Skillful, seamless direct examinations are crafted by careful planning and attention to detail. Preparing the direct examination of a business valuation expert requires even more attention to details than most other examinations, as well as some knowledge, if possible, of the audience to whom you are presenting the evidence. How well does the judge comprehend accounting, finance and valuation principles? Where are the weaknesses in the positions being advanced? Upon what areas will your opponent focus the attack? The attorney must consider all of these factors when constructing the expert's examination.
When preparing the direct, consider whether there is any risk associated with your expert's credentials or ability to be accepted as an expert. Has the expert strayed from his or her field of expertise? Such examples may be the business appraiser who offers an opinion on compensation issues; the value of equipment; or even the fair square footage rental rates in a certain community, any or all of which may be outside of that expert's true field of expertise. If the expert is demonstrated to be lacking in the specialized knowledge required to formulate such opinions, you may find your expert's testimony is limited, stricken or excluded.
Consider whether or not the theory of valuation upon which your expert is basing his or her opinion is generally recognized by the valuation community as a valid methodology of determining value. If not, your expert may not survive a Daubert or Free challenge.
By Joy M. Feinberg
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