In litigation, expert testimony can make or break your case. As set forth in the 1993 U.S. Supreme Court case Daubert vs. Merrell Dow Pharmaceuticals, the expert witness’s reliability and relevance are essential for credibility. But in addition to those two baseline qualities, there are ways of working with an expert that can make a positive difference in a case.
Here are a few best practices to consider when working with a valuation professional.
Hire right. The right valuation expert for your case has the experience and credentials your case demands, as well as a personality and work style that fit with your team. If you are expecting your valuation expert to testify in court, you must also consider his or her ability to present information in a clear, concise, and compelling way. This includes the ability to simplify complex facts and circumstances so they can be more easily understood by the court and jury.
While most valuation experts can handle the technicalities of most cases, if your circumstances require knowledge of a highly specialized field, you may want to seek specific expertise in that area.
One way attorneys often find effective experts is by paying attention to the opposing side’s expert in other court cases. If that expert is a particularly good witness, you may want to consider retaining him or her in the future.
Start early. Bringing in a valuation professional early in your case can be extremely helpful. He or she can point out strengths or weaknesses in your case, assist with damage theory, hone your line of questioning in depositions, and help you prepare your discovery outline and document requests. Bringing in the expert early can also save you money. No one has an unlimited budget, and an expert can help narrow the discovery process to information that will truly impact the case.
The expert can also identify areas where additional expertise might be necessary or helpful. Remember the two Rs of the Daubert case: reliability and relevance. Asking your expert to opine about something outside his or her scope of expertise can cause problems in both of those areas.
Share openly. Your expert needs to know the big picture and the relevant details of the case. Armed with this knowledge, he or she can produce a report and opinion that is most appropriate in terms of nature of the dispute and other circumstances.
Hiding from your expert what might be perceived as bad news—weak or questionable parts of the case—is not a good idea. It’s best to lay out everything before you get to the courtroom so that your valuation expert isn’t caught off guard in front of a judge or jury. Moreover, the expert may be able to add perspective to what might be a weak spot in the case and assist in strategy to accommodate deficiencies.
Expect neutrality. While attorneys are tenacious advocates for their clients, valuation expert witnesses are required to be neutral and to render objective, unbiased opinions. In other words, they must be advocates for their opinion, not the client. This neutrality is key to credibility, both in the matter at hand and in future litigation.
Your expert’s opinion will be damaged by any appearance of bias, so be sure your team is aware that while the expert was hired by your side, he or she must be independent and impartial.
If you are preparing for litigation that involves valuation, don’t hesitate to reach out to a valuation professional with questions—the sooner, the better!