Financial Expert Witness

The founding principles of the Unites States Civil Justice System are grounded upon resolving matters in an efficient manner, while also safeguarding the legally bestowed right in having access to courts through fair and just determinations. Few deny the validity of the notion that there is clearly room for improvement in our judicial system. This topic has been the subject of several studies. This article explores the recommendations of a recent study examining the role of financial experts in civil disputes, through the eyes of those most directly involved.

Established as a distinct section by the American Institute of Certified Public Accountants (AICPA), the Forensic and Valuation Services (FVS) Committee created a Civil Justice Task Force in 2011. The role of financial experts were evaluated in conjunction with findings of the Institute for the Advancement of the American Legal System (IAALS), subsequently resulting in the September 2012 publication, entitled Another Voice: Financial Experts on Reducing Client Costs in Civil Litigation.* The findings of this publication were presented in the form of five specific recommendations “to maximize both the effectiveness of financial experts and efficiency of their use in the civil pretrial process.”**

The first recommendation suggests the need for judicial implementation of early and consistent active case management. Study results demonstrated that both court action, and inaction has resulted in increased litigation costs. Of the contributing factors noted were deficiencies in scheduling, unnecessary continuances, and failure of the courts to make prompt rulings on pretrial motions or discovery issues.

The second recommendation stresses the importance of involving financial experts early in the process. Through proper and sufficient screening, determinations as to suitability in terms of an expert’s actual use can aide in reducing litigation costs. Also noted, the benefit of using such financial experts to assist practitioners with tactical decision making processes. Further, expert involvement during the discovery process can both guide in formulating requests and responses, and perhaps more importantly, prevent inadvertent oversights in the preparation of such documents.

The third recommendation advises attorneys to “target, focus and streamline expert depositions and discovery.” In discussing both the expense of a financial expert at the discovery stage, in comparison with perceived and actual benefits, the following limitations were suggested:

“Expert depositions should be crafted and conducted so as to reduce gamesmanship and promote substantive information gathering, including, for example, asking for specific sources of numbers contained in the report, asking for explanations of calculations and enumerations of assumptions or inquiring whether the expert will be giving testimony about disputed facts and circumstances on liability or causation.”

The fourth recommendation provides that evidentiary challenges pertaining to experts are “appropriately targeted” and “acted upon promptly by the court.” Accomplishing this goal requires the combined efforts of both practitioners and judges. For practitioners, appropriateness of challenges should be evaluated in terms of likelihood of success, and only upon completely grasping a full understanding of the complexities proscribed by applicable evidentiary standards, particularly in regard to Daubert challenges. For judges, making prompt rulings is essential to limiting the potential time and expense expended by the parties to civil litigation, and more importantly ensuring proper access to courts. Provided as an example, is the common occurrence of elimination of an expert so close to trial, that such exclusion prevents a party from correcting the error by securing an appropriate expert; the consequence of which essentially limits access to a fair and just determination by the court.

The fifth Recommendation proposes that a process be developed for the “collaboration and cooperation of opposing experts where appropriate.” The authors suggest that a less adversarial approach will serve to benefit all parties involved in a civil dispute. They emphasize the need for increased efforts in collaboration and cooperation.  However, this notion is premised on standards of appropriateness given the particular factual circumstances, and communications between opposing experts should generally occur only after careful consideration, and in conjunction with attorney supervision.

Perhaps most interesting are that the recommendations, when read as a whole, seem to employ a rather common sense approach. The need to spell out seemingly obvious concepts, simply reinforces the notion that further discussion and reevaluation are both worthwhile and necessary components to the overall improvement of civil litigation. Although the recommendations summarized herein relate to a specific type of expert, the theoretical framework can be easily applied beyond the realm of the financial expert, in an effort to re-discover the intended purposes of the U.S. Civil Justice System.

Source: American Institue of Certified Public Accountants

By: Alicia McKnight, J.D.