August 16th, 2017 by Rebekah Smith
In June, the National Association of Certified Valuators and Consultants (“NACVA”) held their annual conference in Chicago. I was invited to speak on a topic of my choice and chose one of my favorite presentations – “The 3 R’s of Being a Defense Expert – Readin’, Ritin’ and Rebuttin’”. I started the presentation by discussing some basics regarding damages and what a damage calculation should accomplish. We then moved on to addressing the R’s.
• Readin’ – We first discussed reading an opposing expert report and some critical things to look for, such as, has the expert connected the allegations to the damage calculation or has the expert simply done a calculation that has no relation to the matter at issue? Is the expert opining to matters outside their expertise? I covered an example during the presentation where within the same report the expert said both “I am not an expert in software development” and “It is my opinion that the software would have been obsolete within five years.” True story.
• Rebuttin’ – We then discussed what appropriate rebuttal is for a financial expert. There are many cases where experts have been challenged for expanding their role beyond what the courts intended. A recent case Rowe v DPI Specialty Foods (215 U.S. Dist LEXIS 110605) discussed whether an expert put too much emphasis on causation. There was some spirited discussion from the audience with respect to differing views on the role of the expert as it relates to causation or rather the expert establishing the causal link. The audience agreed that this is many times an area for rebuttal but there were differing opinions on exactly what an expert should consider related to causation.
Other areas that sparked conversation were unsupported assumptions including ignoring evidence that undermined assumptions and the difficulty of presenting a zero damages opinion even if that is the correct answer in your opinion.
• Ritin’ – Finally we discussed how to present your findings in a professional and easy to understand manner. I provided the audience some examples of rebuttal reports for some jumping off points for future projects. We also talked about the concept of “alternate calculations” as a damage expert.
Many of the pointers for the experts are also relevant for attorneys when considering how to assess an expert’s report. We didn’t talk about “math” or “numbers” at all during the presentation (well, okay, we did talk about numbers a couple of times; it was a room full of accountants after all!) If you are interested in learning more, please let Keith or me know (firstname.lastname@example.org or email@example.com). We have also presented portions of this and other CLE to law firms at lunch and learns and would be happy to do the same for your firm.