What Questions Should You Ask Your Financial Expert?

Author: Chris Young, PhD

Over the past five years, members of the Red Maple Economics (RME) team have been engaged in over two-hundred litigated cases, some of which we were hired by defendant counsel and some by the plaintiff counsel. We have been to state and federal trials, AAA arbitration, Finra arbitration, various mediations and we have been appointed by judges at the state level. What becomes clear from these engagements is that we can quickly identify a very experienced attorney, as well as those who are just out of school with a few years of experience, and also those attorneys who perhaps are in the wrong line of work. Although we enjoy working with experienced attorneys and getting involved in many of their very complicated cases, we equally enjoy working with the small legal team from a startup law firm where the experience is not as great and where legal counsel is learning as they go.

Many alpha-types do not like asking questions that perhaps show their vulnerabilities or what may seem to be weaknesses and so they put on a shroud of false professionalism, trying their dandiest to show that they know all things lawyerly. It is my opinion based on our experiences that for the younger attorney this can hurt them gravely – possibly ruining the case at best, and harming their reputation at the worst.

As a way of example, in almost every commercial case we are engaged and where the attorney is a seasoned litigator, we are questioned on the discount rate methodology, followed by lengthy discussions. However, when engaged by the less seasoned attorney we are almost never asked about such data included in our reports. It took me a while to understand why this is the case. At first, I was under the impression it was a generational thing – but over time I realized that many younger attorneys do not understand these important financial variables and so may feel odd or too proud to ask for help. This is not just with lawyers but I imagine across all industries. I remember in 2012 when the first attorney said to me, your report needs to meet the Federal Rules of Evidence 702 – then went on to ask me if it does. Yikes! I was exposed. What became apparent to me was how the attorney responded when I asked him for help. I said, “Excuse me, Counsel, can you explain for me the Federal Rules.” Not only did this wonderful attorney explain the Federal Rules but also took me under his wing, and explained many complexities of the legal system that I was unaware of. I have found this strategy to work best in almost all cases.

So – my first piece of advice to any hiring attorney is to ask questions and to ask many of them, until you get an answer that you understand. In the past, I remember having whiteboard sessions with attorneys where my team and I explained concepts such as Net Present Value, Present Value, Future Value, Discounted Cash Flows, etc… Considering these are fundamental concepts embedded in lost profits and valuation calculations, it was important for me to teach these concepts to the attorney. It was also important for the attorney to understand this information so that they can ask the proper questions in cross-examination.

My second piece of advice is to ask about the services that you provide. For instance, most recently I was working with a young litigator who wanted Red Maple to prepare an economic damages report. We were happy to oblige and we prepared the report on time and on budget. However, our hiring attorney was not expecting a rebuttal report from her adversary, and so was not certain of what to ask of us. When the rebuttal arrived, and after our review, we knew we had to provide some form of rebuttal for the trier-of-fact, and the cost to perform this task would be considerable considering the complexity of the case. What also became noticeable is that the young litigator needed our assistance in drawing up deposition and trial questions of the adversary’s expert. It also became apparent that the young attorney was a very talented litigator and was masterful of his questions – but just needed a little additional information and understanding of the financial matters. Had the litigator asked us for our advice, we would've been able to lay out the entire process for him, and help him understand what may be expected of him, and us in the future.

My last piece of advice is to ask your expert for a sample of their redacted reports where they represented a plaintiff and prepared a report, and where they represented the defendant and also prepared a report. This exercise is vital for the litigator’s comfort with their expert. The litigator will need to make sure that their expert does not play favorites – taking the position of the defendant when hired by them, or taking the position of the plaintiff when hired by them. Along with this piece of advice is to also ask, and then check on successful Daubert or Frye motions where a piece or an entire report or testimony of the expert is excluded.

It was our intention here to motivate the hiring attorney to ask questions – to solicit our advice so that we can help guide a young litigator to success. If you have any questions pertaining to the above issues, or if you have a case you would like to discuss, please feel to give me a call at your convenience.
Christopher Young, 347-522-0480 or chris@redmapleeconomics.com