross-examining attorney will be able to achieve. If the report is well prepared, the cross-examining attorney may not be able to dilute or neutralize the direct testimony, or show inconsistencies within the direct testimony or between the direct testimony and the deposition.

At best a cross-examining attorney will have to settle for achieving objectives 3, 4, 7, or 8 in Figure 1. An expert witness can even guard against providing favorable concessions, however, by identifying for the client's attorney where concessions can be made without damaging the validity of the major thrust of the testimony. Early disclosure of these types of concessions permits the client's attorney to build them into the overall strategy for presenting testimony.

A cross-examining attorney may also try to make an expert witness appear ignorant or inaccurate on specific points as a means of undermining the credibility of the witness. An appraiser can guard against this with relatively simple remedial measures--by staying current with the literature of the field, by rechecking the analysis for mathematical mistakes, by proofreading for misstatements, and by checking the spelling and grammar.

Adequate preparation and knowledge can eliminate or at least weaken the ability of a cross-examination to negate or dilute the value of expert testimony. A well-prepared witness should not fear cross-examination, but an ill-prepared expert can be greatly humbled by even a modestly prepared cross-examining attorney.

An attorney's guidelines on cross-examination

Attorneys may use guidelines in preparing for cross-examination such as the ones shown in Figure 2. A discussion follows of how these tactics may be implemented and could affect expert testimony.

Decide whether cross-examination is necessary and never cross-examine unnecessarily

An attorney will cross-examine whenever the process will benefit the case. If expert testimony is potentially damaging, cross-examination is warranted to defend the contentions of the case. The extent and intensity of cross-examination will depend on the opposing attorney's perception of the weaknesses of the expert's direct testimony as well as the weakness of his or her responses to the first few questions that are asked in cross-examination. Adequate preparation for direct testimony, familiarity with details of the analysis, and a justification for each step of the analysis will protect an expert witness and minimize the stress of cross-examination.

If direct testimony is not damaging to the opposing attorney's case, two things may occur. First, the nature of cross-examination will probably be short and direct, eliciting the facts that favor the opposing side or discredit the contentions of the case. Second, the opposing attorney may simply bypass cross-examination and bring out the facts during the closing argument.

An expert witness must realize his or her role is to present testimony that damages the contentions of the other side. Attacks on an expert's credibility and conclusions should be expected as part of the cross-examination.

Develop a plan for cross-examination and a technique to execute that plan

Prior to direct testimony but after the deposition is taken, an opposing attorney generally formulates a plan for cross-examination. The points of weakness and confusion in a report and verbal presentation are usually identified. An expert's demeanor under questioning is observed. The degree to which a witness can be confused or angered is gauged. During direct testimony, an opposing attorney finalizes the cross-examination plan, noting any deviation of direct testimony from testimony given during the deposition. If there are any changes in the material testimony, the witness should prepare an answer to explain the reason or need for that change.

If cross-examination is necessary, difficult preparation is required

When a deposition reveals that cross-examination of an expert is necessary, the opposing attorney will usually undertake any steps required to understand the topic that is being questioned. This knowledge may be acquired from years of practice and experience; by association with a partner with relevant knowledge and expertise; from other appraisers who are serving as advisors, consultants, or expert witnesses for that attorney; or by studying pertinent information about the topic. The point is that a cross-examining attorney is not just a person with a list of questions. One must assume that the cross-examiner possesses a base of knowledge and will be a formidable opponent. The opposing attorney's level of knowledge, however, will not surpass the expert's if the assignment is done well.

Stop when the point is made

When an opposing attorney undertaking cross-examination has gained a concession, has shown that a conclusion is based on weak evidence, or has extracted an unsupported conclusion from an expert witness, that line of questioning will usually stop. Once a point is made, the opposing attorney can wait to refresh the jury's collective memory during the closing argument.

It will not serve the opposing attorney's purpose to repeatedly return to the same point. This tactic could make the jury indifferent or even irritable. Either of these attitudes is undesirable to an opposing attorney. If an expert witness must concede weakness in the testimony, this should not be unnerving. The best way to avoid embarrassment or anger is to recognize the weakness before cross-examination, focus on the strengths of the testimony, and let the weakness fade.

Do not browbeat an opposing witness

When an opposing attorney attempts to extract an important point on cross-examination, he or she will not browbeat or try to intimidate an expert witness. Even though this tactic may serve to fluster the expert, it can be viewed unfavorably by a jury and could even draw a statement from the judge to be more courteous. Neither of these alternatives is desirable. For the most part, the questioning can be expected to be undertaken in a civil and courteous manner. While an opposing attorney may appear rather sarcastic, the extent of any attempt to intimidate a witness with hard and biting questions will be limited.

Do not allow an opposing witness to be evasive or verbose

During cross-examination, an opposing attorney does not want an expert witness to give long, drawn-out narrations as answers. Further, an opposing attorney does not want an expert to give evasive answers. To guard against these occurrences, an opposing attorney must first structure the questions in such a way that long explanations are not possible. A question is usually phrased so that it must be answered directly and most desirably by a simple yes or no.

An expert witness must realize that there are options beyond just a yes or no answer. The witness has the right to explain the reason for an answer, but the explanation has to be linked directly to the question. For example, a witness may answer, "No, but the reason for this conclusion is based on . . .," or "Yes, because the . . . occurred." A witness also has the right to ask for a clarification of the question and the terms used in a question. A response to "Did you inspect the comparable property?" could be negative because it was not available to physically inspect, for instance. To the attorney, however, the term "inspect" may have simply referred to the data contained in the data file for this property. In that case the best answer would be yes.

Double-barreled questions can be treacherous. They are easily recognized because they contain the word "and." For example, for the question, "Did you personally inspect the subject property and analyze the data files for the comparable properties," the best answer is yes. For the question, "Did you personally inspect the subject property and the comparable properties," however, a proper answer is less apparent. If the witness focuses on the first part of the question and answers affirmatively, he or she may be asked to state the dates on which the comparable properties were inspected. Because the data on comparables were taken from data files, the witness now would be forced to change the answer. If the initial answer is negative because the witness focuses on the second part of the question, he or she may be asked whether to value a property without inspecting it is acceptable practice. Again the answer must be changed. This vacillation does not give the jury a good impression.

The point to remember is that an expert witness must stay composed and listen to the full question before answering. It pays to think before speaking even if one has to hesitate for a few seconds before answering. The tactics of an attorney on cross-examination could be to use terms introduced by an expert in a slightly different way or to use double-barrelled questions in an attempt to confuse a witness.

Do not allow an opposing witness to elaborate or emphasize direct testimony

A cross-examining attorney will usually word questions in such a way that a witness is not provided an opportunity to restate direct testimony (unless it contains weaknesses or contradictions). The purpose of cross-examination is to destroy, dilute, or neutralize direct testimony rather than to allow it to be heard a second time.


Even an appraiser who has given previous expert testimony may be surprised by traps that he or she did not anticipate. An expert witness's relationships with a client and the client's attorney are critical in evaluating and deciding whether to accept an assignment. Once an assignment is accepted the ability to understand the roles of both the client's attorney and the opposing attorney are critical to proper preparation for the role of expert witness. While there are numerous rules that should be observed for an appraiser to be an effective expert witness, the best preparation includes the following remedial measures.

* Understanding of the courtroom environment

* Appropriate preparation of testimony

* Familiarity with the technical details and supporting evidence needed for acceptable testimony

* Control of overreaction to legal maneuvers or barbs intended to test credibility and competence

Joseph Rabianski, PhD, is a professor in the department of real estate at Georgia State University in Atlanta. He received an MS and a PhD from the University of Illinois.

Neil G. Carn, PhD, is a professor in the department of real estate at Georgia State University in Atlanta. He received an MS from Florida State University as well as an MBA and a PhD from Georgia State University.

FIGURE 1 The Purpose and Objectives of Cross-Examination

1. To destroy the effect of the expert witness's direct testimony

2. To dilute or neutralize the effect of the expert witness's direct testimony

3. To obtain favorable concessions from the expert witness

4. To obtain admissions that reveal ignorance and/or inaccuracy on the part of the expert witness

5. To show that the direct testimony contains inconsistent statements

6. To show that the direct testimony is not consistent with statements made in the deposition or in the report that is the subject of the trial

7. To show that the direct testimony is not consistent with statements made in other reports or public statements about the subject property made by the expert

8. To show that the direct testimony is not consistent with the opinions of other experts retained by either side in the case

FIGURE 2 An Attorney's Guidelines on Cross-Examination

1. Decide whether cross-examination is necessary and never cross-examine unnecessarily

2. Develop a plan for cross-examination and a technique to execute that plan

3. If cross-examination is necessary, difficult preparation is required

4. Stop when the point is made

5. Do not browbeat the opposing witness

6. Do not allow an opposing witness to be evasive or verbose

1. See "The Appraiser as Expert Witness," an Appraisal Institute seminar written by Joseph Rabianski and Neil G. Carn, for information on the steps necessary to prepare for and follow up on cross-examination. Some materials included in this section are extracted from materials prepared for that seminar.

2. The Uniform Standards of Professional Appraisal Practice (USPAP) permit an appraiser to take on a limited assignment only when the resulting report or testimony will not confuse or mislead. The burden of proof is on the appraiser, not the attorney, to determine whether requested testimony is confusing or misleading.

3. Appraisal Institute, Standards of Professional Practice of the Appraisal Institute (Chicago: Appraisal Institute, 1990), B-2.

4. Ibid., B-5.

5. See Contingent and Limiting Conditions: 3 on the Freddie Mac Form 439/Fannie Mae Form 1004B JUL 86.

6. Standards of Professional Practice of the Appraisal Institute, B-2.

7. The list of objectives for cross-examination were developed from Sidney Z. Serles, "Examination and Cross-examination of Appraisers in Eminent Domain," Institute on Planning, Zoning and Eminent Domain (Dallas: Southwestern Legal Foundation, 1973): 339-377.
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Title Annotation:appraisers as expert witnesses
Author:Rabianski, Joseph; Carn, Neil G.
Publication:Appraisal Journal
Date:Oct 1, 1992
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