Bill Morrison led a great session with Hon. Thomas Zampino (New Jersey Superior Court) and Mark Sobel (Greembaum Rowe Smith & Davis) on the rules of evidence.
But, most divorce lawyers don't have a lot of "actual, on their feet, trial experience" because most divorces don't go to court, points out Sobel. They might not be facile. And, a most common new litigator mistake is to take over an experts testimony. "The judge wants to hear from the expert, not the lawyer," he says.
Sobel trains other lawyers to look at
- normalization adjustments
- growth rates
- specific-company risk, and
- reasonable compensation, if any
"Each of these aspects have multiple subjective elements, so any lawyer will want to look at them, and any expert must prepare to be cross-examined on them." Sobel cites a case where an expert argued for a 19.5% growth rate--Sobel tore that number apart until the judge stopped him, but by then the damage to the expert was done. How do you deal with this as an expert? "Admit there's a subjective element. But, also point out that your subjectivity is tempered by my experience, my studies, the information I collected, all the work in put in, etc. So, it's subjective, but it's not a guess." In cross-examination, this answer will shut down the opposing counsel.
And, here's a good question to ask any appraiser: "would you buy this company at this price?" Sobel says that if the appraiser's theories don't yield a real value, the expert witness will have little credibility before the judge.
Sobel suggests, as a side note, that appraisers always ask their lawyers to tell them everything the lawyer knows about the judge. These instructions often mean more than anything in helping experts stay credible before the court. Zampino asks for honesty here. "If it's your first time in court, let me know. Don't hide it," he advises. "I'll understand."