I have been fortunate to be a facility member of the National Judicial College for the past several years, teaching economic damages and business valuation in their Complex Commercial Litigation and new judge training series. One session, called “A View from the Witness Stand,” is supposed to provide an expert’s perspective about how judges can help experts provide more effective assistance to judges or juries. However, what usually happens is the judges end up providing a lot of insight to me – it’s really a great “View from the Bench.” In my recent session in San Antonio, there was some very interesting discussion around experts that I thought you, as counsel, might find valuable.
- The course teaches the judges information about damages and valuations. One of the judges not so subtly asked the instructor team, “why do we need to worry about this, shouldn’t the attorneys figure this out and tell us?” (I’m paraphrasing, but you get it.)
- Judges expect you to flesh out the issues and make sure they (or the jury) are adequately informed and educated about the relevant damages or valuation issues. If you think that judges will take it upon themselves to sort through the damages and valuation issues that will likely not happen without your assistance. They will do the work to learn the fundamentals (hence, the training), but they rely on the attorneys to bring out (in an understandable manner) the relevant issues for the particular case.
- Experts often describe themselves as “independent” or “objective.” While the judges agreed that experts should strive to be objective (and that most good ones are), on the whole, they do not see experts as independent – and are perhaps skeptical of experts who make that claim. The judges feel that an expert hired by one party to issue opinions is not “independent” as they use the term. To the judges, an “independent” expert is one hired by the court and not by either party.
- As a CPA, the American Institute of Certified Public Accountants (AICPA) defines “independence” and the AICPA’s rules require that I assess my independence before taking engagements. When I describe myself as an “independent expert,” I am basing that on the AICPA definition. It was interesting to learn that the judges had a different view of independence.
- I heard from several judges (including quite a few in the newly formed Indiana Commercial Court) that they have the power to hire their own expert (one who is “independent” in their view) and require the parties to split the cost of the court’s expert. They said that they are increasingly willing to impose this on the parties, especially in circumstances where it is apparent that the parties’ experts lack objectivity. It is my understanding that the new commercial court in Indiana expressly gives judges the power to hire their own experts.
- This is a good warning for experts and for attorneys to make sure that the retained expert is being objective and is perceived as such by the court. Otherwise, the judges I talked to are taking a more active role in making sure they have objective information to consider, which then is an additional cost typically borne by the parties.
Do you have any thoughts on the judges’ perspectives or any other words of wisdom from the bench to share?