Warning Signs of a Bad Expert Witness

By Terry Silver
Special to the Legal

In my Nov. 30 blog entry titled "What to Look for in an Expert Witness," I discussed the preferred traits of a successful expert witness, including qualifications, credentials, experience, preparation, use of team approach, having communication skills sufficient to be understood by a judge and jury, and lastly, having a likable enough personality. The above qualifications should also be sought in an expert witness, because when an expert witness does not possess most of them, difficulty in litigation often ensues.

There are some warning signs I would like to highlight to identify a bad expert witness. (In these examples, all the facts are for illustrative purposes only, and any similarity to a particular fact pattern is only by coincidence.)

At the outset, an inaccurate expert report was submitted; specifically, the business valuation conclusion did not adhere to the valuation premises set forth in the report. This resulted in the need to supply an amended valuation report just prior to the date of trial. This in turn resulted in significant erosion in this "expert's" credibility.

Additionally, the expert report contained a scope limitation described as a deemed inadequacy of fee payments to the "expert." The "expert" did not provide any detail regarding the impact that the supposed scope limitation had on the expert report. Consequently, the report conclusions could be deemed questionable, if not completely incredible, due to this unresolved scope limitation.  

During the course of pre-trial activity, this "expert" was not amenable to scheduling changes, and requested exhaustive and unnecessary discovery requests that prolonged the discovery process, adding unnecessary time and fees. In the course of pre-trial negotiations, the "expert" was often combative toward opposing counsel and myself and openly advocated for their client. 

The impact that this unqualified "expert" had on this case was significant.

This "expert" is an anomaly inasmuch as his/her skills and abilities are far below typical. The purpose of my past entry  was to present criteria that counsel should seek in their expert; this entry presents an example of what can occur when the wrong expert is selected. In this highly financially oriented case, the business valuator is a crucial team member and determinative of the level of success or failure. Qualification and experience are essential, but the expert's ability to work within a team are the traits that should be most sought after by counsel.

Terry Silver is a Certified Public Accountant, Certified Valuation Analyst and Certified in Financial Forensics, for Citrin Cooperman, an accounting, tax and business consulting firm in Philadelphia, where he is a partner with more than 33 years of experience as an accountant and auditor. He focuses his practice on business valuation and financial forensic services, expert testimony and matrimonial actions. He can be reached at [email protected] or (215) 545-4800.

Comments

[Kevin J. Conner, MST, CPA]

Terry:

Where was your client's counsel in this process to allow the opposing expert to even have an audience in pre-trial discovery other than directing all questions and issues through the law firm that hired them?