When selecting a financial expert, you first want to make sure you need one and, if so, why type. Speaking for Mealey Conferences, James C. Dugan, partner with Willkie Farr & Gallagher LLP, said not all cases require a financial expert. The attorney needs to ask: will an expert genuinely help inform the judge or jury? “In some cases an expert will be cumulative and not additive,” he said – you don’t want an expert when the other side’s case is clearly weak otherwise you risk dignifying your adversary’s position.
Once you’ve made the decision that a financial expert is what you need, another question is whether you want a “professional expert” or an “expert professional.” Professional experts, whose primary source of income is testifying, and professionals who rarely if ever testify, both have advantages and disadvantages for different situations. “It’s important to get this [choice] right early on,” Dugan said. The advantages of a professional expert are his ability to testify across disciplines and their experience in the courtroom. They are less likely to become flustered and are used to analyzing large amounts of data. “However, professional experts have a huge public record that can be used by an adversary in cross-examination,” Dugan cautioned. “It’s very hard to be completely consistent on every issue you are tapped to opine on. The larger the record, the more likely your adversary will find something.”
Another downside to the professional expert is that the jury or judge may infer a lack of credibility to someone who testifies for a living, Dugan said, especially if they have only taken one side of an issue in their testifying career. Counsel must scrutinize the expert’s record thoroughly during the vetting process, Dugan said, just as their adversary will do later on.
In practice attorneys do not always get the choice between types of experts, he said, and sometimes a subject is so esoteric that it simply cannot be addressed by an “arm-chair practitioner.” Sometimes you need someone who acted in the relevant role, such as an investment advisor, to have more credibility with a jury. The disadvantages in this situation are that the witness will not be familiar with the litigation process. “It’s pretty hard to withstand cross examinations if you haven’t done it before,” Dugan said. Or, the expert professional may not be a good communicator to a jury. The advantage of a professional expert is that they will have been in front of juries before and the attorney will have some idea of how the witness will come across. Dugan added that some professional experts – despite deep technical knowledge – also know how to come off folksy, which is a winning combination.
This is adapted from audio recordings and materials available on CD by Mealey’s Litigation Conferences and Business Valuation Resources. These audio packages — “Effective Timing & Use of Financial Experts” and “Compelling Statistical Evidence: Mining, Modeling, and Presenting Quantitative Financial Evidence to Juries” –contain presentation materials and full transcripts. For more info, write to me directly at firstname.lastname@example.org.