Three ‘trick’ questions that every litigation expert will hear

BVWireIssue #82-3
July 22, 2009

Expert witness work takes a thick skin and profound preparation, especially for those who may not have racked up a lengthy resume of court appearances and professional publications. Whether you’re an experienced expert—who’s testified on everything from complex economic damages in business disputes to the appraisal of marital assets in divorce—or you’re just starting to lay the foundation for a litigation consulting practice, the following questions are going to come up during deposition or trial. “You will get them,” says Brent McDade (Decosimo Advisory Services, Memphis, TN), who presented a “Mock Deposition for BV Engagements” at the recent NACVA/IBA 2009 Joint Consultants’ Conference. “And you have to be able to answer them.”

1.  Have you ever read Shannon Pratt’s books? Valuing a Business: The Analysis and Appraisal of Closely Held Companies and other BV treatises are “must-reads” for any appraiser. But once the litigation expert answers “yes” to this question, the opposing attorney cites a potion of the text that contradicts the witness’ opinion. “We have all read a number of books on business valuation,” McDade says, providing a possible response. “They reflect the opinions of the author and the body of professional knowledge at the time they were written—and opinions change over time.” Ask to read the text where the quote was taken from and take a moment to prepare any further response that explains your opinion only. “Don’t get set up for the trap of comparing an ‘authoritative treatise’ to your analysis,” McDade advises. “Anything can be taken out of context.”

2. What’s on your website and brochures? “Know your own stuff,” including what you said in that CLE class you taught or the last time you testified in court. “Review that article you wrote in 1999.  Do not create biased marketing materials.” And make sure that your website does not disqualify you in any way.

3. Who is this person who worked on your report? “Know your employees,” McDade says. Know their experience, credentials, length of time working at the firm, and their supervisors. Most importantly, know what they contributed to the report and whether you will have to disclose them as potential witnesses under the applicable rules of civil procedure.

For more questions that could trap even successful litigation experts—plus dos and don’ts for every deposition and trial appearance—look to a future fall issue of Business Valuation Update™.
Please let us know if you have any comments about this article or enhancements you would like to see.