The Opposing Party is Coming Fully Prepared to Trial
Q. Does it make sense to retain a competent Expert Witness in a securities, investment advisory, insurance or financial case?
A. A Registered Representative (Financial Adviser) or Insurance Agent can testify they followed the firm's Written Supervisory Procedures (WSP) to the letter, but they have assets to protect. The "growth oriented" claimant can testify they suffered losses during a market meltdown, but they too, have financial assets to protect and/or gain. Q. Does a seasoned attorney require a financial expert for every case?
A. Not necessarily and depending on the experience of counsel, they may only require the services of an expert witness for complex cases to review the discovery and testimony. Counsel with limited securities, insurance and financial experience typically requires additional assistance in analyzing the case and preparing for hearing and particularly with settlement issues and case assessment. The services of a competent expert witness can be equally valuable for both sides.
Q. Why not simply utilize the services of Chief Compliance Officer or Branch Manager to serve as the expert witness in the case? A. These individuals may be qualified, but their testimony is often times viewed as biased by FINRA and AAA Arbitration panels, and these "expert employees", frequently tend to side with the "house" thus providing an unbiased opinion, which can be problematic. Brokerage firms and Insurance Companies may think they are saving money by not retaining an expert witness, but this has proven to be a costly mistake in many cases.
Q. If the opposing side retains an expert witness, what message are they sending?
A. The message is crystal clear. The opposing party is coming fully prepared with expert testimony and documentation that could potentially put your side at a distinct disadvantage. However, by retaining a knowledgeable Expert Witness on your team, the probability of at least neutralizing conflicting and damaging opinions of the other side's expert witness is improved. Retaining an expert witness could provide to be the added edge that counsel may need to prevail on the case.
Q. Is it advisable to retain a professional Expert Witness who is no longer active in their chosen field?
A. For certain fields such as medicine it may be safe to retain a retired M.D. to examine x-rays and render opinions, but in rapidly changing industry such as the financial services and technology industry, there are distinct advantages to retaining an individual or firm that is "in the game" and is well versed on the current rules and regulations.
An unbiased and impartial Expert Witness will render opinions based upon the facts of the case and not subjective opinions and theoretical theories. An ethical Expert Witness will not be influenced by the retaining firm and they will base their decisions and opinions in the same impartial manner in which an unbiased Arbitrator would view the case, and that is based on the facts.
Bob Lawson is the President of Barrington Capital Management, Inc. a Registered Investment advisory firm, a FINRA Arbitrator, a Securities Expert Witness & Litigation Consultant and a Qualified Neutral under Minnesota Rule 114 (Civil Facilitative/Adjudicative).
