In many cases, experts are a necessary, if not invaluable asset to have on your team. Often, they are not only needed to provide the necessary financial calculations (e.g. business valuation, calculating true income/cash flow, lifestyle analyses, tax calculations, alimony and child support scenarios, etc.), they can often help with the negotiation of issues relating to the calculations that they prepared. Also, many clients have great trust in their experts so they are helpful in reassuring them that the deal is fair from their perspective or to explain why certain concessions may be worthy of consideration.
On the other hand, there are certain experts out there that usurp their role and act like they are the attorney, whether because that is their nature or because the attorney that they are working with has deferred the matter to the expert. Using a football metaphor, the attorney should be the quarterback of the team, not the expert.
In one recent case, the adverse expert started by trying to value entities not owned by the parties; started preparing a lifestyle analysis when the parties were of retirement age; delayed doing a site visit on the business for no apparent reason and when he did, seemingly knew nothing about the case; kept claiming that he was waiting for documents – but couldn’t tell which documents he needed and there were no documents that had been requested which hadn’t been provided; delayed in providing a report and then when just schedules were agreed to be exchanged, were wrong, grossly deficient, and far less than what was provided by our experts; came to two settlement conferences and became the point person for the negotiations despite clearly/admittedly not knowing the law and then creating issues that simply did not exist (including saying that something which was not an asset, was an asset.) It seem clear that that expert had made promises to the client at the beginning of the case that he could not keep at the end of it. In fact, it appeared as though he pre-judged the matter and just assumed there should be more based upon the income, without looking at the spending or the assets in any depth. Curiously, he kept saying that money “had to be missing” based upon one party’s income, but never bothered to do the forensics to prove or disprove his theory (though if he looked at the taxes paid and spending during the relevant period including weddings for two kids and educational costs, it was clear that no money was missing.)
At the mediation, the expert was doing a lot of the talking and negotiating while the lawyers sat largely silent. The expert continued to press an agenda not based in reality. The outcome of this was that the parties substantial needless legal and expert fees, and have delayed if not driven the parties further from settlement.
At a different matter in the last year or two, the experts had a several million dollar math error in their report. There were also other issues/errors that the mediator (another forensic accountant) saw with their report. Rather than trying to close the gap, the expert amazingly said, even if I fix the errors, I will change something else to get back to the same number. It took extricating the experts from the equation to get the case settled.
Again, while experts are a valuable and necessary part of the team, neither the lawyer nor the client should let them run the show. They are not the quarterback.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org. Connect with Eric: