It may be detrimental to an expert witness's credibility if even the appearance of a lack of independence exists. In today's legal environment, discrediting an expert based on his or her relationship with counsel, the client or the judge is common. Let's examine how to identify an expert's independence.
Standard Procedures To Identify Independence
Consider the following four procedures to verify your expert's independence:
- Ask the expert to contact all members of his or her firm to make certain that no member has potentially problematic relationships with any party involved in the case. These relationships may include:
- Financial, such as partners in other businesses,
- Family, either directly or by law, and
- Any close personal relationships.
- Avoid billing relationships that are not your expert's standard practice. These may include premium billing rates or fixed-fee retainers regardless of actual time spent.
- Identify previous services provided to any party in interest.
- Keep in mind that if your expert typically represents only one side of an issue, he or she may lack independence. For instance, an expert who works only for plaintiffs or only for spouses employed outside the home could present the appearance of a lack of independence.
Naturally, the larger the firm, the more difficult the task of proving independence. And in smaller markets independence just may not be possible. But procedures should be in place to identify potential issues.
Even if the expert has determined he or she has no conflict of interest, the expert should disclose to you all relationships, past and present, with all parties that might appear to affect independence.
Turn an Expert Into a Consultant
What if your potential expert witness has great credentials but also independence issues? Consider using him or her as a financial consultant and finding another expert witness.
Using a financial consultant in addition to testifying experts gives you many advantages. As a consultant, the financial professional is free to act as an advocate for you and your client and to work actively toward a winning solution for your side. As an advocate, the consultant can pursue options that will provide the best results for your client and determine a strategy for achieving those results. With a financial advocate on the litigation team, the outcome of the case is more likely to provide positive results.
Can Your Expert Witness Pass the Independence Test?
Ultimately, you must decide whether a conflict of interest or an independence issue exists that may affect the ability to use your expert in court. A little protection up front can help you avoid serious repercussions down the road.
Michael J. Garibaldi, CPA, ABV, CFF, CGMA, has a strong background providing efficient and affordable solutions to the many complex issues facing the legal profession today. A Certified Public Accountant licensed by the State of New York, Mr. Garibaldi is Accredited in Business Valuation (ABV), and Certified in Financial Forensics (CFF) by the American Institute of Certified Public Accountants (AICPA). He is recognized as a Chartered Global Management Accountant by the Association of International Certified Professional Accountants.
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