Category Archives: Business Development for Experts

Employment Damages: Sometimes Plaintiff Loses

Sometimes, the facts support an opinion of no damages, as I recently testified in a state court which largely agreed with me. What happened?

This was a dispute between an employee and former employer with multiple causes of action. Having left the company after working 6 years, the plaintiff ended up suing the company for past and future wages.

I considered two issues:

  1. How long it would take such a person to find a job and, once found
  2. How that job would compare with their past job as per pay.

These questions were addressed with pooled Displaced Worker Survey data from 2008, 2010, and 2012 and appropriate econometric methods controlling for economic conditions, age, education, location, industry and occupation of plaintiff.

I also considered extent of wage loss due to skill erosion associated with plaintiff voluntarily being out of the labor force for 2.3 years, an application of human capital model with Current Population Survey data. Because defendant kept open the plaintiff’s prior position at a wage 25% above that which plaintiff could find after 50 weeks of searching, my opinion was no damages.

Litigation is risky. In this instance I was retained by defense counsel, but my opinion would have been the same if I’d worked for the other side.

Prudent Corporate Governance: A Board’s Dilemma

This article discusses the roles and duties regarding the effective and steady stewardship of a board of directors, including management of workflow information.

The following questions should be asked (or demanded) by each board member from their organization:

  1. Ask for a written meeting agenda
  2. Study the agenda
  3. Ask for accurate and timely financial information
  4. Ask questions and request timely answers
  5. Strive for perfect attendance from all directors
  6. Dissent where warranted
  7. Call for recorded votes
  8. Demand accurate and timely minutes for all board and committee meetings
  9. Demand independent investigations when needed
  10. Blow whistles when warranted.

As everyone knows, managing an organization is not an easy undertaking. Successful companies employ a continuous process that addresses and acknowledges a constant flow of information. The primary focus of both the board and corporate management is to identify problems before they seriously constrict and assault the overall condition of their company. A recent case illustrates this. The company had been in business for over 35 years and for most of those years it operated in a prudent manner and was successful from a financial perspective. However, in recent years the company started experiencing liquidity problems,  causing operational problems. These issues had a damaging impact on the company’s relationship with its consortium of banks.

The management team and board of directors chalked up little credibility with its bankers as evidenced by a placement of a series of forbearance agreements. These agreements placed certain restrictions on the company’s operations, including oversight by an independent advisor. Instead of working with the banks in an attempt to deal with the swirling financial issues, the company’s management and shareholder resisted efforts to resolve the company’s financial (liquidity) problems. Rather than working on the development of a strategy on the company’s long term survival, the board and management served as impediments to resolving the problems.

Any constructive efforts made by the management team to resolve the company’s problems were  stonewalled by the following issues:

  • The shareholder had complete control of the board – three members of the board were insiders that worked for the company and three of the four outside directors were family members of the shareholder.
  • As a result of this structure, the shareholder had total control which resulted in a lack of independence on the part of the board.
  • The lack of adequate financial controls resulted in a forensic audit that revealed the owner had several million dollars of personal expenses that could not be substantiated as legitimate business expenses.
  • The lack of prudent oversight and financial controls  resulted in the following :

    • Resignation of all the inside directors
    • Resignation of the company’s CFO due to potential liability regarding the quality of the company’s financial information
    • Resignation of the company’s independent auditors based on a question regarding the “going concern” concept.

Conclusion: Effective and serious stewardship  as a director requires the board to have the courage to exercise savvy judgment independent of management. These types of issues will remain in the spotlight of public accountability with corporate governance failings and oversight issues leading to litigation and often will serve as a subject for a Wall Street Journal page-one article or Bloomberg online analysis.

With the threat of harm to reputation, costs of remedial action(s) required along with possible significant fines,  an astute board cannot afford to make bonehead decisions. As new risks emerge and  breed, success increasingly relies on the board to see the crises coming, to demand and evaluate the information needed to make critical business decisions and then, armed with that information, have the courage to carry through.

Expert Payment

Pay Your Expert If You Want Supporting Testimony

When challenging the IRS over the value of a Decedent’s share of an LLC, trustees of the Estate smartly used a valuation expert witness, only to fall short because they failed to submit payment necessary for the expert to testify at trial.  In a story from FMV Opinions, Inc. Lance Hall, the managing director of FMV Opinions, Inc, the Estate of Diane Tanenblatt provides a cautionary tale to parties who think they can use an expert witness report without accompanying testimony during trial.

The Estate of Diane Tanenblatt Challenges the IRS

When submitting a value of an estate to the IRS for tax purposes, the trustees of the Tanenblatt Estate hired an independent expert witness to review the IRS valuation.  The IRS submitted a value of the Estate based on a “Net Asset Value” calculation to derive the value of the Decedent’s share in an LLC.  The Net Asset Value approach, which considers only the assets and liabilities of an estate, arrived at a value that the IRS used to assess its estate tax.

The Estate, unsatisfied with the IRS value, hired an independent valuation expert witness.  The Estate’s expert witness combined a Net Asset Value approach with an Income approach – which factored in the income associated with Tanenblatt’s share of the LLC – and arrived at a value 42% below the number the IRS calculated.  The lower value would, of course, lower the amount of the estate subject to IRS estate tax.

The Estate expert witness’s use of the income approach in addition to the Net Asset Value approach is uncommon when valuing shares of LLC’s or corporations, and in order to withstand the IRS challenge to the new value, the Estate needed its expert witness to testify in trial.  The Estate neglected to submit full payment to its expert, however, and was unable to substantiate her claims without her testimony at trial.  As a result, the IRS value was accepted and the Estate’s use of an expert witness to generate a report was ultimately for naught.

How the Estate Properly Used Its Expert Witness

Before looking at what the Estate did wrong in this case, it is worth noting that there were some positive decisions.  First, hiring an independent expert to challenge a tax valuation can have a positive impact on any person who is facing estate tax on an inheritance, real estate tax on his property, or any other tax on possessions or property.  The IRS – or any local or state tax agency – can be challenged, but doing so requires the use of a valuation expert witness to do a complete analysis of the property, assets, or other financial holdings.

The Estate was also smart to have its valuation expert witness generate a complete report that explained her methodology and defended her value of the Decedent’s share of the LLC.  Although an expert witness will need to be present at trial, it is important that parties have the expert provide a clear report that explains her qualifications, details her analysis of the facts, the methods used to come to her conclusion, and the support needed to defend her position.  An expert witness report can be crucial to building a case – whether it is for a tax valuation, a medical malpractice suit, or a personal injury claim.

Why the Estate Failed

Despite making good use of a valuation expert witness before the trial, the Estate was ultimately unsuccessful because it failed to pay its expert in time for the trial.  An expert witness report cannot be properly used at trial without the testimony of the expert.  In order for the work that an expert witness does before the trial to have impact during the trial, the expert must be there to explain her work and defend it against the opposing party.

In this case, the expert witness’s testimony was particularly necessary because the Estate was suggesting a unique valuation technique – something that needed to be explained and defended against IRS challenge.  The Estate’s failure to pay its expert witness serves as a cautionary tale to any party considering the use of an expert to support his case.  When hiring an expert witness, it is important to know the full cost – including what it will take to have the expert testify.  Without testimony, an expert witness report is likely not admissible during trial, and without adequate payment, the expert will not agree to testify despite work previously completed.

(The above summary of an FMV Alert is published with the permission of FMV Opinions, Inc. The full article can be accessed here.)

"Hot Tubbing" Expert Witnesses

“Hot Tubbing” Expert Witnesses

As experts we are all familiar with the process for presenting expert testimony in the American judicial system. The plaintiff or prosecution typically calls its expert to testify as part of its case, and after the expert has concluded testifying on direct examination, been cross-examined, and perhaps then been subject to re-direct, the expert goes home. When the defense presents its case it calls its expert, and that often happens days or weeks later. The experts never engage in a dialogue, or respond to the other’s comments in real time, or even have a face-to-face debate on the relevant issues. While experts may be recalled to the stand later in the trial, that is relatively unusual. Only in high-stakes cases might both parties’ experts be in the same courtroom for the entire trial, and even then each of the experts only testifies in his or her turn. The trier of the fact, often a jury of lay persons, then must decide which of the experts it believes to be more credible, without having had the opportunity to have each expert explain why he or she agrees or disagrees with what the other expert has testified to.

For years Australian courts have successfully used another approach. In the Australian approach both sides’ experts often appear in court at the same time and are primarily questioned by the judge. Each expert can immediately comment on the statements made by the other expert. In many ways the process resembles an election campaign debate where the moderator asks both candidates questions, and each must quickly respond to the other’s comments. In the hands of a skilled questioner it can be made clear to the trier of fact those points that both experts agree upon, which points they disagree upon, and why, with the reasons for each expert’s positions made clear right away. The jury would still make the determination.

This practice known as “witness conferencing” (and sometimes referred to as “hot tubbing”) also has been successfully used in international arbitrations as well as courts in England earlier this year. Its use in the United States — whether by stipulation of the parties or as part of a court-ordered experiment — may only be a matter of time.

How would hot-tubbing impact experts? Rather than merely respond to a set of largely rehearsed questions on direct examination, and then parry the other side’s questions later in cross, hot-tubbing would put a premium on the expert’s knowledge and presentation skills. Quick-thinking and the ability to pro-actively make balanced, clear and persuasive statements would be critical throughout the course of a trial. The expert would also have to have a more in depth knowledge of the subject matter, as the persons asking the questions are not only lawyers (who may not be particularly knowledgeable about technical details) but also an opposing expert sitting in the same “hot-tub.”

For more details see http://economia.icaew.com/opinion/july-2013/a-new-approach-for-expert-witnesses

Expert CV Checklist

The Expert CV Checklist – Update

In my earlier article, “The Expert CV Checklist,” I recommended that you not list extensive information about your legal consulting.  I would, however, recommend that in addition to using deliberately bland terms like “litigation support” or “legal consulting,” you use the term “expert witness” at least once in describing your current work.  Even though I prefer not to publish my clients’ CV’s on their websites or in their directory listings, an expert CV can find its way to the Internet and it is good for optimization to have that key term, “expert witness,”  there in the context of the expert’s area of expertise.

Qualifying an Expert Witness at Trial

Daubert Rules: Qualifying an Expert Witness at Trial

An expert witness to a litigated case ordinarily used by an attorney serves two functions:

  • As a consultant with respect to issues of a matter.
  • As a witness providing testimony at a deposition and/or at trial.

In order to serve as an expert in any capacity, the individual must demonstrate significant experience in a field of study recognized as legitimate science.  This article is designed to discuss expert opinions based upon scientific evidence, for example, DNA testing and methodology in a criminal case.

Daubert Trilogy:

The criteria for an expert’s testimony and the standard for reviewing by the trial court has been set forth by three seminal cases consisting of Daubert v. Merrell Dow Pharmaceuticals, Inc (1993) 509 U.S. 579, 113 S. Ct. 2786; Kumho Tire Co., Ltd. v. Carmichael (1999) 526 U.S. 137, 119 S. Ct. 1167; and General Electric v. Joiner (1997) 522 U.S. 136, 118 S. Ct. 512. These three United States Supreme Court decisions are commonly known as the “Daubert Trilogy,” They set the standard for how experts are qualified prior to assisting before or during trial.

Under the Daubert standard, the trial court evaluates expert opinions upon reliability for scientific evidence in a given legal dispute. The reliability prong for the offered scientific evidence is:  1. whether the scientific theory has been reviewed by scientific peers and published (theory accepted); 2. whether the scientific theory has been tested;  3. the perceived known or possible rate of error for the scientific technique and 4. whether the theory has obtained general acceptance in the scientific community.

Qualifying an expert at Trial:

In order to qualify an expert witness for trial, the attorney offering the expert must demonstrate to the presiding judge at trial that the witness is competent in the area of offered testimony and the area of offered testimony is such that an ordinary person would need assistance in understanding the subject matter. For example, DNA explanation, testing and linking in a criminal matter.

The offered expert may be qualified through education, skill, training, knowledge, practical experience or all. As a pre-requisite for expert testimony, the offered expert must be able to articulate to the court the underlying methodology and procedures utilized in formulating his or her opinion(s) on the precise subject matter at issue.  Such includes hands-on experience, literature review, training, and education. There is no clear rule as to the degree of knowledge needed to qualify an expert in a given area of expertise. Once competency in the given area is established under the “Daubert Trilogy” the expert’s knowledge of the subject matter of his or her testimony affects the credibility of the opinions offered at trial on direct and cross examination.

It is the trial court that determines if the offered expert can testify as a matter of law in a particular field. Essentially, the trial judge determines the following: 1.That the scope of offered expert testimony is such that an ordinary person would need to hear the expert opinions in reaching an opinion where the ordinary person does not necessarily have the knowledge of the offered subject matter, and 2. Whether the person offered to give the expert testimony has the necessarily knowledge, training, experience, skill, and expertise in the area where expert testimony is offered to be given to render an expert opinion.

It is imperative for a trial attorney to make sure that the person retained as an expert is qualified to render an expert opinion at trial in the subject matter designated in the expert witness disclosure. This is why experienced trial attorneys typically disclose experts who have already been qualified to testify by another judge in prior cases that have gone to trial.

The Ten Commandments of Testifying at Trial

The Ten Commandments of Testifying at Trial

     From the moment you enter the parking lot, be polite to everyone you encounter. This means in the coffee shop, the rest rooms, and hallways, as well as the courtroom.

II     Address the attorneys by name, or as Sir or Ma’me, and the judge as Your Honor.

III    Remember that the reason that you are in court is to help the jury understand the scientific and technical aspects of the case.

IV   Focus on communicating in words the jurors can understand. Avoid jargon, and speak in    clear, concise “sound bites.”

V    Dress like a professional. Avoid excessive jewelry, outrageous neckties, and lapel pins.

VI   Always tell the truth, as opposed to a lie. The whole truth, as opposed to a “half-truth.” And nothing but the truth – which means don’t embellish your answer with misleading qualifiers.

VII   Don’t be afraid to say, “I don’t know,” that means that you did know the answer to theother questions you answered.   On cross-exam, 80% of questions will begin with, “Isn’t it a fact …,” “Wouldn’t you agree…,” “Is it fair to say …,” or “Isn’t it possible …” Listen attentively to all questions. If there is something you don’t understand, ask for clarification or rephrasing.

VIII   Always take the time to prepare for direct and cross-examination with the sponsoring Attorney. If the attorney balks at paying you for your time – do it for free! Don’t go to court unprepared and think you can “wing it.”

IX    Recognize that cross-examination is confrontational, and see it as an opportunity to demonstrate grace under pressure. Never get defensive. If something nasty or untrue is alleged, don’t lose your temper, just politely and respectfully state that he/she is mistaken.

   Be yourself, have fun with the questions, and remember that you know more about your field than any other person in the courtroom – that is your expert advantage!

Effective Trial Techniques For Cross-Examining Expert Witnesses

Effective Trial Techniques For Cross-Examining Expert Witnesses

Effective trial techniques for cross examining the opposing expert begins with preparing for the expert’s deposition before trial, taking an effective deposition of the expert, and then utilizing the generated information from the deposition in a series of questions at trial to bolster all the favorable answers for one’s client and to the judge or jury.

To effectively cross-examine an opposing expert witness, the attorney has to come in prepared to do battle with a person who has far more education, knowledge, background, and credentials in the subject matter than the lawyer.   The attorney’s initial preparation starts with a thorough review of the relevant facts of the dispute, familiarizing himself with the subject, and formulating the legal issues involved.  The attorney may even want to hire a consulting outside expert who has specialized experience in the field. If opposing side retains an expert, that expert is also a very effective source of information.  The key portions of the opposing expert’s report –the conclusions and assumptions on which the expert opines — are the fodder for effective cross-examination. Once identified, one can tailor an effective rebuttal.

Effective techniques:  To effectively cross examine an opposing expert at a deposition or during a trial, an attorney should:

  1. Understand the key issues and facts of the case and then, focus upon litigation strategies, including the use of one’s own experts to lay out in a clear, understandable manner the facts and the substance of the opinion for the judge or jury;
  2. Thoroughly examine all the evidence, including the scene of the incident, closely and in person.  The attorney should be intimately familiar with all the facts and evidence in the case and be prepared to refute what the opposing expert has said.
  3. Diligently read and examine all the documents the opposing expert has prepared before conducting the deposition or going to trial.  Expert witnesses, as part of the process, produce documents such as appraisals or expert reports. The attorney should locate and highlight any significant disclosures and representations made in the documents that support his or her stance.
  4. Learn as much as possible about the opposing expert’s professional background. Read publications authored by the expert.  Read other cases where he/she appeared in the role of an expert witness.
  5. Consult other attorneys who have had experience with opposing expert in similar cases.  To see just how effective (or not effective) a witness is, sit in a court and watch his/her testimony in other matters.
  6. Consider feedback from your own expert (whether a consulting or testifying expert) to help you formulate differences between the respective experts.  Your case might become even significantly stronger if your expert can show that there was no basis or substance to the opinion, or the assumptions/methodology relied by the opposing expert were problematic.

Questions for trial:  The techniques for cross examining any expert let alone an appraiser expert do not differ than what would be ordinarily used with another witness or a party to a lawsuit.

  1. Ask only questions that have a response with a yes or no answer.
  2. Start strong with questions that (a) are effective for your case where the answeris already known to the attorney and (b) will capture the attention of the judge or jury.
  3. Have simple and short questions so that the judge or jury can readily understand them.
  4. Make sure the answer to every question is known to the attorney. After all, the expert’s deposition was supposedly taken.
  5. Focus solely upon vulnerable areas for the other side and his or her expert.
  6. Use exhibits that tell the story. They keep the judge and jury tuned in.
  7. Do not lose your or the jury’s focus by repeating already admitted issues in the cross examination. Once admitted, move on to the next point.
  8. End the cross examination at trial on a high note such as a damaging admission by opponent’s expert that favors your client.

Conclusion:  Cross examination of the other party’s witness is important at trial. Focusing upon the trial’s theme, the differences between the respective experts, and discrediting the opposition’s expert, results in an effective cross-examination of any expert.

Real Estate Standard of Care Expert

Key Challenges of a Real Estate Standard of Care Expert in Deposition and at Trial

Selection A. Real Estate Standard of Care Expert:

When selecting an expert real estate standard of care expert for trial, an attorney ordinarily selects a real estate broker who has been involved in at least fifty (50) real estate transactions or a real estate attorney with substantial practice in the field. To qualify as an expert, one has to have special knowledge, training, skill, experience or education in a particular subject matter. This broad definition allows a licensed real estate broker to testify in a real estate dispute provided he or she qualifies as an expert and has an opinion with respect to the particular standard of care issue at the heart of the legal dispute.  Whether the expert witness is a licensed broker or an experienced attorney, the witness must be able to show training and professional practice that establishes status as an expert in the field.

Challenges

Selecting a Strong Expert Witness: The biggest challenge for an attorney in selecting a real estate standard of care expert is to retain and designate someone will not be exposed as weak on cross examination by a skilled practitioner, particularly if the other party’s standard of care expert is well qualified in the area of disclosure as an expert. The jury will be instructed to consider the qualifications of the competing experts, and the stronger or more experienced one in the state of the field and the issues of the case will have an advantage.

Believability:   In trying real estate standard of care cases, believability of an expert is based upon his or her professional experience in the real estate market. The key element in the expert’s testimony is being believable with respect to the facts of the underlying transaction and the ultimate opinion rendered.

One way to make an expert witness effective is to make sure he or she is well prepared as to the issues.  Before retaining an expert, it is imperative that the attorney clearly explain the facts of the case to the witness, and how those facts align with his or her professional expertise. Throughout the course of a case, it is equally important for the attorney to keep the expert up-to-date and familiar with the progress of the case and convey any changes or setbacks that are relevant to his or her opinion. This will give the expert a chance to make last-minute changes to his or her opinion or the underlying data.

A competent expert who has prepared a well-founded, cogent opinion and can testify in language understandable to a law jury will be considered more credible than experts with incomplete and inconsistent reports.

Retain an expert (consultant) early: Far too often attorneys select a real estate expert at the last moment and without much thought of what the real issues are. Custom and practice is to mail the complaint as soon as possible to the real estate standard of care expert for an early opinion well, before expert witness disclosure. This allows an opportunity to ferret out issues in discovery that an attorney might not initially see.

When representing a plaintiff in a real estate action, the attorney should have already consulted with a standard of care expert to make sure that naming him or her is supported by the facts of the matter and that the expert is qualified in the field to render an opinion on the issues in the case.

Conclusion:  The biggest challenge that a real estate standard of care expert faces is being adequately prepared for deposition or trial by the attorney designating the expert assuming , of course, that the designated expert qualifies in the subject matter. Sentiment is that experts either fare well or poorly at trial based upon the documentation and evidence provided or not provided from the very attorney who retains the expert. Hence, it is important for the attorney representing his or her client to assist the expert and prepare him or her to challenges to their report.   With effective and well-prepared experts, matters that seemingly are headed for trial often settle  through compromise, rather than leave it to judicial strangers.

How Does a Real Estate Appraiser Expert Deal With Weaknesses in His or Her Case?

Every retained trial expert will eventually be faced with a situation where he or she may be facing an uphill battle with respect to shaky, weak opinions expected to be rendered at trial. Some real estate cases set for trial simply have BAD facts for one side or the other that cannot be totally explained away. Under these circumstances, the retained appraiser simply has to make the best of what the facts are in rendering the necessary opinions in a weak case for the client or attorney.

Expert Witness Preparation:  To formulate a defense in these situations, the attorney and  the real estate expert witness must prepare a presentation of the appraisal opinion that can be understood by jury members who have little or no knowledge of the valuation process. Easy to understand language combined with attractive and engaging exhibits can help jurors understand a difficult topic – giving the expert testimony more credibility in a weak case.

The appraiser should also be prepared to deal with weaknesses in his or her position on cross examination.   While it is impossible to anticipate every point of attack, and the questions that will be asked, preparing to explain all aspects of the appraisal in an effective manner helps the expert emphasize the strength of his or her testimony when challenged by opposing counsel.

Confront Weaknesses: Every real estate case has weaknesses that an expert cannot simply ignore.  A well prepared and successful real estate expert witness knows where he or she is vulnerable, but is fully able to speak about these weaknesses in a way that makes them appear trivial. Psychologists have shown that one is more persuasive if both sides of an issue are raised by the expert as opposed to adopting a “used-car-salesperson” approach of trying to hide obvious points of vulnerability. Weaknesses of an appraiser expert should usually be buried in the middle of each phase of the trial, never at the beginning or the end since the jury or judge will remember beginnings and ends more readily than the middle.

Accordingly, the real estate appraiser expert needs to recognize, acknowledge and have an explanation for gaps, inconsistencies and improbabilities of his client’s case. By doing such, the real estate expert can minimize harm and bolster his own credibility more to the jury or judge.

Likewise, recognizing the other side’s position and evidence is key. By analyzing the opponent’s case to determine where the disputed expert opinions, theories, and data supplied are deficient and addressing consistencies and inconsistencies of the other expert with plausible, relevant explanations will create a greater chance of exposing at trial why the other side is wrong in forming his/her opinion  and thus raising doubts about his or her expertise.