Expert Opinion

By:

Ralph Ostermueller

CPA, ASA, ABV, CBA, CFE, MAE

Academy of Experts Announces New EXPERT'S DECLARATION for Use in Reports and Testimony by Experts, Worldwide.

There is growing evidence that our "cousins" who practice in the English system of Justice are moving more rapidly than we are to effect reforms in their use of Testifying Experts. Evidence the recent publication by the London-based international body, The Academy of Experts, of The Expert's Declaration.

It is almost a typed page long, and designed for insertion between the end of the expert's report and the expert's signature. The Expert's Declaration is a bold & clear step. It requires that all experts be independent, impartial, balanced and focused toward the Court's needs, primarily, in the performance of their limited function within the Justice system.

It specifically prohibits contingent fee arrangements for experts. It requires immediate & written notice of changes or corrections to existing reports. It even requires that all known matters, which might adversely affect the expert's opinion, be included in the report.

The Expert's Declaration requires the expert to perform a due diligence-type review before including or excluding anything suggested by others, and particularly by the expert's instructing attorneys.

In a hopeful and trend-setting departure, The Expert's Declaration states that another expert may assist in the expert's cross-examination.

Expert-Assisted Depositions of Other Experts Leverage Attorneys' Effectiveness

Having previously assisted attorneys during depositions of other experts, I can vouch for the improvements that this specific element can bring. Primarily, another expert can help the attorney be more clear and penetrating in examining the underpinnings, or lack thereof, to another expert's opinion. For example, another expert better recognizes "deflections" in an expert's technical jargon-laced reply to a deposing attorney's question, as well as critical and timely opportunities for follow-up questions to discover underlying rationale, assumptions, data sources or flaws in another expert's work. Further, a clearly communicated deposition plan and a close working rapport between the attorney and assisting expert can greatly extend the attorney's effectiveness at deposition. Hopefully, and some day soon, those potential benefits at depositions will also extend into the courtroom via expert-assisted cross-examinations in the U.S. Justice system.

Following is the relevant text of the Academy of Expert's recent release:

The Expert's Declaration

I, _______________, DECLARE THAT:

1. I understand that my primary duty in written reports and giving evidence is to the Court, rather than to the party who engaged me;
2. I have endeavored in my reports and in my opinions to be accurate and to have covered all relevant issues concerning the matters stated which I have been asked to address;

3. I have endeavored to include in my report those matters of which I have knowledge, or of which I have been made aware, that might adversely affect the validity of my opinion;
4. I have indicated the sources of all relevant and material information I have used;
5. I have not without forming an independent view included or excluded anything relevant or material which has been suggested to me by others (in particular my instructing lawyers);
6. I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any material correction or qualification;
7. I understand that;

1. My report, subject to any corrections before swearing as to its correctness, will form the evidence to be given under oath or affirmation;
2. I may be cross-examined on my report by a cross-examiner assisted by an expert;
3. I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

3. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in anyway dependent on the outcome of the case.

Your Comments, Please

Do your experts practice according to The Expert's Declaration? Should they? Are there times when they definitely shouldn't? Does a judge see these question(s) differently than a trial attorney? Can a trial attorney be a proper advocate and still support The Expert's Declaration? Do you see the U.S. Justice system moving more toward requiring a de facto Expert's Declaration? Soon?

Let me hear from you c/o this newspaper, or directly at experts@ostermueller.com.

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