When a damages expert is needed in a legal case, there are factors that should be considered to ensure the working relationship between the attorney and the expert flows smoothly. SDK’s forensic accounting and valuation services team has created a list of 10 items to consider as you begin working with an expert.
1. Retention: It is easy to hope a case will settle or be dismissed. However, it is important to get a damages expert involved early so that they are able to get the necessary information for their considerations and analysis before discovery closes. Additionally, damage experts typically have busy schedules making it difficult to retain the best damages expert on short notice.
2. Expectations: The damages expert needs to understand legal counsel’s expectations as well as the key issues of the case. Legal counsel should inform the damages expert what is expected such as a detailed damages report, oral testimony at trial, or simply assistance with developing an answer to interrogatory questions. Additionally, the expert should have an understanding of the background of the dispute, the drivers for litigation and legal principles that govern he situation.
3. Resources: Legal counsel should make sure damage experts have enough time and resources to perform the work needed to properly prepare a damage analysis.
4. Discovery: Damage experts need basic information in order perform the work and to provide a reasonable basis for conclusions. Legal counsel should let the damages expert be actively involved in discovery to make sure the information needed for the work is available. Discussions should occur regarding the most effective ways to obtain the information the damage expert needs such as interviewing management, assisting in document request lists and assisting with deposition questions.
5. Access: Legal counsel should not constrain access to information or scope of work as it may negatively impact the credibility and acceptance of the damages expert’s findings. The damages expert should have access to all relevant documents produced by both the plaintiff and defendant.
6. Expertise: Although damage experts have a broad range of training and experience in financial and business matters, the expert and legal counsel have to be careful that the expert’s opinions stay within their specific skill set. There may be pressure to use the damage expert for other expert opinions, but it is important to not push the damages expert out of their zone of expertise.
7. Privilege: Communication with the damages expert may be discoverable. Emails area major part of discovery as it is often the method of choice for communication; therefore, phone calls are the preferred method of communication with the damages expert.
8. Communication: Open lines of communication between the damages expert and legal counsel is important to assure the flow of documents and data are controlled. The damages expert needs an opportunity to consider all relevant documents and needs to make sure all documents relied upon are produced to the other side. Additionally, the damages expert should be aware of all changes to upcoming relevant deadlines such as discovery cutoff, disclosure of experts and expected due dates of the plaintiff’s and defendant’s expert reports.
9. Comprehension: Legal counsel should obtain an understanding of the key financial aspects and the significant factors that may affect the damages expert’s analysis and conclusions. Having this understanding can help in redirect examination if the expert cannot clarify any confusion created by the other side during cross-examination.
10. Simplicity: Legal counsel and the damages expert should plan the expert’s direct examination and agree on the level of detail presented at trial. Enough detail needs to be presented so the judge or jury can understand the type of analyses performed and methodologies used to support the expert damages opinion; however, keeping the expert’s testimony simple and uncluttered should be the goal to avoid confusion by the judge or jury.