The Intersection of Advocacy and Financial Forensics

The Role of the Expert in 21^st Century Dispute Resolution

Almost five years ago, the author penned an article published in NACVA’s QuickRead April 14, 2022. In that article, he described what was his perspective as a “recovering judge” of the role of the “expert” in the 21st century profession of dispute resolution. In this article, the author revisits, and in some cases revises, the observations and predictions set forth in the earlier article.

Introduction

Almost five years ago, I penned an article similarly titled, which was published in NACVA’s QuickRead April 14, 2022. In that article, I described what, at that time, was my perspective as a “recovering judge” of the role of the “expert” in the 21st century profession of dispute resolution. At the risk of jarring the memory of readers who are old enough, and not all that happy about it, to remember former President Ronald Reagan’s famous line in his 1979 debate with then President, Jimmy Carter: “There you go again”. This article revisits, and in some cases revises, the observations and predictions set forth in my previous article.

These revisions result from spending the last many years engaged in the world of private dispute resolution as a mediator, arbitrator, neutral case evaluator, special magistrate, and consultant on dispute resolution system design and administration. Doing those close to 20 years, I have also functioned as a Maryland “Senior Judge” recalled to preside over pre-trial settlement conferences and certain complex “specially assigned” cases. These specially assigned cases include litigation in which the City of Annapolis, Maryland and the County of Anne Arundel, Maryland are suing 24 international oil companies (referred to as the “Fossil Defendants”) and a trade association for “allegedly” causing “climate change” and damages. Those “damages” include, among other things, claims to be reimbursed for the cost of additional health care maintenance, transportation, and infrastructure to address global warming “for their citizens.”

The Role of the Expert in a Changing Dispute Resolution World

In my previous article, I noted changes in the methods of dispute resolution. Those changes included the expansion of the role of the expert. The role of the expert had, until the emergence of alternative dispute resolution (ADR) in the 1990s, been limited to assisting the trier of fact at a trial in a courtroom, be it a judge or jury. That change has accelerated in the first quarter of the 21st century.

The acceleration of that change has been driven by the economics of the practice of law, the economics of the development and regulation of technology, the “culture war”, and the arguable inability or unwillingness of the judiciary and other institutions of government, including administrative agencies of the Executive Branch of both Federal and State government, to speed up its work processes to meet the needs of rapidly emerging enterprises in the “information economy” and to provide for their regulation without stifling their growth.

Specifically, even corporations which can afford to invest time and money in the form of legal fees and expert fees necessary to pursue lengthy and expensive dispute resolution processes are now much less willing to do so. This process always includes years and dollars devoted to discovery, particularly electronic and document discovery as well as motions practices. Instead, they are opting both internally and externally for various ADR techniques to settle their disputes which, if set up properly, cost less dollars and take up less time.

That means going forward, the expert opinions that NACVA members may be asked to render will depend on the dispute resolution technique agreed upon many times in advance contractually or by the parties and their lawyers as well as the timing which the contract requires and/or the parties and counsel demand. As an example, in an arbitration or litigation, your opinion as to the specific quantification of damages will likely be sought utilizing retaining counsel’s theory of the case. Alternatively, in a mediation or neutral case evaluation, your opinion is most likely to be sought to aid in a risk analysis designed to leverage the possible settlement of the case.

In fact, the opinion sought from you in a case where the overriding goal is to “settle” the case via a “business solution,” the opinion sought may have little, if anything, to do with the merits or theory of the case filed. Rather, it may be the value of one or more of the parties equitable and legal interests in the corporation or the LLC rendered for the purpose of facilitating a “buyout” of the unhappy partners, members, or stockholders rather than litigating with them.

This development has comparatively recently brought into sharp focus the role of what has been labeled the role of “quantum experts.” That role depends, for starters, on the ability of the parties and their counsel, hopefully with your assistance, to recognize whether their dispute can be resolved early on. The quantum expert in that effort can and should be engaged at the request of the parties who are willing to pay for the expert services and/or the Court ADR Tribunal to quantify the damages potentially at issue.

This service is particularly helpful where the focus in the early stages of a case has been on the liability issue(s) either because of an early bifurcation or because lawyers are not comfortable with evaluating the case for settlement while liability is an issue, and therefore, the actual value of the case has not been examined. An overall assessment of the case via a “quantum assessment”, factoring in the risks associated with unresolved liability issues, can lead to a productive and possibly acceptable settlement offer. Even if it does not, it certainly will help identify the financial and accounting issues in dispute and the documents needed to address those issues. Finally, when an expert, particularly a quantum expert, is engaged early, his or her independence/neutrality both in the short term and long term, if the case proceeds on the merits notwithstanding, the early attempts at resolution should be clarified in the court order and/or engagement agreement.

That all said, two issues that were not on any of the screens when I penned my article five years ago (2019), or even when it was published two years ago by QuickRead (2022), loom large and some perceive ominously.

The Impact of AI on the World of Dispute Resolution

It would be an understatement if I did not observe that both the Federal and State judiciaries are concerned, indeed worried, about the ability to understand and ultimately manage the use of artificial intelligence (AI). There are constant programs for clerks, court administrators, managers, and judges on almost a weekly basis. They are less concerned with the impact of AI on ADR for, among other reasons, they simply have not had time to think about it because of the preoccupation with their internal management issues.

Specifically, the judiciary is concerned about everything from its judicial officers, clerks, administrators, even witnesses, etc. being misrepresented by “deep fakes” whose voices and visuals are misleading. And are dispensing misinformation, including fake quotes and citations, misrepresenting legal authorities from lawyers who utilize AI to write their briefs but do not check the accuracy of their work.

Regarding expert witnesses, you can guess what the judiciary is concerned about. Of course, the judges of both Trial and Appellate Courts are apprehensive about the genuineness and the integrity of the pleadings, motions, authorities, and documents utilized and presented by experts, and the role AI played in the formulation of their opinions being presented to all courts, as well as the credentials of the experts presenting those opinions.

The uncertainty about the best way to ensure the public’s trust and confidence in the efficiency, integrity, fairness, and affordability of access to justice, which is the foundation of our system, is a daily challenge to the judiciary. NACVA can assist by offering its experts’ perspectives and ideas on how to meet these challenges to the judiciary, and by offering to work collaboratively to address these issues. This working relationship and collaboration will directly impact the ability and willingness of the courts to have confidence in the continued role of experts assisting the courts in doing their job. That job now, thanks to Daubert, includes a more rigorous screening of both the credentials and the methodology of experts whose opinions are presented as authoritative to judges. For this reason, and the next one which I will describe, I respectfully suggest enhancing the “think tank” functions of NACVA to accomplish this important goal and to assist the judiciary in this important task, which relates to its core responsibilities.

That said, the good news for mediators and arbitrators and to a lesser extent, the use of expert witnesses in ADR, is that AI is not likely, at least in the short-term, to replace skilled mediators and expert witnesses in ADR because these processes involve a heavy dose of human interaction and psychology. Again, NACVA acting through its “think tank” functions and structure can monitor that situation and should.

The Attack on Expertise

In 2017, writer Tom Nichols, authored the book “The Death of Expertise”, which lamented the various attacks on expertise and experts occurring daily, not only here in the U.S. but around the world. My thoughts on this subject are not as pessimistic as those of Tom Nichols. Indeed, I am reminded of the quote, whose source I cannot recall, but when confronted with rumors that he had passed away, explained while standing erect and healthy looking: “The rumors of my demise are greatly exaggerated.” Nevertheless, the members of NACVA and the lawyers, judges, government officials, and citizens who value critical thinking and value informed and yes, expert opinions in the complex society we live in, have reason to be concerned and therefore should react to it forthrightly.

In a nutshell, the evidence is there to notice that a certain group of persons whose political affiliation is not of one party or the other, although I would describe them as the “extreme left and the “extreme right”, around the world seem to take the position that, as the philosopher, Isaac Asimov, summed it up: “My ignorance is just as good as your knowledge.” That, in turn, triggers a rejection of anything other than a simple solution to complex problems.

We saw this in the demonstrations on college campuses by both, the far-left who did not want any speaker who they did not agree with to be allowed to speak, and the far-right banning books which discussed subjects they did not want mentioned by anyone. This attack on neutrality and expert opinions based on evidence, not conjecture, was further illustrated by the deposition testimony of a Fox News Executive that: “Fox News is not a news organization; it is an entertainment medium programmed to voice opinions that its viewers want to hear and be entertained by.” That cost that corporation $765 million dollars to settle the litigation which occasioned that admission against its interest.

We also saw the defense for the Trump organization in their civil cases take the position, in litigation, that expert opinion on the valuation of the property of the company was irrelevant because no one was complaining, and therefore, whether the valuation was overestimated or underestimated did not matter and was therefore irrelevant. That position, in effect, questions the utility and the value of the expert testimony regarding the value of the company’s business and property. Essentially, unless I misunderstood their position, they were taking the position that the work you do is, at best, not important because it is all subjective, unscientific, and often political.

So, what does this mean for the future? It means that NACVA and people who believe that expert opinion on valuation issues does and should matter need to step up and educate the public on the importance of expert opinion on complex issues in our society. It means an enhanced role for a “think tank” structure and operation within NACVA to perform that task. That is the most important challenge facing this organization going forward. The question is, are we up to it? I hope so!

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Senior Maryland Circuit Court Judge Steven I. Platt has served in the Maryland Judiciary for over 35 years. He is the acknowledged architect of the Maryland Business and Technology Case Management Program. Currently, he is recalled as a judge in all circuits in Maryland and is the founder of and managing member of a private ADR group found on the web at www.theplattgroup.com.

Judge Platt may be contacted at (301) 780-8858 or by e-mail to info@theplattgroup.com.