By Tom Hagy
Battle metaphors are frequent when talking about litigation and trials. Verbs like kill, shoot, crush, and destroy are not uncommon. Michele G. Miles, both a J.D. and accredited business appraiser, sees a danger in taking the macho metaphors too far, especially when they affect the conduct of a financial expert.
Miles said you need to avoid what she calls “testosterone poisoning,” and urges you to learn the signs.
First, she said during the recording of a Mealey’s Litigation Conference / BVR audio, that you do not want a witness who is going to pick a fight. Instead, she said, you want one who is proud of their process – “so proud that he will be glad to go through it again and again.” This will give counsel an indicator that the expert will exude credibility.
But what are the signs of a testosterone-poisoned witness? Miles said such a character may refer to a place in their office as a “war room” where they store and summarize documents. They may be inclined to place a photo of themselves in their expert report. They tend to come to you with checklists, suggesting rigidity in their process. They may have trademarked some of their terms or processes.
If you want someone to pass Daubert review, she said, you do not want to show “personally developed methods” were used in place of “real world” methods.
Testosterone-engorged experts may also have a tendency to read or interpret case law for the attorney. If case law makes its way into the expert’s report “something is badly broken,” Miles warns. If an expert must discuss a case in his report, he should refer to a treatise written by an authority on the subject, something everyone agrees is authoritative.
A testosterone imbalance also can lead to a decision to have one expert to attack another, something Miles cautions against. “Don’t use your expert as a paid assassin,” she said. “Your witness can’t testify on his own opinion while throwing rocks as someone else’s.” She said to stick to the process and avoid getting into past conflicts.
Not only should an expert not be an assassin, they should not be a “crutch” for an attorney making his way through new subject matter. “Do your learning behind the scenes,” she advises. “Ask dumb questions behind the scenes.”
Miles warned against appearing to be too close to your witnesses. Never take your expert out for “show and tell,” she said. Do not pass notes during hearings, do not take him to depositions, and do not hang out during trial. “Don’t treat them as part of the team,” she said.
“What you want is an expert that, when he leaves, prompts everyone to say ‘and we never even got a chance to thank him,’” she said, recalling romanticized heroes from the Old West.
You can hear more from Michele Miles, who also is former executive director of the Institute for Business Appraisal, plus commercial litigator James Dugan of Willkie Farr & Gallagher and financial expert Steven Schroeder of Schwartz & Associates LLC, on the CD package entitled “Effective Timing & Use of Financial Experts.” For more information, write to me directly at firstname.lastname@example.org.