Page 29 - Expert Witness

Discovery includes obtaining third party documents and data, which usually take the form of industry,
competitive, or economic information. If the information obtained is from another client, without that
client’s express consent to use it for litigation, or from a source that will not allow its disclosure, then it
probably cannot be used to support an opinion at the trial.

Economic and financial data are frequently available from computerized databases. To use this infor-
mation effectively, the practitioner needs to understand and validate how the data are input into the da-
tabases, as well as how the people who maintain the databases can manipulate the information. Docu-
ments or information from databases that are collected and support the practitioner’s assumptions, con-
clusions, or opinions need to be properly organized and referenced in working papers. Extraneous mate-
rials that do not affect the assumptions, conclusions, or opinions may be removed, but the removal of
this extraneous information should be discussed with the client or the client’s attorney for any possible
consequences.

Normally, a proper foundation must be established for testimony and documentary evidence submitted
during a trial. Typically, witnesses cannot testify about information told to them by a third party. The au-
thors, recipients, or custodians must authenticate documents submitted as evidence. Otherwise, the tes-
timony or written evidence may be classified as hearsay or may lack a proper foundation and may be ex-
cluded from the trial. However, several exceptions to the hearsay rule may affect a practitioner acting as
an expert witness. Under the Federal Rules of Evidence, an expert witness is allowed wide latitude in
what he or she may rely upon to formulate an opinion. An expert, in forming an opinion, may rely on in-
formation that otherwise would be deemed hearsay if admitted to prove something. Such items include
research and academic literature available in the expert’s field, as well as consultations with other ex-
perts and interviews with parties who have relevant information. The testimony may be based on the ex-
pert’s research, interviews, and conversations.

Another important exception to the hearsay rule relates to business records, which include journals,
ledgers, files, correspondence, financial statements, and other records created or maintained in the nor-
mal course of business. The practitioner expert witness may rely on such records without auditing them.
Of course, if the opposing side shows any inaccuracies or deficiencies in such records during cross-
examination or surrebuttal, the disclosure may have an impact on how the trier of fact weighs the ex-
pert’s opinion.

Overview of Alternative Dispute Resolution

Alternative dispute resolution (ADR) refers to a group of processes and procedures used to settle a dis-
pute outside of litigation. It is common for ADR to be required under the terms of contractual agree-
ments or to be mandated by courts and judges prior to the trial. In addition, many disputing parties prefer
ADR for a variety of reasons. In ADR, formal rules and protocols usually are relaxed, compared with
formal litigation, often reducing the time, effort, and cost to resolve a dispute. Further, many disputing
parties believe that control over the resolution process is greater using ADR.

A practitioner may be engaged by his or her clients to assist with ADR proceedings as either an expert
witness or a consultant. Additionally, depending on the qualifications of the practitioner, he or she may
be engaged by the disputing parties to serve as a neutral decision maker, a special master, a mediator, or
an arbitrator. ADR engagements typically require a specially tailored arrangement letter between the
practitioner and the disputing parties and often preclude ex parte, or one party in the absence of the oth-
er, communications.

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