It’s no secret that to properly help you and your clients win your cases, the experts you hire must be credible. An expert’s credibility is based upon many factors, including how honestly they react when confronted with their own errors. An expert’s reaction to their error will determine whether or not that error ends up being fatal to your case.
To see how this type of situation might play out, let’s create a fact pattern. You have hired a forensic accounting expert. During the engagement, you provided them with all of the relevant discovery needed for the case and your expert was granted the appropriate access to the parties for the interviews that were requested. After the exchange of expert reports, and with no settlement in sight, the other side prepares to take your expert’s deposition.
In preparing for the deposition, your expert reviews their major assumptions and calculations that they utilized for the report and realizes that there is an error in their calculations that materially impacts the findings in their report.
At this stage, your expert is at a very important fork in the road: they can turn left, hope for the best and assume that your adversary won’t catch the error (very unlikely); or, they can turn right, acknowledge the error, and prepare an update to the original calculations and issue a supplemental report.
We all know there is only one way to handle an error in a report - acknowledge the error and correct it. It is not uncommon for a report to contain an error or two, so the best way to defuse the situation is to take it head on.
During my career, I have seen this happen first hand. In one particular case, an expert issued a forensic report on which the outcome of the case significantly relied. After the report was issued, the expert noticed an error in the calculations. The expert notified the attorney immediately and issued a supplemental report. Prior to the issuance of the supplemental report, the other side noticed the expert for a deposition. When it came time for the deposition, the expert was ready to address the issue head on. After the attorney’s introduction, the expert requested to make a statement, which was granted. On the record, the expert indicated that during the preparation they noticed an error in the calculations and issued a supplemental report.
Obviously, the expert knew that the attorney who was going to depose him was fully aware that the expert had issued a supplemental report, but the expert wanted to make sure it was clear that they were in front of the issue. This allowed the expert to take the steam out of the opposing attorney who was ready to expose the error on the record.
Of course, there is a difference between an expert issuing a report with an error or two and an expert who notoriously issues sloppy work. There are experts who issue reports that manipulate the data in an effort to arrive at a finding that advocates for their client as opposed to the expert’s opinion. This article does not address that type of expert. Hopefully, the Daubert standard and reputation implications will deal with those types of situations.
Experts are human. Every expert has probably issued a report with an error at one time or another. It is how they handle the issue that sets them apart.
Which expert would your rather hire — the one who hides their mistake, hoping that no one will notice, or the one who accepts responsibility and takes decisive action so the error does not become fatal to your case?
Michael A. Saccomanno is a Partner with Friedman LLP’s Forensic and Litigation Services Practice and is located in Marlton, New Jersey. Since 2001, Michael has dedicated his career to forensic and litigation matters. Michael A. Saccomanno can be reached at 856.830.1720 or firstname.lastname@example.org.