Choosing the right financial expert can be the most important decision an attorney makes. A financial expert can have a significant impact on a case and could potentially determine settlement or trial outcomes. When it comes to selecting an expert, the attorney must evaluate the competence and experience of the candidate in order to choose one most appropriate for the litigation matter at hand. But what makes the expert an expert? Should they be judged based on their knowledge or their experience? Here are five tips to consider when choosing a financial expert?
Quick Tip #1 – Look beyond a financial expert’s list of titles.
When assessing a financial expert’s knowledge base or “expertise,” one may be tempted to be impressed by the number of letters following their name. For example, should you assume that Bob Smith, CPA/ABV, CFE, CFF with ten years of experience is really that much better than Joe Jones, CPA who also has ten years of identical experience? While it is important for a financial expert to have the proper and appropriate licenses and certifications, possession of these titles does not necessarily indicate ability. Many standardized exams (CPA, ABV, Bar, Medical Board) are measures of a candidate’s memorization skills and the ability to interpret theory which they may never actually use in practice. Arguably, these exams do require a basic understanding and knowledge base, which is important; however, they are only tests.
Quick Tip #2 – Consider an expert’s list of testimony experience.
When scouting for a financial expert, it is common to request curriculum vitæ (CV), which should include a listing of testimony experience. Your financial expert should have a strong technical background and a reasonable amount of experience in testifying, especially if it is something you know you may encounter in your specific case. This indicates that the financial expert has experience in being tested on his or her knowledge base in front of a judge or in another official setting.
Nearly all cases settle and there is no verdict. For this reason, you should ask the prospective expert additional questions to distinguish between deposition and trial testimony, to gauge the effectiveness of their testimony. For example, deposition testimony may be a required part of discovery in commercial cases. If the majority of the cases where the experts testified at deposition resulted in settlement before trial testimony, perhaps the expert’s deposition and ability to present his or her position made the other side more amenable to settlement. This is a good thing. In other types of litigation, such as family law where depositions are not as common, this comparison may not be relevant.
While the expert with a surplus volume of testimony may be perceived as highly experienced and proficient by many, it could indicate a lack of effectiveness. A lengthy listing of testimony experience indicates that a large percentage of a financial expert’s cases went to trial or arbitration. This may imply that their conclusions could not stand on their own and needed to be tested in a more formal environment before any merit could be granted to them. Ask a follow-up question to see if the expert was ever successfully eliminated from a case due to their work.
Frequent testimony could suggest a few things (outside of uncontrollable variables such as uncooperative clients, or adversarial opposing counsel):
- The financial expert lacked the appropriate knowledge to convey conclude their findings in such a way to benefit counsel, which would have ultimately led to a settlement before having to go before a judge; or
- The financial expert, lacking this knowledge base, is conducting procedures based on the attorney’s conveyed expectations and desires. This ultimately reflects poorly on the financial expert’s professional judgement and ability to act independently and could lead to a case being unnecessarily dragged out to trial or to an arbitration setting.
While the above scenarios may not explain an expert’s lengthy testimony experience, it is something to think about when making a decision about which expert to choose. Ideally, if a certain expert does have these qualities, it is reflected in his or her reputation amongst community professionals.
Quick Tip #3 – Consult the professional community.
As touched on above, a professional’s reputation within the professional community can reveal the truth about their qualifications and abilities. While knowledge and experience, as indicated by a number of certifications and years of experience, may imply certain things about an individual’s reputation, nothing can compete with the first-hand recommendation of a colleague. When making the decision, it also makes sense to consult with the proposed expert’s supervisor; they can provide feedback on the expert’s strengths and weaknesses.
Quick tip #4 – Consider how well the expert explains their findings to you.
If the expert is able to explain difficult concepts in easy to understand language, offering clear-cut illustrations or analogies, that expert should be effective in communicating to outsiders. For example, an expert who felt compelled to describe all of the nuances of the chemical interaction between ingredients when giving a simple recipe may be tuned out by the audience. Conversely, the expert who can explain the process by breaking it down to a few simple steps will have more success educating the audience and getting their point across. Clear and concise communication of the information will help build the case and establish credibility. This applies to both experienced and novice testifiers.
Quick tip #5– Weigh the expert’s testimony experience
Let’s face it; we have all faced many firsts. Experts are no different. If experience were always required, then eventually there would be no experts left to testify. So, when should you consider an expert who has minimal or no testimony experience? There is no clear or definitive answer. An expert with a lack of experience who is trying to make a good impression will probably be exceedingly prepared, have thorough knowledge of the case and be willing to listen to feedback. On the other hand, this inexperienced expert may talk too much, take the bait on questions, and get nervous to the point of being uncommunicative.
Perhaps a case that involves numerous factual, rather than technical, issues may suit the novice testifying expert. Also, consider opposing counsel. The opposing counsel’s style of questioning could be a factor. In the end, though, your decision may come down to a gut feeling of whether the newcomer is ready.
Conclusion – Consider the needs of your specific case.
It is ultimately most crucial to consider the needs of your specific client and case. Depending on the circumstance, you may be better off with an expert who can communicate and connect rather than the one with a long list of credentials and vast testimony experience. The most effective expert witnesses are able to convey complex information to juries, or triers of fact, in a clear, persuasive and comprehensible manner. Ultimately, in order to get the best possible outcome, you should choose an expert that is appropriate for your client’s needs, knowledgeable in the subject at hand, recommended by the professional community and, most importantly, an effective communicator.
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