How to Silence the Hired Gun
While evidentiary rules and ethical codes issued by professional bodies like the NACVA and AICPA prohibit accounting and valuation experts from taking an advocate position, the adversarial nature of the U.S. legal system creates a market which at times demands a â€śhired gunâ€ť expert witness who caters their opinion of damages or business value to that which most convincingly favors the side that hires them. This article discusses an expertâ€™s conceptual quest for unimpeachable neutrality and provides guidance on how to silence the hired gun, maintain oneâ€™s integrity, all while staying gainfully employed.
Opposing Experts Without Standards: What To Expect And How To Challenge Them
The Expert Witness: The Rogue, The Bad, and The Ugly
Anticipating Cross-Examination: Be Your Own “Rebuttal Expert”
Preparing an Expert Report and Being and Expert Witness
I began working as an expert witness in the fields of forensic accounting, economic damages, and matrimonial litigation in my late 20â€™s.Â It did not take long for me to realize I had entered an industry replete with convincingly technical geniuses that could pen expert reports with the power of Charles Dickens and testify with the rock star-like charisma of Gene Simmons.Â Such performances were symptomatic of a pervasive trend of hired gun experts being paid top dollar to cater their opinion of damages or business value to that which most convincingly favors the side that hires them.Â While evidentiary rules and ethical codes issued by professional bodies like the NACVA and AICPA prohibit accounting and valuation experts from taking an advocate position, the adversarial nature of the U.S. legal system creates a market which at times demands a â€śhired gunâ€ť expert witness who caters their opinion of damages or business value to that which most convincingly favors the side that hires them.Â This article discusses my conceptual quest for unimpeachable neutrality and provides guidance on how to silence the hired gun expert, and maintain oneâ€™s integrity while staying gainfully employed.
Educate vs. Advocate
The first step in becoming unimpeachably neutral and silencing the hired gun requires an expert to focus on being an educator and not an advocate.Â The primary duty of an expert witness centers around helping the trier of fact understand the evidence or determine a fact in issue.Â Conversely, a hired gun uses their scientific, technical, or other specialized knowledge to mislead the trier of fact and help their client by taking an advocate position.Â While attorneys have an ethical duty to advocate for his or her client, an expert must remain unbiased and never take an advocate position.Â Instead, an expert must embrace their role to be an educator of the court.Â Doing this requires that an expert be devoted to a career of continuous learning, independent research, and quality continued professional education.Â The neutral expert must only use this acquired knowledge to reliably apply principles and methods to the facts of a case, while only relying on sufficient facts or data during this process.
Unimpeachable Deliverable vs. Undeniably Deplorable
The ability to produce objectively unbiased expert reports is the second step towards silencing the hired gun, as the hired gunâ€™s expert opinion typically resides somewhere between a bold-faced lie and the murky grey areas that exist within our profession.Â The hired gunâ€™s expert report generally is an attempt to muddy the waters with charismatic language or confusing unnecessarily long computations. Â Behind every hired gunâ€™s expert opinion is an abundance of fundamentally unsound positions, inconsistent methodologies, and unreliable sources of data being used to bend a calculation of damages or business value toward the most financially advantageous result in favor of the party that hired them.Â The inconsistent application or creation of methodology will change form from case to case but will always display the common denominator of manipulation.
The neutral expert, through their testimony and deliverable report, must be able to effectively communicate very complex subject matter to the trier of fact.Â Reports may present a damage range rather than a single conclusion of damages.Â This type of damage presentation will give lawyers on both sides leverage to negotiate.Â Both plaintiff and defense firms can make great use of a range showing a damage ceiling based upon one reliable assumption versus a damage floor based upon a more conservative assumption.Â When faced with a tough choice as to what to use as an assumption, and all else fails, be conservative.
Theory vs. Theatrics
There is nothing like starting your Monday off with an e-mail containing a small novel written by some PhD being paid $1,000 an hour to issue a rebuttal to your unimpeachably neutral expert opinion.Â Despite the hired gunâ€™s premium hourly rate, they somehow manage to have spelled your name wrong.Â Resist the very human urge to respond with an adjective latent report discussing the erroneous, misapplication of fundamentally flawed, multi-syllable expert jargon.Â If you are like me, you may want to sit down the first time you read a hired gunâ€™s rebuttal of your work.Â Take a deep breath and set aside time to devote your undivided attention to reviewing this piece of work.
Do not take anything said in the report personal as you want to leave any emotions behind in exchange for a neutral mindset that will best focus you on the task at hand.Â Be sure to read the manifesto multiple times with the goal of being able to recalculate all arithmetic you identify within the hired gunâ€™s report.Â As you read the opposing expertâ€™s report, be sure to take note of the areas of disagreement as well as areas that you generally agree with the opposing expert.Â If the hired gun makes a valid point, you should take note of it.Â When critiquing, keep it professional, yet candid, and focused on the misapplication of theory or principle.Â Do not appease the hired guns by entering blindly into a rebuttal battle.Â Instead, compile a memorandum of observations and signs of manipulation.Â Whether for economic damages or business value, manipulation of growth or discount rates is the most likely way a hired gun will inflate or deflate value.
Agitator vs. Settlement Facilitator
It is common for the court to order one or more last attempts at settling the case as trial approaches.Â This is the opportunity that a truly neutral expert can take advantage of.Â The hired gun has absolutely no interest whatsoever in helping both sides come to a reasonable middle ground, as it would prevent he or she from performing their dog and pony show in court.Â The neutral expert, however, has thought this out and provided a range of damages or business value that both sides can reasonably be comfortable with settling a case for.Â This type of conciliatory conduct will be noted, not only by your client, but also opposing counsel.Â While the attorney on the opposite side of a case may not call you the next time they need a low damage number, they may call you when they need to know the right number or an open honest assessment of another expertâ€™s report.
Unimpeachably Neutral Expert vs. Nobody
While Daubert v. Merrell Dow Pharmaceuticals Inc. (Daubert Decision), is usually cited relative to its establishing of a judgeâ€™s “gatekeeping” role, it also encouraged judges to appoint neutral experts.Â Experts and Valuation professionals known for inflating or deflating damages or business values are less likely to be appointed as a neutral expert in civil trials or designated business valuators in a divorce.Â Consistently fair and honest professional services performed by an unimpeachably neutral expert over time will open doors to opportunities where being neutral is not only desirable, but a prerequisite.Â This effectively silences the hired gun as this market of work is off limits to those who sold their integrity for a retainer check.Â Ironically, the hired gun will have no choice but to silently ride off into the sunset as they are not qualified to perform that which requires the integrity of an unimpeachably neutral expert.
C. Zachary Meyers is a licensed Certified Public Accountant and Certified Valuation Analyst. Mr. Meyers has provided litigation support services in over 1,000 cases since 2011 as a consulting or testifying expert. His experience includes: authoring expert reports, expert rebuttal reports, and critiques related to economic damages, punitive damages, business valuation, and matrimonial litigation. Mr. Meyers has served as joint/court appointed business valuation expert in matrimonial litigation and facilitated equitable settlements for both business owner and non-business owner parties to matrimonial litigation. Mr. Meyers was elected to the National Association of Certified Valuators and Analysts (NACVA) Standards Board in 2016.
Mr. Meyers can be reached at: (304) 690-2619 or by e-mail to: firstname.lastname@example.org.