Selecting a commercial damages expert can sometimes be the most important decision an attorney can make in a case. The damages expert is the person who can explain complex financial, forensic and accounting concepts to the judge or jury. A competent expert will be able to explain how these concepts fit in with the plaintiff’s damage theory. As many attorneys know, finding an appropriate damage expert can be a challenging process.
Several factors must be taken into consideration before selecting the right expert. For starters, the most important factor is the damage expert’s knowledge and experience, which will be the subject of cross-examination at trial. Engaging an experienced and knowledgeable damage expert who has testified in a deposition and trial before can be very beneficial for the attorney and their client.
Here are the key factors to consider when selecting a damages expert:
- Experience: First and foremost, attorneys should evaluate the expert’s amount of relevant experience. Look for a damage expert who has worked on comparable cases and/or who has previously provided relevant testimony.
- Testifying Experience: Attorneys should look into previous testifying cases to see the opinions and reports the damage expert has issued in the past for deposition or trial. Counsel should also find out whether an expert has been subject to Daubert challenges and/or has had their opinion excluded at trial. This is a critical part of the selection process.
- Training: The damage expert should have formal training in the field in which they provide services. Have they attended continuing education classes or taught relevant coursework?
- Credentials: The damage expert’s credentials are a critical part of the decision process. The attorney should look for a damage expert with the following credentials, which may include: Certified Public Accountant (CPA), Accredited Senior Appraiser (ASA), Chartered Financial Analyst (CFA), Accredited in Business Valuation (ABV), Certified in Financial Forensics (CFF) and Certified Valuation Analyst (CVA).
- Professional Affiliations/ Involvement: An attorney should consider the level of involvement the damage expert has in their profession. The damage expert should be an active member of the organizations that govern their profession. Furthermore, if he or she has published any articles or given any presentations on relevant topics, they could be beneficial, but those articles and presentations should be reviewed for content and conflicts.
- Reputation: The attorney should research a damage expert’s reputation and determine if it will have a positive or negative impact on the case.
- Communication Skills: It’s important to also evaluate the damage expert’s communication skills. The attorney should consider how the expert will communicate their findings during testimony and determine if that communication style will be effective.
Attorneys should also contact their colleagues to see if they have any prior experience or knowledge in working with or against the damage expert. There are many instances in which attorneys’ partners or colleagues have prior dealings with a damage expert and can give good insight into whether he or she will be a fit for a particular case.
Once selected, the damage expert should understand the scheduling order and work to develop the expert report and prepare for deposition and trial testimony. The attorney should understand the time it will take to prepare an expert report based on the scope of the assignment.
When preparing for a case, keep the following in mind:
- Document Production: It is critical that the damage expert be provided with all the necessary documentation for their analysis to enable them to prepare a credible expert report.
- Discussion of Damage Theory: Explore various damage theories with the damage expert and decide together which damage theory best matches the facts of the case.
- The Expert Report: Discuss the requirements of the expert report and the level of detail that needs to be included.
- Preparation for Deposition and Direct/Cross Examination: Work with the damage expert to prepare them for direct and cross-examination. Prior to deposition and trial, the attorney and damage expert should evaluate the opinions issued and information used in the expert report in order to anticipate the questions that might be asked in deposition and cross-examination. It is critical for the attorney to communicate questions or topics which may be asked by opposing counsel so the damage expert can be adequately prepared.
Attorneys who understand the process for selecting and working with damage experts can improve their chances of successful outcomes at deposition or trial. Once engaged, the expert and counsel should work together to make sure that they both have an understanding of the scope of the assignment for both report and deposition/trial preparation.
R. Christopher Rosenthal, CPA/ABV/CFF, ASA, AEP is a global leader in the forensic, damages and valuation services profession with more than 30 years of experience. As a director in Ellin & Tucker’s Forensic and Valuation Services Group (FVS), he has been responsible for hundreds of domestic and international consulting engagements throughout the United States as well as Europe, South America, and the Middle East. He has testified over 150 times on commercial damages, valuation, and forensic accounting issues in federal, state and international courts. For more information, please contact Chris by email at firstname.lastname@example.org or phone at 410.727.5735.
Zachary C. Reichenbach, CFA, CPA/ ABV, is a principal in Ellin & Tucker’s Forensic and Valuation Services Group and has been a member of the firm since 2008. He has extensive experience providing expert witness services and litigation services for commercial damage and valuation engagements. He specializes in complex commercial damages, valuation, intellectual property, and forensic accounting assignments. Zach has worked on hundreds of cases ranging from simple contract disputes to complex litigation with millions of dollars at stake. He can be reached at email@example.com.