You’re an expert witness. You investigated the facts, you developed your expert analysis, and now you have an expert report and opinion ready for court. This for example is what a business valuer provides their client. There it is. Case closed right? The next steps are depositions, critique the other side’s report and testify at trial. That is what many experts think and do. They do not advocate for the client, but they do advocate for their position. Is that enough? Is there a better way? Let’s explore this.
An expert as advocate for position
An expert is expected to be independent, operate with integrity, and provide an expert opinion to help the trier of fact to reach an educated opinion and decision. The expert is to be objective, meet certain standards, and is there to promote advancing the case. In that sense the expert is an advocate.
The choice of an expert is critical. The expert can have a significant impact on the case. In the real world, two different experts can look at the same set of facts and see entirely different perspectives. Often the expert can act as an interpreter with the client to help educate the client on the differences of perspectives. Many times, once the fact evidence has been explained by an expert, it may become obvious what may result in a reasonable conclusion.
It is extremely important that the expert have expertise in the area in question. Great experts win cases. They are experts in their analysis and in educating others. Arbitrators, triers of fact, and juries are not experts. They rely on experts. The expert has to be able to relate to the decision makers and provide insights in the way that make sense to them. The expert needs to be independent and be an authority in the area of expertise.
Behind every position is at least one interest
With an expert having prepared a position such as a business valuer in a divorce case valuing a closely held business run by a spouse, it would appear the next step would be to go to trial. This case would likely be a dual between competing experts and letting the trier of fact make the decision. The question is whether this is the best course of action for the ultimate client.
What are factors to consider for the ultimate client?
· Mental health
· Physical health
All of these elements enter into the picture. Given enough time and resources it is possible for the case to go on for years, earn a handsome fee as an expert, and eventually need to update the reports again, refute the other side’s expert, and testify at trial. For many experts this is their underlying interest whether they admit this or not. Some experts may even fuel the animosity between the participants to advocate even more strongly for their position. At the same time, they may continue to belittle the expert on the other side.
Beware of these experts. Do they truly have the client’s best interest at heart?
Given the six factors above, it may be worthwhile to explore these six factors with the ultimate client. Perhaps the ultimate client wants to be respected, would like to have closure sooner, would like to not have to keep spending money on the case with the attorneys and the expert, would like to sleep better at night, would like to not have to worry about this case anymore, and would like to return to a “normal” life. With this in mind the expert may need to shift gears and explore how the expert could help as a valued consultant all the while remaining at the ready as an expert for trial. How can an expert do this?
Understanding client interests is critical be a value-added consultant
An expert can work with the client to understand their interests. Having been heavily involved with litigation at the federal level, more than once I have seen the ultimate client indicate they are out of money, can’t afford any more money on the case, or don’t want to continue to waste money on the case. In those instances, it is amazing but the attorney for the client on the case suggests settling the case. Why does it take until this point for the attorney to realize this is a better way to go on the case? It may be the strength of the case, the development of the issue, or that without additional funding the attorney has decided now is the time for closure.
What is an expert to do?
From my perspective an outstanding expert does not wait until the client no longer has funds or refuses to pay more, and suggests the attorney settle the case. From my experience an outstanding expert lays out the assumptions made along the way. The outstanding expert creates a sensitivity analysis regarding assumptions, data sources, various analytical techniques, and provides the attorney with that information. Why? To let the attorney and the ultimate client consider other options relating to negotiating a resolution without having to proceed to trial or arbitration.
Initial set up
How might this work? Having mediated in this type of an environment, the experts have an open discussion facilitated by an expert in the field as a mediator. The ultimate client and the attorneys are present, but are only there to learn and be educated. The mediator asks both sides questions related to the facts and the development of the case. Often one appraiser’s calculations are used as a starting point so that each party can consider what if scenarios and alternatives as the mediation proceeds. This allows both parties to explore ramifications going into the mediation.
Working with both parties ahead of time a common scenario requires both parties to think ahead of time of what is their Best Alternative to a Negotiated Agreement (BATNA). That is if we don’t at least reach this number, we will go to the trier of fact or to arbitration. It is also suggested that they have three computations between their starting position and their BATNA already computed to aid in considering alternatives. Often as additional facts are presented, assumptions scrutinized, and alternative approaches considered, one or both parties realize that their BATNA may need to shift in the direction of the other party. This is frustrating to the party involved, but allows the parties to move closer towards a resolution.
After this session mediation takes place between the ultimate clients with their attorneys and the mediator acting as a neutral between both parties. Now everyone can consider the facts, issues, emotion behind the issues, and the interests of everyone involved.
Having worked with clients recently and seen this unfold with an acceptable resolution, this allowed both parties to move on. As a result, both parties could live with the resolution. Neither was fully satisfied. Mentally this was very trying on each side. They had been at this for years. Mental and physical health had been impaired. Now they could move on. The bleeding stopped. The expenditures were over. They could each move on with their lives.
The experts were always true to their positions and their clients. The mediation was confidential should they have proceeded to court. This was signed to by all parties prior to the mediation had the mediation broken down, but it did not. With this example keep in mind what is in the best interest of the ultimate client. An outstanding expert is an advocate for his or her expert position, but can also work the attorney and ultimate client often with a mediator that understands the expert’s issues to work together to resolve the case. In the end that is what everyone should want.