| How things have changed.
It’s not too long since the hired gun or pay per view expert
was a common feature of the litigation landscape – if the evidence
wasn’t there get someone near retirement with a lot of letters
after their name to proclaim loudly that white really was just a particularly
light shade of black. In contrast, I recently asked a litigation partner
at a well known firm what he wanted from the experts he engaged. His
response; “I want someone who is going to help me get the best
sustainable result for my client in light of the evidence available”.
His next comment was the basis for this article; “So –
I’ve told you what I want, now – you tell me how I get
this ?”
I am a forensic and investigation accountant –
I have given evidence as an expert accountant in Court and arbitration
hearings and I have worked with some excellent legal professionals.
Set out below are my top ten tips for getting the most from your
expert :
1. Go through a tender process
It takes up time but a well organized tender process can make all
of the difference to finding the right person when putting your
team together. A single telephone call requesting details of hourly
rates is not a tender process.
On a confidential basis give whatever information you can regarding
the case to, say, three experts you might use. The potential appointee
should be required to explain the approach they would propose and
their thoughts about key issues. Other questions might be put to
the proposed expert – the tender meeting provides an excellent
opportunity to see how an individual might perform under pressure
and effectively get some free advice.
Of course, you need to know about fees, staff who might work on
the assignment and also obtain a copy of a proposed Letter of Engagement
(more about Letters of Engagement below).
2. Ask your expert for referees comprising other
lawyers or advocates they have worked with and take up references
Many experts might well know a great deal about their field but
have never or rarely been involved in a legal case. Nothing wrong
with this – but you need to know about it before appointing.
Ask for references including, if possible, one for a matter where
there was a hearing.
3. Does your expert have the right expertise ?
This may seem obvious but is often an issue. I have heard of accountants
in personal injury matters who do not know how to calculate Income
Tax (“My tax partner usually does that for me”); experts
opining about audit negligence who have never been registered auditors.
In one case I attended I heard an “expert” give evidence
about the value of second hand aircraft. On cross-examination it
transpired that the basis for this expertise was an historic subscription
to Aircraft for Sale Monthly or some such publication – one
could almost hear cross- examining Counsel mutter; “Thank
you and good night”.
4. Could you work with your proposed expert ?
Your appointed experts must be part of the litigation team –
by this I do not mean partial but capable of working as a part of
a team with other people. The expert diva – one who wishes
to appear aloof and in some way set apart from the general hoi -
polloi of the case (“you are very lucky that I am here giving
you my opinion about this as I am very busy”) is unlikely
to win the trust or sympathy of either your client or the Court.
Similarly, if your expert is agitated or annoyed at having to justify
or explain their position or possibly appears reluctant to take
other factors into account you would do well to consider the likely
reaction to working under pressure or being challenged in a hearing.
5. Experience giving evidence
If the matter you are dealing with could end up at a formal hearing
you should find out before appointment whether your expert is experienced
in giving evidence or has received appropriate training. We all
know stories of professionals who appear confident and have the
necessary credentials but who, quite unexpectedly, perform poorly
when giving evidence. The truth of the matter is that you can read
and go on as many courses as are available but either you have given
evidence and are comfortable with that type of environment or you
have not.
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6.
Consider whether you will get your expert’s opinion or that
of his / her Manager
Most well known experts will be inundated with work or opportunities
to tender for work. If you are considering a big “name”
for your report make sure you gain some comfort or commitment that
the expert will be able to devote the necessary time to the assignment.
I have been involved with a number of cases where a meeting and
liaison between experts has proved almost impossible due to the
diary commitments of the well known “name”. Furthermore,
when a meeting does take place a senior or some other manager also
attends ostensibly to take notes. It soon becomes apparent that
the named expert has little or no idea about the case and the work
that has been completed and that the report has actually been written
by the manager.
This state of affairs can be disastrous if
the situation extends to a court or other formal hearing. I have
seen this happen once – it was embarrassing and resulted in
a well known accountant losing all credibility with the Court.
7. Letter of Engagement
The rule here is really quite simple – get one at the beginning
of each assignment.
The Letter of Engagement you agree with your
expert should set out inter alia:
- What work will be done;
- Who will do the work;
- How much the work will cost or the basis upon which fees will
be charged; and
- When the work will be completed.
There are plenty of template Letters of Engagement
available and agreement before work is undertaken will help in establishing
the relationship with the expert.
8. Fees – agree a reporting
structure
It appears that many experts – regardless of their profession
– have not helped themselves by what might most generously
be described as aggressive billing practices. There are many stories
of papers being sent for a quick preliminary review on a; “Do
you think you can help?” basis and being returned with a terse,
negative response plus a request for payment of a substantial “review
of papers” fee account.
On other occasions experts have substantially
exceeded budget and the first that any client or advisor knows of
this is when a much larger than expected fee account arrives in
the post.
Agree a budget with your expert and insist
on fortnightly or some other form of regular reporting of costs
together with details of work done. Make it clear that if there
are likely to be problems in achieving budget then you need to be
told as soon as they are identified together with reasons why the
budget is threatened.
9. Understand your expert’s
report
You should be able to understand and follow any expert report. If
it is not clear to you what approach is being adopted or where various
assumptions or numbers have come from then it will most likely be
equally indecipherable to a judge or arbitrator.
Be prepared to challenge the approach used
and offer alternatives – if nothing else this process will
provide you with some insight into how capable your expert is of
explaining and defending a position in a clear helpful manner or
how reasonable the expert is in terms of accepting alternative approaches.
Many barristers that I have worked with have
focussed almost exclusively upon testing the particular words that
I have used – the bigger picture relating to the actual approach
used has often not been considered at all.
10. Find an expert who can
use the telephone
By this I don’t mean to imply that most experts have graduated
from the Luddite school of technology;
rather, you should ensure that your expert either has or knows that
you require a commercial approach to work. If there is a problem
– you need to know about it as soon as possible, not read
it at the end of a 200 page report that has cost the better part
of the damages being claimed.
I hope that the points I have set out above
will be helpful. Always bear in mind that it is amazing how many
straight forward matters such as; “How much ?” and “Call
me if there is a problem” seem to go out of the window when
dealing with experts.
Paul D Smethurst is head of forensic
and investigation services at Begbies Traynor’s London office.
He has worked as a forensic accountant for the past 14 years in
both the UK and in North America. He has been involved in nearly
all aspects of this work. The views expressed in this article are
his own.
Email : paul.smethurst@begbies-traynor.com
Tel. 0207 242 6939
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