One of the best answers litigator Chuck Rettig has heard to cross-examination about subsequent events came from valuation expert Chris Mercer. Chris recounts a question address to an appraiser asking why he hadn’t considered factors that occurred months after the valuation date. The response: “It hadn’t occurred.”
It’s not always that easy, though. “What happens after the date can be relevant in the courtroom, but it’s not ‘known or knowable’ for the purpose of the a valuation,” says Rettig. He argues that not referring to subsequent events, in the context that they can’t be considered as a factor in conclusions of value, can leave you exposed—or reduce your credibility to the judge. So, as a lawyer, Retting wants his appraisers to acknowledge subsequent events, and clarify that they can’t be considered. “If the subequent event would enhance your conclusion, you’d tuck it into the endnotes most likely anyway,” he says.
The court can then do whatever they want. As Mercer joked “my experience is that when I don’t want subsequent events considered, the courts always do. When I do want them considered, they never do.”