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 “hired gun” 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 expert’s conceptual quest for unimpeachable neutrality and provides guidance on how to silence the hired gun, maintain one’s integrity, all while staying gainfully employed.
-
-
What to Ask and Look for When You Need a Forensic Expert In today’s legal environment, it is not sufficient to present unsubstantiated evidence. Many subject matter experts do not properly substantiate their findings. When hiring a subject matter expert, careful screening is crucial to choose an expert with superior skills and credibility. This article presents methodologies by which you can perform proper due diligence on your prospective subject matter expert.
-
What You Say and How You Say it Matters (Part VI of VII) Anticipate that opposing counsel will challenge some aspect of the report and suggest flaws notwithstanding the hard work. How you present yourself and testify is of utmost importance. In this article, the author shares her views on how to prepare and address the criticism that will be leveled at you and your report.
-
Complying with Rule 26 of the Federal Rule of Civil Procedure (Part V of VII) What does Rule 26 of the Rules of Federal Civil Procedure provide? Using FRCP 26 as a basis for what is needed in federal court and possibly state court, the author discusses what is required from experts in their report.
-
Will Your Methodology be up to Snuff? Beyond Frye and Daubert (Part IV of VII) The methodology employed by the expert is a critical factor determining the admissibility of the testimony. Frye, Daubert, and Kumho provide guidance regarding the admissibility of the testimony. In this article, the author discusses these and recent cases, including: Manpower, Inc. v. Insurance Company of the State of Pennsylvania; United States v. Alabama Power Company; United States v. Cinergy Corp., to illustrate the how courts have decided motions to exclude.
-
The Question of Admissibility (Part III of VII) Are you ready to serve as an expert witness? Your training and experience are critical factors establishing your qualifications, but not a license to testify on matters beyond your scope of expertise. In this article, the author shares her experience evaluating your admissibility as an expert.
-
Could that Opinion Survive a Daubert Challenge? (Part III of III) This is the third and final article of the series. Part I provided background for this thought exercise and identified the size of the hole the 76ers had to climb out of to make the playoffs. Part II addressed the path an expert might take to arrive at his or her opinion. This part addresses the implications of the thought exercise on valuation-related Daubert challenges. It may appear that an opinion related to the 76ers’ chances of making the 2015-16 playoffs has no bearing on valuation-related (or other) Daubert…
-
Could that Opinion Survive a Daubert Challenge? (Part II) This is the second article of a three-part article. Part I provided background for this thought exercise and identified the size of the hole that the 76ers had to climb out of to make the playoffs. Part II addresses the path an expert might take to arrive at his or her opinion. This part of the article has two objectives. First, it attempts to use a reliable methodology and sound reasoning to arrive at a determination that the 76ers will make the 2015-16 playoffs. Second, it takes a step back and…
-
Could that Opinion Survive a Daubert Challenge? (Part I) This article is comprised of three parts. Part I provides background for this thought exercise and identifies the size of the hole the 76ers had to climb out of to make the playoffs. Part II will address the path an expert might take to arrive at his or her opinion. Part III will address the implications of this thought exercise on valuation-related Daubert challenges.
-
Tips for Expert Witnesses (and Legal Counsel) from a Litigation Strategist Expert witnesses need to prepare, but what other factors may help the expert win-over the jury? Wendy Pearson, a seasoned litigation strategist, shares her views on this subject.
-
Conducting Due Diligence on the Expert and Setting Expectations of the Expert Witness in a Litigation Engagement One of the risks of doing business today is getting involved in business disputes. Disputes take many forms. Disputes can be resolved through negotiation, mediation, arbitration, or litigation. Business disputes are frequently complex and the parties involved are sophisticated and motivated to succeed. It has become routine in complex commercial disputes to use expert witnesses to assist in preparing a case and in interpreting the facts of the dispute. Expert witness testimony and expert reports have become the norm in commercial disputes. This…
-
The Importance of Being Truly Independent The rise of Daubert challenges to valuation experts has resulted in more than just the exclusions of valuation experts. When an expert is excluded for “subjective belief” and “unsupported speculation” by the court, a closer examination into such commentary made by courts reveals the increasingly problematic trend of experts failing to perform independent analyses.
-
During preparation as an expert witness for trial, it’s crucial to anticipate the potential strategy and line of questioning of the opposing counsel. Many expert witnesses role-play the scenario in advance with a colleague standing in for the attorney to uncover hidden weaknesses in their preparation and to quell nerves. While years of acting as an expert witness can leave one feeling like they’ve seen it all in the courtroom and know all the tricks opposing counsel likes to play, that’s no substitute for being inside a lawyer’s mind. When the stakes are high, all bets are off, and…
-
Handling lawyers who coax you to work from their summary of the evidence Expert witnesses have an ethical responsibility, as well as a business imperative, to ensure they review the actual evidence that supports their analyses. Because expert witness testimony can make or break litigation outcomes, consultants cannot risk having their testimony excluded by the trial judge or discredited by the jury.
-
The Expert’s Role The article offers the comments of one expert on how the courts (judges) could improve the end process.
-
Anticipating questions allows us to think through the best ways to phrase our responses Questions about an expert’s skills and work can be phrased in ways that make it difficult to answer accurately on the spot, but advance preparation can smooth the process.
-
Good communication skills are essential for the expert Witness Expert witnesses and litigation support professionals generally do not consider the importance of communication skill training and practice as part of their preparation process. Communication is the third leg of expert witness preparation and separates the average witness from the great witness.
-
Expert witness do’s and don’ts In this article, Ted Blodgett offers 10 do’s and don’ts to consider when serving as an expert witness.
-
Forensic accounting examinations of not-for-profit entities The keys to performing a successful expert forensic accounting fraud engagement is to gain an understanding of the present internal control system, including policies [or lack thereof] in place to prevent fraud and abuse, as well as other key steps and procedures, as John J. DeLuca outlines in this article.
-
Business valuation in divorce In this article, Brian Murray examines the risks taken by clients when valuators are hired to “get the numbers” needed to support a desired outcome in divorce proceedings. In most cases, such a preplanned agenda backfires and creates more problems in the end.