Lawyers Rely on Expert Witnesses -- but the Savviest Take an Extra Step: They Engage Experts Early to Consult on the Case, Instead of Just Testifying
Early Participation by "Consulting Experts" Ups the Success Rate -- They Might Not Testify at All, but Instead Identify the Most Promising Cases, Improve Preparation and Challenge Opposition Experts, Says Marks Paneth & Shron Authority on Litigation Accounting Services
(firmenpresse) - NEW YORK, NY -- (Marketwire) -- 01/10/12 -- Lawyers rely on expert witnesses in court. But the savviest go one step further -- they engage experts at the outset to help develop the case and guide the strategy. Some of these "consulting experts" may not testify at all.
A subject matter expert can help guide the law firm and the litigation team -- identifying the cases that are most likely to succeed in court, guiding the case preparation, preparing Daubert challenges to opposition experts, and sitting in at trial to help develop follow-up questions for witnesses.
"Experts are not just for testifying anymore," says an authority on litigation support services for litigators.
"In most cases, a law firm will bring in an expert witness near the end of the litigation process to report and testify," says a director in the Litigation and Corporate Financial Advisory Services Group at New York accounting firm "But that's not the most cost-effective way to use an expert. Instead, an expert can improve the firm's overall success rate by identifying the cases that are likely to succeed, so the firm can decide where to invest its resources. Once the case goes forward, the expert can help the litigation team prepare it so the chances of success go even higher.
"The consulting expert can make a huge difference between losing and winning a case," Dr. May says.
Dr. May is available for interviews and can author a bylined article about the value of the consulting expert. He can discuss the expert's role and the phases of litigation where the expert can make a difference, including:
"The consulting expert can help the litigation team and the firm's management determine the odds of winning the case, so that they can decide whether it's worth the investment of time and resources. They might decide instead that the costs aren't justified and they should not pursue the case or, if on the defense, should settle it," Dr. May explains.
"The consulting expert can inform the development of strategy, guiding the litigation team toward winning arguments and away from weak ones."
"The consulting expert can work with the litigation team to determine what information should be requested and what is most critical to the success of the case," Dr. May explains.
"The work of the consulting expert is considered attorney work product and thus not discoverable under attorney-client privilege. This allows attorneys to test many different damage theories without fear that the wrong analysis will be revealed to the other party," Dr. May explains.
"As a non-testifying expert, the consulting expert is able to suggest flexible and contingent fee arrangements. If the case is lost, this step can significantly reduce the risk of high litigation costs."
"The consulting expert might be able to identify a quick way to show that the case should be quickly dismissed, for example due to a flaw in the way damages are calculated."
"The consulting expert can help show weaknesses in the case before the mediator that will bring about a quick settlement."
"The consulting expert allows full flexibility -- with little or no risk of opposition discovery -- to test alternative theories of damages, and effectively rebut the opposition's experts."
"The consulting expert should prepare questions and in most cases sit in on the deposition in order to help with follow-up questions. This is critical because even an attorney prepared with the right initial questions may need assistance with follow-up questions that would help discredit an opposing expert at the deposition."
"According to a recent study by PricewaterhouseCoopers, in 2010 more than 50 percent of financial experts were excluded in whole or in part on Daubert motions. The consulting expert should play a critical role in the Daubert process by showing the opposing expert is unqualified or is using unscientific methods to reach his or her conclusions."
"The consulting expert should play a significant role in preparing for trial and even sit in at the trial to help prepare follow-up questions to witnesses."
"While it can be costly to engage an expert so early in the process, the cost is more than justified by the expert's impact on win rate and on the quality of the case that is presented," Dr. May says. "The consulting expert can be such a powerful factor and can make such a difference in the case that you may intentionally never want them to testify."
Marks Paneth & Shron LLP is an accounting firm with nearly 475 people, of whom approximately 60 are partners and principals. The firm provides businesses with a full range of auditing, accounting, tax, consulting, bankruptcy and restructuring services as well as litigation and corporate financial advisory services to domestic and international clients. The firm also specializes in providing tax advisory and consulting for high-net-worth individuals and their families, as well as a wide range of services for international, real estate, media, entertainment, nonprofit, professional and financial services and energy clients. The firm has a strong track record supporting emerging growth companies, entrepreneurs, business owners and investors as they navigate the business life cycle.
The firm's subsidiary, Tailored Technologies, LLC, provides information technology consulting services. In addition, its membership in Morison International, a leading international association for independent business advisers, financial consulting and accounting firms, facilitates service delivery to clients throughout the United States and around the world. Marks Paneth & Shron LLP, whose origins date back to 1907, is the 30th largest firm in the nation and the 13th largest in the New York area. In addition, readers of the New York Law Journal rank MP&S as one of the area's top forensic accounting firms.
Its headquarters are in Manhattan. Additional offices are in Westchester, Long Island and the Cayman Islands. For more information, please visit .
Donald M. May, Ph.D., is a Director in the Litigation and Corporate Financial Advisory Services Group at Marks Paneth & Shron LLP and a former professor at MIT's Sloan School of Management. Dr. May has prepared expert reports and expert witness testimony related to business valuation, hedge fund valuation, lost profits, lost enterprise value, time-series forecast models, asset and investment portfolio valuation and statistical forecasting models and methodologies. MP&S's litigation support practice is consistently ranked among the top-three practices by readers of the New York Law Journal.
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Datum: 10.01.2012 - 14:30 Uhr
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