August 11, 2010

How Well Will Your Expert's Report Stand Up at Trial?

By David A. Anderson, CPA, CFS, MBA, MSE

How Well Will Your Expert's Report Stand Up at Trial?

You are trying a major case with multi-million dollar implications. The trial is going well, and you put your expert witness on the stand. You enter the expert’s report into evidence and successfully conclude your direct examination. Opposing counsel starts to cross-examine your expert and starts to pick apart the expert’s report – a wrong number here, a typo there, a missing assumption, a vague conclusion, etc. – and by the end of cross-examination, opposing counsel has severely damaged the reliability of your expert’s report. You try your best in re-direct to repair the damage, but opposing counsel makes the unreliability of the expert’s report a key part of closing arguments. The jury comes back with a verdict for the other side…and then your morning alarm goes off. It was only a bad dream!

Attorneys rely upon qualified experts to opine on a variety of subject matters and technical issues including financial valuations and damages. Although the attorney may have familiarity with the specific area of expertise for which the expert has been hired, both the attorney and the expert are too involved with the case to provide an objective analysis of the expert’s report. Because of the risk that there may be errors, omissions, internal contradictions or weak arguments in the report, or because the expert may have failed to consider other viable alternatives in reaching his /her conclusions, in large cases the attorney should consider bringing in a second independent qualified expert to critique the first expert’s report prior to presenting that report at trial.

The critiquing expert should have comparable qualifications to those of the original expert in order to be able to effectively perform the critique (or, if the original expert’s firm is sufficiently large and can provide another comparable expert who is sufficiently “independent” of the matter, the attorney can also consider engaging this second “independent” expert to perform the critique). The critiquing expert should analyze the first expert’s report as if he/she were advising opposing counsel. The critiquing expert will identify any errors, omissions, internal contradictions or weak arguments in the report as well as any other viable alternatives that should have been considered. This critique will serve as a road map for the attorney’s preparation for trial. This includes:

  • Providing an opportunity for the original expert to either reissue the original report or to issue a Supplemental Report “correcting” the critique’s findings
  • Allowing the attorney and expert to thoroughly prepare the expert for trial testimony
  • Providing the attorney with the opportunity during direct examination to pre-empt opposing counsel’s lines of attack for cross-examination

Of course, if the other side has engaged an expert to prepare a report to be introduced at trial, the attorney should make sure that his/her expert performs the same type of critique of the opposing expert’s report. This will provide a roadmap for attacking the opposing side’s expert during cross-examination.

For example, in a recent multi-million dollar shareholder litigation the plaintiff’s attorney engaged an expert to prepare a combined valuation and damages report. The plaintiff’s attorney failed to engage a critiquing expert in preparation for his expert’s testimony. MarcumRachlin’s Philadelphia office was engaged by the defendant’s attorney to perform a critique of plaintiff’s expert report. In our analysis of the plaintiff’s expert’s report, we found numerous errors in the report along with indications that the plaintiff may have written part of it. Upon cross-examination of the plaintiff’s expert, the plaintiff’s expert admitted that portions of his report had, in fact, been written by the plaintiff. As a result, the plaintiff’s case suffered a major blow with significant dollar implications.

Use of a critiquing expert to analyze either your own expert’s report or that of the other side can prevent a possible nightmare in presenting your expert’s report and testimony at trial. In large cases with significant dollars at stake, it can serve as a valuable way to increase the potential for a successful outcome.