When hiring a financial expert for a litigation matter, an attorney should be looking for a number of traits. Appraisers, forensic accountants, economists and other financial experts are often hired on the recommendation of another attorney or by reputation. But an expert is not always a fit for a particular attorney even though they might be known as the "best" expert in a particular area of expertise. It behooves an engaging attorney to interview the expert, in person if possible, before signing the engagement letter.
In addition to the obvious issue of whether the attorney feels that the expert is "a fit" to work with that attorney, here are five other key matters that should be explored by the attorney.
Is the expert qualified to perform the engagement for which they are being considered? For example, CPAs are required under their AICPA Code of Conduct to "undertake only those professional services that the members' firms can reasonably expect to be completed with professional competence."
Competency implies both specialized knowledge and skills. Knowledge of the subject matter involved in the litigation is helpful and sometimes a requirement for a competent expert. More than that, however, it's important for the expert to have the necessary skill sets to apply that knowledge in order to form and support opinions. The engaging attorney should determine, to the best of his or her ability, the competency of the potential expert to perform the engagement. This can be through pre-engagement interviews, references from other attorneys, and research into the expert's education and professional designations.
You should also engage an expert who will exercise due diligence and due care in the performance of the engagement. One need only look to the Daubert challenges that frequently arise in litigation cases today to know that failure to exercise due diligence and due care can often lead to exclusion of testimony. The potential for a successful Daubert challenge of an expert witness can be disastrous for an attorney, often leading to losing the case outright.
The expert should have a reputation for thoroughness and care in performing an engagement. Ask for a list of cases in which the expert has previously testified, including a summary of the nature of the lawsuit, the areas of expert testimony and outcomes. Also consider reviewing court records — avoid experts who have performed poorly on the stand or failed a Daubert challenge in the past.
Honesty and integrity are critical — otherwise the court will perceive the expert to be a "hired gun" for your side. The attorney might have to rely primarily on references from other attorneys for this, but the interview can glean some inferences of these traits.
An attorney wants the expert to give an unbiased opinion regarding the matter at hand. If it turns out that that unbiased opinion isn't as favorable to the client as expected, the attorney will want to know that, too. That's preferable to trying to convince the expert to look at the matter in a different light.
Evaluating an expert's ability to testify can often be done by checking with others who have used this expert or heard him or her testify. But it's also good to use part of the pre-engagement interview to assess the expert's testifying ability. Strong verbal skills and the ability to remain cool under pressure are key.
Interview potential experts using a style similar to how you'd organize direct and cross examination questions. This will provide insight into how the expert will perform in the courtroom. The expert's testifying style should fit with the attorney's style of conducting testimony in trials. If the testifying styles don't match up, the assisting attorney or attorneys for the litigation might want to better match the style of the potential expert.
Once the expert is on board, it's imperative that the attorney and the expert work closely together. The expert should be continuously informed about the status of the case — and vice versa. The attorney should provide all information that's the expert needs to complete the engagement competently. If the attorney holds back information, the expert might be ambushed at trial with facts he or she didn't know. Those might be facts that would have changed the expert's opinion had they been known in a timely fashion.
However, it's often the case that the "unknown facts" are explainable in a way that wouldn't affect the expert's opinion. If the expert has those facts in advance, they can be dealt with at trial and not come up as an ambush. This is a two way street. The attorney doesn't always know that particular information is of importance to the expert, so the expert should also be one who has the ability to seek out such information. In other words, the expert has to be helpful to the attorney in defining what's needed.
A good expert wants to be engaged in a thoughtful and thorough manner. Often, when an expert is thrown in at the last minute, the engagement turns out to be a poor fit. If possible, the attorney should plan enough in advance so that a thorough investigation of these factors can be carried out before engaging a financial expert.
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