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Selecting an Expert Witness

published by The Recorder


By Claudia Stern, BPM Manager
September 10, 2010


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The successful use of experts can make or break a case. Using an expert who proves to be ineffective, either due to incompetence or rejection by the court, overshadows a great legal argument. You will build the best case possible for your client, but what about selecting the best expert? How do you find the right type of expert? How do you make sure the courts will accept the expert? How do you prepare your expert to maximize their efficiency? How can you learn from others’ mistakes in using experts? In this article, we look at finding experts who provide financial or economic expertise.

At the heart of many legal battles is the question of money. Who owes whom and how much? Did respondent cause the plaintiff economic harm and, if so, how much? Start by thinking about what kind of economic harm is alleged. In cases of personal injury or wrongful death, typically a labor economist provides damage estimates. These types of cases follow a relatively standard methodology. However, for business interruption cases, the issues can be complex and care should be exercised to choose the appropriate expert or experts.

Business interruption cases are more complex as there are questions about the length of the interruption, whether the lost profits might be due to factors other than the ones the plaintiff alleges, and what the plaintiff did to mitigate the losses. These are just a few of the factors that make business interruption cases more complex. A typical business interruption case involves making:

  • economic judgements (e.g., how did the downturn in the economy affect the business as separate from the alleged harm?);
  • industry judgements (e.g., was the cost structure of the industry changing during the period of alleged losses?); and,
  • financial judgments (e.g., what business costs could have been avoided to mitigate damages?).

Depending on the nature of the case and the amount of money involved, the use of multiple experts (economic, industry-specific, and financial) may be required. For less complex cases or cases where less money is at stake, picking one expert who provides a competent range of abilities is important. So, when choosing that one expert, you need to assess whether they can take into account economic, industry and financial issues. Using a past case as an example, probe a potential expert to see how they addressed each of these issues. Or ask the expert to opine on how they would address these issues for your particular case.

Finding an expert may take sleuthing and the best source for that is other lawyers. Networking within your specialty will build a resource base you can tap on when you need a particular type of expert. Finding similar cases that have been tried may also provide a list of experts who testified, although it may not provide much information about the quality of the testimony. Professional organizations, like the California Society of CPA’s, have specialty groups, such as Economic Damages, where names of potential experts can be found. Another good source of experts is the Business, Finance or Economic Departments of local colleges and universities. If a contact is not an appropriate reference, always ask them for three names of people who might be or know of an expert.

To vet a potential expert, besides interviewing an expert to assess their ability to handle the complexities of the case, you can use their CV to find cases where they served as an expert. The attorneys who worked on those cases may provide reference information about the expert, as well as more information as to the nature of the expert’s areas of expertise. In high profile cases, the background of the expert, their education, whether they are considered an expert in their field (demonstrated by teaching, writing books and articles, and presenting at conferences) will add weight to their testimony. A cavaet: it will only add weight if the expertise is relevant to the case.

In summary, choosing an expert can be a time consuming task, but it is essential to success. Use your network and internet resources to find possible experts. Interview and find an expert who has relevant experience on the major issues. Check their references and vet their process. If you do your homework early on, you’ll set the stage for the best possible outcome for your client.

 

 

This publication contains information in summary form and is intended for general guidance only. It is not intended to be a substitute for detailed research nor the exercise of professional judgment. Neither BPM nor any member of the BPM firm can accept any responsibility for loss brought to any person acting or refraining from action as a result of any material in this publication. On any specific matter, reference should be made to the appropriate advisor.