Expert Witnesses

AuthorNelson A.F. Mixon and Catherine M. Cameron
Litigating without the use of expert witnesses is almost inconceivable in
many areas of the law. This is especially true in the area of business torts
litigation, which almost always involves complicated liability questions and
complex damage calculations. This chapter addresses two principal subjects:
the types of experts likely to be encountered in business torts litigation, and
how to work with, and against, those experts.
To any experienced commercial litigator, much of the material in this
chapter is likely well known. The use of experts in commercial litigation
generally shares much in common with the use of experts in the more
specialized area of business torts. Nevertheless, business torts litigation
presents specialized, and often subtle, concerns that not only impact the
choice of expert witnesses, but also the approach to working with one’s
own experts and against the opposing side’s experts. Fundamentally, this
is because business torts litigation, perhaps more than other forms of com-
mercial litigation, is often focused on deeply human narratives of right and
wrong, rather than simple contract interpretation.
As an initial matter, it is important to answer the question, “What is
an expert witness?” The term “expert witness” is most frequently used to
describe a retained witness who gives opinion testimony under the rubric
of Rule 702 of the Federal Rules of Evidence, or state equivalents. The term
Expert Witnesses
Nelson A.F. Mixon
Catherine M. Cameron
Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 145 8/12/14 10:25 AM
expert witness, however, may also include witnesses who give no opinions
on the facts of a particular case, but who testify about more general mat-
ters that the witness has personally observed and may have expertise upon,
such as standard industry practices. It is unclear that F. R. E. 702, or
state equivalents, governs such witnesses’ testimony, although these wit-
nesses certainly testify on the basis of their expertise, and are frequently
seen in business torts litigation.
The varieties of expert witnesses used in business torts litigation are largely
divided into “liability experts” and “damages experts. In addition, in recent
years, expert witnesses are being used to litigate discovery disputes, even
though these experts will not likely be called at trial, absent spoliation
instructions. This section addresses damages experts rst because they are
present in almost every business torts case. A discussion on the various
types of liability experts follows. This section concludes with a few words
about the use of expert witnesses in discovery disputes.
A. Damages
Except in the rarest of cases, almost every party to business torts litigation
at some point retains an expert witness to calculate the economic dam-
ages claimed or defended against. Such experts typically include forensic
accountants, economists, or appraisers.
1. Forensic Accountants
A party’s economic damages are most often calculated by forensic accoun-
tants or forensic economists. Recognized qualications for forensic
accountants and forensic economists include Certied Public Accoun-
tant (CPA),1 Certied Management Accountant (CMA),2 and Chartered
Financial Analyst (CFA).3 Forensic accountants/economists with such
1. American Institute of Certied Professional Accountants, http:// www .aicpa .org.
2. Institute of Management Accountants, http:// www .imanet .org.
3. CFA Institute, http:// www .cfainstitute .org.
B  T: A P  G  L 
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