Expert Opinion

This is a column about EXPERTS...in all disciplines. An accredited (& "so called") expert writes it. In it, you'll hear about how to find experts, choose experts, use experts, and challenge/question their expertise. In the coming weeks and months, you and I will review cases and expert-relevant articles, presentations, publications and software. We'll interview prominent experts, judges & trial attorneys, and maybe even get one or two to be a "guest columnist" on a topic related to experts. Too, we will address related topics and issues closer to my own area of expertise (business valuation & economic/financial testimony).

Topics in Future Columns

For example, we'll touch on:

Classic & current case law, on point regarding use of experts and of the testimony & evidence that they typically offer.

Discounts & premiums from public market pricing, & how to quantify them & where to go to for guidance/reference data.

Basic standards, approaches & methods for valuation of businesses and other tangible/intangible property.

Accrediting organizations & societies for Experts, in general, & for Business Valuers (and other experts), in particular.

How to distinguish the "easier to get into" expert groups & expert credentials from those that require more rigorous tests & screenings prior to admission &/or awarding of an expert designation.

Making sense (and informed choices) from apparently conflicting expert opinions.

A Model form for an Expert's Report, useful in most all venues.

Generalized deposition questions for a Business Valuation or Economic Damages expert.

The "Meetings of Experts" concept, and how it streamlines (shortens) the time & fees spent by both experts, and/or minimizes areas of conflict between experts' opinions.

Along the way, I'll include some unsolicited and inadmissible personal opinions, especially on instances where an expert might be better utilized to advance the cause and efficacy of the dispute resolution process itself.

The Academy of Experts

The Academy of Experts (formerly the British Academy of Experts) is just for Experts, of all legitimate disciplines. It has high ethical standards & an inclusive approach to membership (these include trial attorneys (Barristers, to our UK friends), judges and other interested officials, as well as a variety of Expert Witness types).

Following are a sampling of items from the Academy's Members' Handbook. They seem to echo newer attitudes about experts that I see expressed more & more by our top jurists like Judge Laro of the U.S. Tax Court. (Please remember, this is a London-based organization, and some of the terms & spellings quoted following are noticeably different from those that you & I normally use).

"In Britain, Experts are not normally advocates (a limited exception is noted...) and have no adversarial or partisan role to play. At hearings they may be on oath or will have affirmed and their central function must be to assist the Court, Inquiry or Tribunal to arrive at just and sound decisions.

Experts may be called upon to function in any or all of four roles:

As Consultant in a general advisory role.

As Expert Adviser to investigate a problem and/or provide specialist advice.

As Expert witness in proceedings.

As Expert to a Court or other Tribunal.

It follows that objectivity, independence and impartiality must characterise their work to the best of their ability throughout their investigations and reporting so that their Clients, Instructing Solicitors and Counsel are never knowingly misled in respect of either the weaknesses or the strengths of a case. Clients sometimes themselves have to be reminded not to withhold relevant information which, should it have to be disclosed eventually, would undermine an Expert's credibility.

An Expert Witness does not have an easy position to occupy, but independence and integrity are crucial. The matter was outlined thus by Lord Wilberforce in Whitehouse v. Jordon (1981) 1 WLR 246 at page 256:

"It is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the Expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating."

It is not improper to advertise services as Consultants and Experts when the advertiser has appropriate qualifications but it is not desirable for members of the Academy to advertise free initial advice as an inducement to enter into negotiations for such services.

In practically every case it is extremely desirable that Experts in the same field of knowledge should meet before the trial. Usually it is best for them to meet before reports are exchanged, so that reports may reflect greater understanding of the case brought about by the meeting.

The purpose of the meeting is not for the Experts to attempt to reconcile their clients' rival accounts of events or to decide between them; those are tasks for the Court. The purpose of the meeting is for the Experts to discuss technical matters, which are within their expertise and their respective opinions concerning them

Your Responses Would Be Appreciated

Now, how's that list for an agenda of interesting changes to what you have experienced with Experts in the courtroom? Have any war stories that you'd care to share with us that illustrate the best (or the worst) examples of Experts and their use in your practice? Let me hear from you!

Ralph E. Ostermueller, CPA, ASA, ABV, CBA, CFE, MAE, is a St. Louis-based Business Valuer & Economic Expert Witness. He has testified in the Canadian Supreme Courts, & is regularly retained in U.S. Federal, State(s), Tax, Probate & Bankruptcy Court-related matters. For business valuation matters, he serves as external counsel to other firms & as an independent arbiter. He is the Managing Member of The Ostermueller Group, LLC.