How to Define and Conquer the Next 365 Days with Unimpeachable Neutrality

As the temperature drops and the holidays creep in, case after case either settles or, even better, is granted a three-month continuance. Now you finally have the time to take a long hard look at the lessons you have learned this year, lessons you have applied from years past, and start defining next year’s conquest(s), whatever they may be. This fourth article of the Unimpeachable Neutrality series discusses how the lessons learned help to define and conquer the next 365 days

[su_pullquote align=”right”]Resources:

Consultants’ Training Institute—Professional Education

Experts Sabotaging Themselves in Court—The Judges Tell All

The Expert’s Role in Financial Litigation—Real-World Guidance for Managing the Engagement

Corporate Divorce Litigation—Understanding its Dynamics and Formulating Solutions

Experts Sabotaging Themselves in Court—The Judges Tell All

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As another year ends, that case you were told would never settle, finally settles for the amount you calculated six months ago.  Then, that never-ending divorce finally gets put to bed shortly after convincing your client to let the ex-spouse keep both the hutch and the dinette set (they were the ex’s late aunt Sallie’s, I see their point).  As the temperature drops and the holidays creep in, case after case either settles or the court grants a three-month continuance.  Now, you finally have the time to take a long hard look at the lessons you have learned this year, those applied from years past, and start defining next year’s conquest(s), whatever they may be.  This fourth article of the Unimpeachable Neutrality series discusses how to define and conquer the next 365 days with Unimpeachable Neutrality.

Lesson 1: The Customer is Not Always Right

Whoever came up with the saying “the customer is always right “was either a fool or a liar.  Saying the customer is always right is kind of like saying my seven-year-old always knows the most age appropriate time to turn off the Xbox on a school night.  Yet, like clockwork many of us do not hesitate to drink the client concocted Kool-Aid whenever another divorce attorney comes calling who has a semi-retired client in an unfortunate divorce who has a business (with a super low value).  Take it all in with a grain of salt (trust but verify or risk an epic failure).  I tend to look at clients sort of like my kids.  If I let my kids eat cookies for dinner, it is my fault when they get a tummy ache.  If you let your clients dictate the conclusions or advice you have been retained to provide them, you have effectively failed to do what you know is best for them and may follow their lead into a very bad situation.  Sometimes the most helpful advice you can give a client is the truth.  Attorneys and clients alike can appreciate an honest opinion of how valuable or invaluable a case, acquisition, or business is or is not.  They certainly appreciate when this transparency allows them to focus their client’s resources on more viable things like proving income for alimony purposes and dividing or valuing retirement assets.

Lesson 2: All is Fair in Love, War, and Litigation

Use caution when being deposed by a former client; good attorneys have no shame in using your best material against you.  There is nothing like the “oh no he didn’t” feeling you get when opposing counsel asks you some of the very same questions you so proudly drafted for them last spring.  The same expert slaying questions you drafted to impeach some poor up and coming but unfortunate young expert is now and forever fair game.  Moreover, do not expect former clients or co-counsel to go easy on you when you find yourself on opposing sides in court.  Opposing counsel has an ethical duty to advocate for their client by verbally beating the opposing expert up in deposition or trial, regardless of how many times they may have retained you in the past or the number of Christmas parties you have attended at their office.  Much like the punch served at last year’s holiday bash, financial litigation consulting is a potent mix of love and war where nothing is sacred, respect is hard to come by, and no one can be trusted.

Lesson 3: When Given Lemons, Make Lemonade

It is easy for a financial expert to get overwhelmed by the constraints of work and life.  There generally is no such thing as a work-life balance when you have court Friday, a final hearing on Monday, two reports, and a soccer game Tuesday, all on top of a deposition somewhere in there that you have yet to receive a subpoena duces tecum for but conveniently was scheduled the same day as your parent teacher conference next week (so you do not forget).  This will either break you or make you in this field.  To get by or even stay sane, you can either eat lemons or make lemonade.  I prefer the latter, myself.  Instead of trying to achieve the myth of a work-life balance, multitask by practicing your testimony on your kids on the way to school.  If you can teach two teenagers and a seven-year-old the basics of linear regression during a ten-minute car ride, convincing a jury should be easy,

Lesson 4: Do not Assume You Know Less than Your Client

Now, I am no lawyer, nor do I practice law.  But I do know a ton about divorce relevant to business valuation and the property settlement phase of matrimonial litigation.  Divorce law, for example, is actually a very complex and state specific field of law that not all lawyers are well versed in.  No matter if your client is a former Supreme Court Judge, or the best plaintiff or defense attorney this side of the Mississippi, this does not mean they also know a thing about divorce law.  In fact, even the most astute clients may not even begin to grasp the most basic nuances embedded within divorce law, commercial damages, or personal injury on a state by state basis.  You have not lived until you have had a screaming match with a former Supreme Court justice over the subtle but distinct difference between personal and enterprise goodwill.  If you feel like your client may benefit from another attorney as co-counsel or even a conference call, suggest a simple phone call to break the ice.

Lesson 5: Never Expect Perfection, but Strive to Facilitate it

Whether you want to admit it or not, the only person that has a harder job than the expert is normally the trier of fact (i.e., your Honor).  The reality is that most bad case law derives from bad expert testimony that was either poorly rendered or intentionally skewed.  While it may seem counterintuitive, no court system is perfect and all legal matters involving one or more human beings in a courtroom are subject to fallibility.  No court, judge, referee, umpire, or FINRA arbitration panel can overcome this human component.  However, the path to finding the right number will always begin with fundamentals, principals, and methodologies and end with a result that can be supported by facts, data, and evidence.  Let me be very clear, there is no failsafe audit program, technique or theory, made mandatory or otherwise, that will withstand the flawed results of a shoddy audit, unsupported valuation, or misrepresented financial position limited to that which was done the SALY (same as last year).

6: Nothing Worth Conquering is Achieved Without a Fight

When your job title is expert and your duties include educating judges, debating lawyers, writing small novels, and testifying in court, you either missed career day in high school or are one of the brave who choose to be a financial expert witness.  Even the most tenured NACVA experts may find themselves at times, feeling not so reasonably certain, or more likely than not the same expert they once thought they were.  The world financial professionals knew is all but gone, leaving new risks, threats, and battles to win.  The reality is that nothing worth conquering can be attained without a fight.  Intellectual capital (in the form of continued professional education) is the most important thing a financial professional can invest in, as it is the only investment that will never be taxed, never lose value, and most certainly is needed to conquer whatever 2018 has in store for you.  See you next year.

C. Zachary Meyers is a licensed Certified Public Accountant (CPA) and Certified Valuation Analyst (CVA) who has been retained in over 1,500 engagements as a testifying expert, consulting expert, or joint/court appointed expert for civil, criminal, tax, and matrimonial litigation matters, arbitrations, and mediations. He has testified and been qualified as an expert in Forensic Accounting, Business Valuation, Retirement/Pension Valuation, and Income Tax in Federal District Court, State Court, and Family Law Court. Mr. Meyers was elected to the National Association of Certified Valuators and Analysts (NACVA) Standards Board in 2016 and appointed Vice-Chair in 2017.

Mr. Meyers can be contacted at (304) 690-2619 or by e-mail to czmcpacva@CZMeyers.com