As you can see from our client and assignment lists, Grahall has significant experience providing expert witness testimony. We typically are contacted for one of two key reasons. First, the attorneys we have worked with in the past appreciate our experience and capabilities that allow us to understand the complexities and unique requirements (both prior to and in court) of expert witness testimony. Second, we receive calls from opposing counsel in prior cases who are familiar with our qualifications. Let us walk you through our process starting with the point where we have been approached about a case and we can confirm our team’s availability.
- We look for any potential conflicts. We are vigilant in this regard to ascertain that we have no relationships that may impair our ability to serve as an expert witness. Conflicts may arise at a business level or personally and may be attributable to the expert, his/her colleagues, or even family members. An undiscovered or undisclosed conflict can prove embarrassing and may lead to more serious issues (e.g., damage to your client’s case, loss of professional fees, etc.).
- We decide if we will accept the assignment and if so inform the attorney. At that point the attorney usually inquires about out fees. We fully disclose our fee arrangements including travel time charges, the requirement of an initial retainer fee, our policy concerning expense reimbursements, the frequency of invoices and timing for payments of such invoices. Our policy is to deliver the engagement letter to the client (i.e., plaintiff or defendant depending on which side we have been engaged) outlining the scope of our work, our responsibilities, and the fee arrangements. In many cases, we are being engaged by the attorneys (to ensure confidentiality and attorney-client work product protections), yet will be paid directly by the client (plaintiff or defendant). We obtain sign-off on the engagement letter by both the attorney AND the client in order for all parties to legally acknowledge their responsibilities.
- Once the engagement letter is signed, the client’s attorney provides data. It is essential for us to obtain as much information concerning the case as quickly as possible. The requested information can include copies of the legal filings with the courts, internal emails, memoranda about the case, correspondence with outside parties, and any other written materials that relate to the case or issues supporting it. We schedule interviews with the client as well as with others who may have knowledge or information about the case. Although we sometimes receive more data and/or information as the case moves forward, it is preferable to obtain as much as possible early on. That helps control additional time charges and may even avoid a midstream change in the direction of our analysis and conclusion.
- We perform analysis of the information provided, conduct interviews, and gather needed resources such as surveys and other data. The purpose of this effort is to compile a database of information that we can evaluate for purposes of developing our views concerning the matter that is the subject of the litigation. There is no prescribed way of conducting this analysis. Instead, as experts we review all the pertinent information, obtain independent surveys or other data that is deemed necessary, and perform whatever analyses and calculations the expert thinks are necessary in order to develop the opinion.
- We establish a theory for the case and use this to inform the determination of our opinion. This is merely a high-level concept of how to organize the facts in the case and determine the approach needed based on the legal issues. For example, we will assess whether reasonable compensation is going to play an important role in the determination of the valuation or if it is going to be important to look at the “replacement” person that is a non-owner. Often the case theory will be prescribed by the attorney based on best defense or “offense.” As experts we work with the attorney to understand any tangential case theories so that the most informed perspective can be applied.
- Next we begin discussions with the attorney about where our opinion is heading. In the case of compensation expertise, the attorney will sometimes ask us for preliminary estimates of appropriate compensation figures. Because analysis is still underway, our estimates are usually broadly defined. Before coming to a conclusion, we discuss our analysis and findings with the attorney. Often the attorney will raise other issues that may not have been previously disclosed or may point out other flaws in the analysis based on a misunderstanding or failure to consider pertinent information in the case. In all cases, however, the opinion belongs to the expert and not the attorney. The expert is the individual who must testify to the opinion under oath and therefore must believe that opinion to be correct.
- Next we draft a report that discusses our quantitative and/or qualitative analyses of the data and information we have compiled. and list all the information we used in coming to our opinion. If there are surveys or other information that we reviewed but did not use, we also disclose that and, depending on the rules of the court, the reasons why these sources were disregarded. Once we have determined that we have considered all relevant data and information and have completed our analyses, we prepare our report. It is important to ensure that the report specifies all information and data considered as well as the analyses utilized that serve as the basis for our conclusions. This includes describing all surveys and other supporting third-party information.
We review our preliminary report draft with the attorney and, if possible, with the client. This provides everyone with an understanding of our conclusions and the process and analyses used to support it. It also allows for any other relevant issues, facts, or other information we may have missed or did not appropriately consider in our analysis to be addressed.
- Once the initial draft report is reviewed, we complete a revised draft report. (We use this nomenclature of “draft” throughout our reporting process because it is possible that through review of opposing expert report, depositions, or trial testimony that other, new facts will be uncovered that would alter our opinion.) Before anything else, this revised draft is made subject to rigorous “peer review” by other Grahall professionals. We always include a statement in the report indicating that we reserve the right to amend the report if new facts or information are presented at a later date that we did not have an opportunity to consider fully.
- We submit the revised draft report to our attorney and client. Counsel might make final suggestions that improve clarity or help to enhance a reader’s understanding of technical details. A readable report is everyone’s objective, and it makes sense to provide a report understandable to the ultimate users. Those ultimate users can be judges or a judge and jury. These suggestions are considered and a FINAL draft report is prepared.
As experts we keep a careful record of all communications between ourselves and the attorney, including the substance of those discussions. If challenged at a later date, this careful record-keeping can mitigate any suggestion that our opinion was unduly influenced.
- We deliver the final draft report to our attorney. The attorney will share our final draft with other experts on our side and with opposing counsel. Soon after that, we receive a copy of the opposing counsel’s expert witness This gives us an opportunity to see what the other expert has concluded and the basis and rationale for their position.
- We carefully review the opposing expert’s report and we have the opportunity to comment on their conclusions and analysis. Reviewing opposing expert reports is very helpful in identifying additional information that supports our opinion and provides insight into the kinds of questions counsel should pose to the opposing expert to challenge his/her opinion. Our insights can also help enhance case strategy for our attorney.
- If the attorneys decide to move forward with the case, depositions come next. By reviewing the opposing expert reports, we have an opportunity to identify additional information that may support (or change) our opinion, and also provides insight into the types of questions our attorney should pose to the opposing expert at their deposition.
- Before depositions we draft eight to 10 pages of suggested questions for our counsel to ask of the individuals and even the opposing expert witness during deposition. We prefer to sit in on the opposing expert’s deposition, if that is possible, so we can assist our attorney during the deposition of the opposing expert. Also, before deposition we meet with the attorney who retained us to prepare for deposition and to help the attorney understand how we might answer expected questions.
- Often, we face opposing counsel, who is likely armed with a multitude of questions from his expert and who will work diligently to disqualify our opinion or impeach our credibility.
- Within a few days or weeks after the deposition, as the expert, we carefully read, notate and sign the transcript of our This gives us a chance to correct minor mistakes in the transcript which will eventually be entered into evidence during the trial.
- If the case moves toward to trial, all the prior effort provides us and the attorney with a good understanding of the concept, facts and details of the case. If the trial moves forward, there should be few surprises in store.