Porter: Expert ‘disasters’ I have seen (and how to avoid them)

“Most lawyers will not take on your analysis directly,” John Porter (Baker Botts LLP, Houston) told VRT attendees in California last week. “Instead, they will nibble around the edges to find some ‘gotchyas’ to impeach your credibility.”  And just how will they gnaw at your testimony? Porter, one of the most experienced trial and appellate attorneys in the valuation arena, lists the ways:

• Prior opinions. If what you intend to say in this case differs from prior testimony or published articles, be prepared to explain your current stance. “In this day of larger valuation firms,” Porter said, “you should also search out prior testimony or articles by anyone in the firm.”
• Incomplete references.  Porter recently reviewed an appraiser’s report that excerpted a portion of the companion study to The FMV Restricted Stock Study, without providing its full context. “I was able to cross-examine him and say you ‘cherry-picked’ the companion guide, which caused you to overstate the discount,” Porter said. So if you’re going to cite authoritative materials, “make sure nothing can come back to bite you.”
• The uninformed testifier. If junior colleagues performed the “spade work,” make sure the senior appraiser (who ultimately signs off on the report), becomes “intimately familiar” with its content. Porter just attended a deposition in which the senior appraiser kept looking to his junior associate for help answering questions, “which made him look like he needed a lifeline.”
• Friendly fire. When the client is relying on another expert in the case, the two should stay apart until they’ve each filed a report—but then they should read and discuss the other’s work. “Serious damage could be done by one expert simply agreeing to a seemingly unimportant statement,” Porter said, which could unintentionally impeach the other expert.

Porter also recommended that appraisers read (and re-read) Rule 143(g) of the U.S. Tax Court, which sets forth the requirements of an appraisal report for admissibility as the entire direct testimony of the expert witness. Given its importance in any appraiser’s reference library, we’ve made the entire Rule 43 (T.C.R) available as a free download: click here.