5 Tips to Help Get the Most From Your Expert Witness

Guest Post by Expert Geoff Winkler 

This week’s post builds upon a recent presentation given by Jennifer Stout, President/Chief Executive Officer of Bates Group, and David Birnbaum, Managing Director of Business Development and Strategy, at the annual Independent Broker Dealer Consortium conference, where they discussed winning strategies to maximize your impact from expert witnesses.

Below are five points and some real-life case examples we’ve compiled to help illustrate each strategy.

1.  Engage expert consulting at the pre-litigation phase or at the inception of the case to perform an account analysis and determine case exposure. Once case exposure is established, both counsel and client will be in a better position to agree upon case strategy, i.e. whether to try, mediate or settle the case.

Example: Bates routinely conducts account analyses to determine case exposure for small and large cases.  In a more complex recent case, Bates Group was retained as an independent third-party to analyze real estate investment trust (REIT) transactions and asked to determine whether the transactions which occurred during a five-year period met the suitability guidelines required by the prospectus, the individual states and the internal guidelines of the transacting institution. Bates was hired at the inception of the project and was instrumental in outlining the overall strategy and individual methodology in order to review nearly 200,000 transactions and 26,000 possible suitability guidelines in a way that was agreeable to both the firm and regulator.

2.  Your expert consulting and witnesses are often your best resource to help you identify and anticipate potential issues in your case that may be raised by the opposing party.

Example: Bates was hired to perform an internal investigation of a financial advisor to determine if the advisor had used any of his clients’ funds for his own personal use. Bates consultants and experts worked closely with the client to help identify and anticipate any issues that could arise as part of the termination of the employee and any potential litigation that could ensue if fraud had occurred. The initial scope of the investigation was ultimately expanded to include other accounts, which were found to have been similarly impacted by the fraud, but which had not been previously identified by the client.

3. In addition to identifying potential issues in your case, your consulting and/or testifying expert can also help assess the overall findings to help support and establish the next steps of your case.

Example: Our team of Internal and Regulatory Investigations consulting experts was retained by a global financial institution to perform a firm-wide analysis of its book of business involving Unit Investment Trusts (UITs). We summarized over 3 million lines of data into succinct, customized reports that provided the legal and compliance team with information needed to identify the extent of the potentially egregious activity related to those securities. Using our IT team and senior analysts (who are highly trained in working with databases and spreadsheets), we created a process that provided the highest level of integrity while decreasing the overall cost to the client. In addition to providing numerical results, we engaged one of our industry experts to help guide counsel through the “big picture” process. A recommended course of action was provided based on the expert's opinion on standard industry practice, regulatory precedence, suitability and trading behavior. We played an instrumental part in helping our client navigate a very complex review that carried with it a high degree of exposure by arming them with our data findings and market knowledge.

4.  Once potential issues have been identified in your case, your expert consulting firm can also create hypotheticals and perform additional analyses as needed, which can be used for negotiation and settlement purposes.

Bates was hired by a large financial institution to help establish the proper damages figure for an upcoming mediation. Bates used a tax hypothetical combined with a Monte Carlo analysis to establish the damages suffered by the claimant, which the claimant agreed to take in settlement after rounding up to the nearest thousand dollar increment.

5.  Finally, your expert can assist you in presenting the final results to your client, arbitrators or the court system by using the assortment of tools available to them.

Bates was retained by a large financial institution to perform forensic accounting for a specific client and his related entities who were accused of being part of a Ponzi scheme. Using some of the most cutting-edge technology available, Bates was able to simplify the complex issues involved in order to accessibly show in a demonstrative the ultimate ownership structure and the flow of funds between accounts.

About Bates Group LLC

Voted a 2015 & 2016 Best Securities Litigation Consulting Firm by readers of the New York Law Journal, Bates Group is the nation's preeminent financial services consulting firm, providing end-to-end solutions on legal and compliance matters for financial services firms and their counsel. With a roster of over 100 financial industry and regulatory experts, Bates offers services in litigation consultation and testimony, regulatory and internal investigation matters, compliance solutions, forensic accounting, and damages consulting. Bates also provides RegTelligence®, the first comprehensive database of regulatory enforcement actions. With three decades of experience working with leading law firms, financial services companies, and regulatory bodies, Bates Group supports you every step of the way.