Myths about expert witness

The role of an expert in any dispute resolution proceeding is to publish a report based on facts and give an independent opinion. Here are top three interesting myths associated with this:

Myth No.1 : Expert witness is merely a hired gun

It is often believed that the expert appointed by either party in a dispute is merely a ‘condottiere' or a ‘hired gun'. In reality, in case of a party-nominated expert witness, a letter of instruction is given by the arbitral tribunal laying down instructions for expert witness/es, if any that are appointed by the parties. This enables independence of the expert witness.

Myth No. 2:Expert witness cannot fix bad facts

Expert witness is not a demi-god and cannot salvage bad facts. Expert witness needs to closely work with the legal team and prepare expert report based on facts provided by the legal team.

Myth No. 3:Damages expert need not know the technical side of a dispute

If the damages expert is unaware of the technicalities of business affecting the dispute, how would he determine the quantum of damage? The damages expert needs to be briefed about the technical aspects of business.

Reading between the lines

The annual report is no longer viewed as the document of record that provides the cornerstone for all valuation work.

The quality of disclosure has improved in recent years. However there are still some areas in which investment professionals would like to see even more.

For example, the most commonly cited opportunity to improve reporting lies in the quality of the segment disclosure. Investment professionals are looking for a ‘sensible' split of business, combined with sufficiently granular data for each segment — data that covers the income statement, balance sheet, cash flow and critical key performance indicators.

Investment professionals look for coherent messaging between the narrative section of the annual report and the audited financial statements. They also expect a consistent message across all media channels.

There is a desire for management to make visible any material cost-drivers and the key sources of revenue. Investment professionals are keen to monitor the trends of these factors over time, preferably with historical data that covers an operating cycle.

E-discovery in dispute resolution

Technological advancements and growing volume of information have made it more challenging for organisations to manage information effectively. Communication, large or small, is being sent so often and in such large numbers that to assess it and intelligently analyse it is a herculean task.

Typically, the request from legal counsel is in context of disputes where legal counsel may need the information to support analysis and evidence. Ineffective management of information can lead to heavy penalties in litigation, arbitration or any other dispute resolution mechanisms.

From a disputes perspective, electronic discovery or e-discovery has the potential to lay down a good foundation that will facilitate expeditious dispute resolution process.

E-discovery refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it in arbitration, litigation or a regulatory investigation. E-discovery can be carried out offline on a particular computer or it can be done on a network. The advantage of examining electronic evidence, in addition to the ease of reference, is the audit trail it leaves behind, advanced searches functionality and the ability to retrieve deleted or tampered evidence.

Key benefits of e-discovery in dispute resolution can be summarised as:

Increasingly, litigation and regulatory matters span jurisdictions, subjecting companies to potentially conflicting regulations.

Keeping track of competing regulations at local and global levels is a challenge;

E-discovery helps organisations manage their information sufficiently to meet the demands of a variety of regulations across multiple jurisdictions.

As a result of e-discovery, timely capturing of information contained in contracts, invoices of the company and from third-party vendors, staff data, including time-sheets and various other legal documents, can facilitate analysis and calculation of damages claimed.

COMMENT NOW