Expert Economists Julian Delamer and Alan Rozenberg authored a chapter in the Financier Worldwide Ebook, “Managing and Resolving Commercial Disputes.” The chapter discusses ways to maximise the efficiency and usefulness of party-appointed quantum experts, addressing the issue from three perspectives: the parties and their counsel, the experts, and the court or tribunal.
Providing experts with precise and timely instructions and information
Listed below are some of the main areas where the instructing parties and counsel could focus on to ensure an efficient use of party-appointed quantum experts.
First, instruct experts early in the process. The timing of engagement can be essential to the value that can be extracted from quantum experts. In cases where merits issues are closely related to quantum, quantum experts can provide early insights that may affect the approach taken by parties in their legal pleadings. Retaining quantum experts early in the process, even before submitting a notice of dispute, can help shape the legal strategy of a case and avoid last-minute shifts in approach.
Second, provide the experts with relevant information in a timely and organised manner. While experts may be able to assist in identifying what information is desired, experts are not aware of all the potentially relevant information that the party may have access to. In such cases, it is important to have fluid communication between the relevant individuals on the client’s end and the quantum experts (and their team), such that the relevant information can be identified and exchanged.
Depending on the number of documents and information available, it may be appropriate to compile all the information at once to reduce the number of iterations (and thus improve efficiency), but often this is not practicable. When this is not possible, it is important to release information on a rolling basis as and when it is made available.
For an efficient review of documents by quantum experts, it is useful to classify information by category, e.g., financial information, industry or market analyses, regulation, and correspondence. It is also desirable that the information is provided in an electronic and searchable format. Ideally, experts should be provided with access to a full and complete record of relevant documents, in particular if such documents may be subject to disclosure by the court or tribunal.
Third, when appropriate (and permitted), experts should be granted access to the relevant fact witnesses. Fact witnesses familiar with relevant events and evidence can help experts better understand the facts and context surrounding the dispute. Experts with better understanding of the facts and context can achieve a more accurate quantum analysis. Fact witnesses may also assist experts in understanding relevant documents and their roles in the events surrounding the dispute, such as reasons or uses of certain contemporaneous documents produced by the parties.
Fourth, provide experts with clarity as to the applicable law, as this can have ramifications that may impact the quantum approach. For example, the applicable law can provide guidelines as to the standard of value or the date of valuation applicable to the case at hand, both of which in turn significantly affect the quantum experts’ analysis (e.g., whether a fair market valuation or a sunk costs approach should be used, or if the date of breach or more recent date should be used for valuation purposes).
Fifth, understand the limitations of the quantum experts’ expertise. Asking a quantum expert to opine on issues beyond their scope of expertise can undermine the experts’ credibility. In such situations, it is better to either rely exclusively on contemporary evidence on the subject, or to engage an additional expert who can provide the required input that is beyond the quantum experts’ expertise (e.g., technical or engineering expertise to determine construction timing and costs).
Finally, and above all, it is essential that parties understand and respect the independent nature of the experts’ work. If experts yield to pressures to obtain certain predetermined results they may adopt extreme assumptions that erode their overall credibility. Extreme assumptions are not only unlikely to be accepted by a court or tribunal but can also result in the court or tribunal doubting the independence of the experts and putting less weight on (or discarding) the experts’ testimony.
This chapter of the Ebook was originally published by Financier Worldwide on their website (subscription required) and in PDF format here. The views expressed are those of the authors only and do not necessarily represent the views of Compass Lexecon, its management, its subsidiaries, its affiliates, its employees, or clients.