Financial experts can make or break a case for economic damages, lost profits, taxable fair market values, dispositions in divorce, shareholder dissolutions—and more, but many lawyers “inadvertently destroy their experts' credibility,” says a recent report by the American Bar Association. The most common “bad attorney habits” include:
- Finding experts at the last minute;
- Failing to set aside sufficient client funds to retain an expert;
- Suggesting unreasonable or inappropriate assumptions;
- Introducing bias;
- Ignoring the expert’s input; and
- Asking experts to testify outside the scope of their expertise.
How can experts help attorneys avoid these mistakes? Don’t take on a litigation engagement without sufficient time to prepare and disclose your expert opinion pursuant to the applicable rules. Make sure to get all the timeframes and deadlines in a case as soon as possible, so that you can send your “wish list” (document/discovery request) to the attorney with ample allowance for responses. Make sure the scope of your expert designation fits your experience and proposed testimony. Lastly, be realistic about costs and don’t whittle the scope of the engagement to fit the client’s budget if it compromises your ultimate opinion and/or compliance with professional standards.
Educate your attorneys. Help the attorney learn about the case, says another ABA article, “Attacking Adverse Experts.” Although geared toward litigators, the article’s insights lend themselves to application by experts—plus it gives away the tricks and tactics that attorneys are currently using to prove you wrong, including researching all your prior publications, presentations, and trial testimony.
For example, experts can help identify and expose critical mistakes by the opposing expert, and can provide possible questions for use in cross-examination. The goal is not to “win” the case in cross-examination, but to focus the attorney’s attention on two or three weaknesses in the other side—“explicit, specific areas where the adverse expert is wrong.”
Important reminder: Although the law on privileged communications is uncertain in this area and may be changing, you should always assume that any communications with the attorney may be subject to discovery.