The Unimpeachable Rebuttal

Pearls Clutched and Loaded

Have you ever read an opposing expert’s rebuttal of your expert report that left you clutching your pearls the rest of the day? With over 2,000 cases under my belt, I have had some true works of fiction written about me and still can be found clutching my proverbial pearls from time to time. This ninth article of the Unimpeachable Neutrality series discusses how to quell the no good, naysaying, disingenuous opposing expert rebuttal report.

Have you ever read an opposing expert’s rebuttal of your expert report that left you clutching your pearls the rest of the day? With over 2,000 cases under my belt, I have had some true works of fiction written about me and still can be found clutching my proverbial pearls from time to time. This ninth article of the Unimpeachable Neutrality series discusses how to quell the no good, naysaying, disingenuous opposing expert report.

Disingenuous Dissertation

Whether an expert report is written, oral, or a hybrid of both, the form of any report should be appropriate for the engagement, its purpose, its findings, and the needs of the decision-makers who receive and rely upon it. So, what happens when the needs of the decision-maker (opposing counsel) are an expert report that simply attacks the opposing expert’s credibility? What do you do when the sole purpose of the opposing experts report is to muddy the water of truth with lies, fibs, treachery, and deceit?

Psychopathic Soliloquy

Like dealing with a psychopathic partner, the best way to counteract the psychopathic soliloquy of an opposing expert is to call out the precise bad behavior they are exhibiting. I have identified a handful of rebuttal techniques encountered in my career and provided some helpful pointers on how to mitigate the damage intended.

• The All Problems No Solution Rebuttal—When a hired gun is retained as a hired hitman (or hit woman), shock value will typically be the objective. This type of rebuttal will pick apart any and every assumption, methodology, or opinion within your expert report without attempting to solve, opine, or conclude anything of value themselves. Such halfhearted rebuttals are easy to spot as the opposing lawyer will have hired their expert solely to take a shot at your credibility without any intention of the expert ever proffering a value, damage amount, or number. The most effective way to mitigate any damage done by this type of rebuttal is to respond directly to any criticisms while pointing out that the opposing expert has offered nothing but problems to the Court without solutions.
• The Glaring Error in Professional Judgement Rebuttal—Opposing experts left with nothing to criticize will often attempt to mischaracterize fundamental differences in preference, opinion, or professional judgement as a mistake for shock value. This is despite there being one or more very acceptable ways to perform said task, computation, or application. Such criticisms must be distinguished from actual factual mistakes or errors, as these slanderous criticisms are presented with the objective of undercutting an expert’s credibility by mischaracterizing an aspect of your expert computation as a mistake in instances where there are, in fact, more than one generally acceptable way to perform a calculation. The key to remember in this instance is that there are almost always more than one generally accepted, reliable, or known way to compute, apply, or otherwise perform a computation or calculation. Embracing this notion all but eliminates the dust kicked up by this rebuttal technique.
• The Complicated Cornucopia Rebuttal—This technique is an attempt to confuse, conflate, or corrupt the Court’s understanding of facts, evidence, or worse, your opinion. Moreover, these rebuttal reports will focus on complicating the most simplistic assumptions, theories, or variables present within your expert report. I am going to keep this section short and to the point as a matter of principle. One must be careful not to enter a wordy, lengthy, and often exhausting rebuttal battle aimed at sounding the smartest or using words with the most syllables. If your opinion or conclusion is sound, calling out this type of rebuttal for the complicated mess that it is typically will suffice.
• The Inconsiderate Considerations Rebuttal—The soundbite most coveted by lawyers is the one where an expert admits that their calculation or computation fails to consider something material or impactful to their expert opinion. So, it should come as no surprise that an expert rebuttal report is issued right before your deposition which harps on about something you considered but may not have relied upon. I am always amazed at how a child’s, spouse’s, or loved one’s testimony on household services can be turned into gospel on how much or little an injured or deceased Plaintiff performed household services. If I had to rely upon my spouse or kids to provide a valid estimate of how much or little I did around the house, I would venture to say that my damages may be speculative at best. This type of rebuttal technique is unavoidable but can best be mitigated by distinguishing that which you relied upon from that which you considered. Computing damages such that damages can be presented both annually and cumulatively is an easy way to allow for consideration of all possible factors by virtue of facilitating the trier of fact with the ability to adjust damages up or down by virtue of shortening the damage period or applying some level of impairment or percentage offset to a benchmark of damages.

When an opposing expert finds himself or herself trying to rebut an unimpeachably neutral expert report, full of conservative assumptions, reliably applied methodologies, or broadly adopted approaches, it is not uncommon for the rebuttal report to take on a more disingenuous tone. Such foley is disingenuous at best but can be extremely effective if not taken head on. While it is easy to simply respond back with an equally as nasty, disrespectful, or deceitful rebuttal report, there is no better time to exercise your unimpeachably neutral muscle.

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C. Zachary Meyers, CPA, CVA, who has been retained in over 2,000 engagements since 2011. Mr. Meyers has provided expert testimony and been qualified in Federal District Courts, Circuit Courts, Family Law Courts, and the West Virginia Human Rights Commission as an expert in business valuation, forensic accounting, pension valuation, and taxation. Mr. Meyers was elected to the National Association of Certified Valuators and Analysts (NACVA) Standards Board in 2016, appointed Vice-Chair in 2017, elected Chair in 2018, and re-elected as Chair in 2019, which promulgates professional standards for financial professionals, analysts, and experts. Mr. Meyers was appointed to the Global Association of Certified Valuators and Analysts (GACVA) Advisory Council in 2020, which liaises with NACVA’s international chapters in Africa, Canada, Europe, India, Taiwan, and Southeast Asia. In 2021, Mr. Meyers was elected to the Business Valuation Resource Panel of The Appraisal Foundation (TAF), whose purpose is preserving and improving the public trust in valuation.

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