Effective Use Of Experts In ADR – Tips And Traps From The Other Side Of The Table
Effective Use of Experts in ADR – Tips and Traps from the Other Side of the Table
By Bailey Rivard, CPA, CA·IFA, CBV, CFE, CFF
In complex technical matters, a subject-matter expert is often retained to assist counsel and the trier of fact in understanding the issues outside the law. This expertise can help translate complex information, so it tells a story relevant to the issues in dispute. To make the most effective use of experts in ADR proceedings, counsel should consider key tips and traps to avoid from the perspective of an expert.
When an arbitration involves complex technical issues, often an expert will be engaged to assist in translating the financial, medical, or other information so that it tells a story relevant to the issue in dispute. The role of the expert may be critical when the case hinges on understanding issues unrelated to the law, and when counsel or the trier of fact are unable to apply the law without this specific expertise. By considering the following few key areas, counsel may make more effective use of expertise in ADR proceedings.
- Engage the expert early – an expert may assist in identifying heads of damages, assessing the quality of various claims, and identifying information that is critical to understanding the legal issues at an early stage. Often this is done too late or not at all and is a missed opportunity.
- Assess counsel’s technical acumen – an expert may be critical in the disclosure process when counsel is less knowledgeable about the technical aspects of a case. An upfront review of existing disclosure may assist counsel in preparing for questioning or examinations and other requests for specific information required to complete the expert reports.
- Let the other professionals talk – if the parties are in settlement negotiations or mediation, there may be an opportunity for the expert to meet with the parties’ accountants, advisors, or other key representatives to understand complex issues related to a business. Including all parties to the dispute may provide much needed transparency that may facilitate settlement.
- Consider using joint experts – if parties are cooperating, this can be helpful to reduce the risk of a “battle of the experts”. Ensure that both parties have agreed in writing to the scope of the retainer, access to information, and expectations around communications. Joint experts require direction from both clients and this can be problematic when a conflict arises. It is helpful to have an arbitrator or other neutral party named where a “tie-breaker” decision needs to be made regarding expert instructions.
- Assimilate differing expert opinions – a critique or rebuttal report should provide a discussion of differences in methodology, assumptions, and information relied upon. If not, counsel should request a summary of these differences; the impact on the overall opinion; and the strengths and weaknesses of each position. The experts may be able to meet and reach a consensus in some areas. A careful review beforehand may narrow the issues to be resolved.
- Maximize the use of experts during a hearing – even the most experienced counsel and their experts benefit from comprehensive preparation for any hearing. This ensures that counsel is aware of limitations in the expert’s opinion; the less favourable aspects of the expert’s testimony that may be best addressed during direct examination; and that both counsel and the expert are on the same page with respect to presentation of the testimony. The expert can advise counsel about how they can best “tell the story” and counsel can then ensure the expert stays on track. The expert can also identify the most material weaknesses in the opposing expert report or testimony to focus the cross-examination on areas of difference to strengthen your own expert’s opinion.
Not all matters lend themselves to the level of cooperation contemplated here; however, an integrated approach with technical experts during all phases of the ADR process often results in a more effective use of professional resources.
Bailey Rivard, CPA, CA·IFA, CBV, CFE, CFF is a partner in MNP LLP’s Forensics, Valuations & Litigation Support Services group, based in Calgary. Her practice ranges from business valuations to fraud investigations and risk assessments, with a focus on litigation and other disputes with complex financial issues. Bailey has acted as an expert witness in the Alberta Court of Queen’s Bench, the Supreme Court of British Columbia, private arbitrations and mediations, and settlement negotiations.