What did Picasso’s paintings look like when he was only halfway finished? How did Michelangelo’s “David” look like after the first few chisels? How livable is a house after the frame has been erected, but no interior work has been done?
A valid answer to all of the preceding questions is, “Something different than the final product.” However, for financial experts who provide opinions on economic damages and other litigated matters involving calculated figures, current rules sometimes allow for previous non-submitted, and non-final, drafts of an expert’s report to be considered discoverable evidence.
The review of draft iterations of an expert report is often considered to be a waste of time (and dollars) as such drafts often do not correctly capture all of the relevant information that was synthesized in the final submitted report. Oftentimes, the tactic of reviewing an expert’s draft reports is an attempt by an opposing attorney to discredit the expert or make the expert’s conduct appear improper in some way. Therefore, some attorneys will request that non-final draft iterations of reports be admitted as evidence and scrutinized, distracting the court from the analysis offered in the financial expert’s final, submitted opinion.
This is akin to asking Phil Collins to stop all work on a song that he is still feeling his way through, releasing that song, and then asking him to defend its quality to the public and his fans. Not only is this unfair to Phil, but it is unfair to the music-listening public, who expect a polished, quality product that Phil would be willing to stand by.
In a recent article by Thomas Hilton, MS, CPA/ABV/CFF, ASA, CVA in Financial Valuation and Litigation Expert, a highly-regarded publication in the business valuation and litigation support field, Mr. Hilton discussed that relief for this problem may be on the way. The Committee on Rules of Practice of the Judicial Conference of the United States (Committee) recently proposed amendments to the Federal Rules of Civil Procedure that would shield draft expert reports from discovery. If the proposal makes its way through the necessary channels without any holdups, this relief could come as soon as December 1, 2010.
As part of the community of financial experts, we hope that relief from the proposals highlighted above (which have been backed by the AICPA) comes swiftly. Primarily, we believe that these proposals will force courts to focus on the merits of an expert’s submitted opinions rather than the potentially unfinished and in-process analysis that is present in draft reports.
Need assistance with a litigation matter? Contact our Litigation Advisory Services Group at 440-449-6800.
Topics: Litigation Advisory Services, Cleveland Business Advisors, Akron Business Advisors, Akron Business Consultants