Most litigation proceedings require a written report from the financial expert to support the opinions provided to the court. Should the report strive for elegance or utility? Why not both — and more?
It is not necessary for your expert to be Charles Dickens or Tom Clancy, but there are certain results the attorney should expect of a report from his or her expert. The attorney can assist the expert in reaching those results without “highjacking” the expert’s report.
Certain elements should be included in almost every financial expert litigation report. Some of these elements are requirements from the Federal Rules of Evidence, state rules or rules of the court in which the proceeding resides. Others are elements which make logical sense and assist and inform the users of the report (including the attorney and client by whom the expert is engaged, as well as the opposing side and the trier of fact).
The elements include:
The Scope and Purpose of the Engagement
Obviously a report will not be of much value unless it tells the reader its purpose and scope. This section does not have to be a long narrative, but can be short and to the point. For example it might read as follows:
“Mr. A has been retained by XYZ Corp. (XYZ) to render opinions regarding damages incurred by XYZ as a result of the alleged interference by Bully Corp in the sales of XYZ product.”
The Qualifications of the Expert
Most courts require this be given, but even if they do not it is an element which should be included nevertheless. It provides the opposing side as well as the trier of fact information to tell them why this particular expert is qualified to put forth the opinions he or she is submitting to the court. To be most effective the qualifications section should be in a narrative form and be concise. It should start by indicating more detail is included as an exhibit. For example:
“Attached to this report as Exhibit A is my curriculum vitae as well as a partial list of lectures, speeches, articles, books, etc. delivered or written by me, primarily in the area of business valuation and forensic accounting.”
From there the narrative can continue to explain the background and experience of the expert in the areas pertinent to the opinions he or she is giving in the case at hand. The curriculum vitae will add any detail the court or opposing side might need in assessing the expert’s qualifications.
The Sources of Information
The report should indicate the documents and other sources of information the expert relied on in forming his or her opinions. It should also indicate what interviews were conducted and with whom they were conducted. It is preferred to have the body of the report indicate the documents primarily relied upon, but there should also be an Exhibit which details all of the sources of information “considered” by the expert. It is best to list all information received and utilized by the expert whether or not directly relied on in forming an opinion. This is why the information given should be listed as “considered” to avoid any confusion.
A Description of the Litigation Matter
The report should include a brief description of the dispute and the circumstances surrounding the litigation. This helps to frame the issues so there is context to the reader of the report regarding the opinions arrived at by the expert. The description should be detailed enough to provide the context needed to the reader.
The Expert’s Opinions
The report should list each opinion given by the expert in a summary format first. After all the opinions are stated they should be followed by a discussion of each opinion which provides the basis for the expert concluding as he or she has done. The discussion of the opinions should be as short or as long as needed to allow the reader to clearly understand what the opinion means and the basis for the expert concluding as he or she has.
A Reservation of Right
In order to protect the expert and the client regarding the status of the report as filed, it is suggested to include a “reservation of right” similar to the following:
“This report is based on information available as of the date of this report. I reserve the right to supplement and/or amend our report should additional information become available. We also reserve the right to supplement and/or amend our report with charts, graphs, and other visual aids such as PowerPoint to assist in testimony.”
The Compensation Provided
The rates and compensation the expert is being paid should be disclosed in the report.
If the expert follows these major areas in developing a report, it will provide the attorney with a coherent product that will assist the attorney in arguing his or her case.