Experts and Alternative Dispute Resolution

Arbitration Panels Don’t Know Everything a Financial Expert Does. But That Doesn’t Mean You Should Even Consider Talking Down to Them.

Arbitration is somewhat similar to a bench trial, but experts need to present opinions somewhat differently than if they were testifying in a jury trial—and this is particularly true with experts testifying on financial issues such as economic damages.  Joe Epps explains why.

Arbitration is very similar to a bench trial. Both venues have a relatively experienced and highly educated person (or persons if it is an arbitration panel) making a decision. In such a process, using a well-qualified expert can be very effective. However, the expert presents their opinions somewhat differently than if they were testifying in a jury trial. This is particularly true with experts testifying on financial issues such as economic damages.

When an expert testifies in a jury trial they must tailor the presentation of their opinions to make the issues understandable to all jurors. For a financial expert, it must be assumed that there are no financial experts in the jury and that some jurors will have no business experience. These assumptions are necessary when preparing the direct testimony and impact the nature of the exhibits and the way in which testimony is given.

In arbitration, much like a bench trial, the expert must assume that the decision maker is highly educated and likely has significant knowledge of business and finance. The key, therefore, is for the financial expert to provide sufficient foundation for their opinions while not boring or appearing to talk down to the decision maker. The insights of the retaining attorney regarding the nature of the decision maker are what form the basis for the presentation of the expert testimony.

Joe Epps is a CPA and CFE with over 30 years of experience in forensic accounting. His litigation support experience includes contract disputes, anti-trust, economic damages, fraud investigations, business valuation, and intellectual property litigation. Joe is currently President of Epps Forensic Consulting and teaches a graduate course on Forensic Accounting at Arizona State University. For more information, please call (480) 595-0943 or visit www.eppsforensics.com.