Business litigation often involves so much detailed information and data that counsel as well as the court are hard put to comprehend it. As complexity increases, the need becomes pressing for someone with sufficient knowledge and expertise to put data into perspective, explain how it is used, what it means, and why it is relevant. There is a frequent need to relate certain events and actions to normal business practices and to convey this knowledge in a comprehensible, understandable manner to the court in a written report or verbally as an expert witness.
Because management consultants frequently work with both large and small companies in almost all phases and functions of management, they can offer a unique and useful source of experience and knowledge to litigation counsel.
For example, in a business practice suit, past actions and events or the future effect of these may have to be evaluated in the context of what is usual and acceptable. It may be as important in one instance to show that a series of discrete actions tends to develop a pattern and in another instance to show that a single event was a deviation from a normal method of business conduct.
Serving as an expert witness is no job for a Walter Mitty. Ideally, a consultant should prepare for the task as carefully as for any important consulting engagement.
Adequacy of capital and other resources, value of a closely held corporation, appraisal of business strategies, and appropriateness of executive actions are examples of areas which may come under scrutiny by a court or regulatory agency. Litigation of such business matters often includes involved issues that judge and jury must have explained. Courts frequently draw conclusions not only from actual performance but also from indications of intent regarding economic power or conditions existing in an industry or market. Without explanation, the distinction between normal competitive actions and those which may be anticompetitive may not be readily apparent.
The knowledge, experience, and skills of a management consultant in litigation support quite closely parallel those required in most business consulting assignments. Even though the objective is not to effect or implement change or to make something happen, similar written and verbal skills of analyzing, reasoning, and explanation are called upon. Take the following examples of cases in which management consultants played pivotal roles.
The estate of a minority stockholder in a closely controlled company was faced with what appeared to be an unreasonably large valuation claim by tax authorities. Analysis and research showed that competitors had drastically altered marketing and merchandising practices to capitalize on changing customer preferences, whereas this company’s outlets were old, too small, and poorly located. Analysis of market changes, competitive conditions, and comparative resources revealed the need to abandon certain of its major facilities, the inadequacy of its capital, and its inability to secure funds needed to remain competitive over the long term. A carefully supported and reasoned valuation conclusion presented in a thoroughly documented, logical report was convincing, and obviated litigation.
The Changing Environment of Management
Since the turn of the century and especially since the late forties, major changes have occurred in almost all large businesses and many middle-sized ones. Ownership and management are no longer synonymous. Management, which used to be able to manage through divine right of ownership, now has to be acutely aware of special needs, requirements, and demands of owners. Business is also subjected to increasing internal and external demands. Many decisions which management felt were its sole prerogative, such as the hiring and tiring of employees and the opening or closing of a plant, are no longer private, internal matters. Coupled with these changes has been an increase in the external review and control of companies; rules and regulations at all levels of government have risen dramatically. No longer is the conduct of a business reviewed only by its senior management, directors, and stockholders, but, increasingly, by many internal and external groups and agencies.
- An investigative reporter’s news article revealed possibly questionable actions by a corporation’s chief executive. Stockholders and lenders demanded an investigation by an outside counsel. Charting of companies, divisions, subsidiaries, antecedents, major suppliers, and customers developed a number of previously undisclosed corporate affiliations and relationships. The management consultants’ analyses assisted counsel in expanding interrogatories and depositions to reveal previously undisclosed business practices.
Use of Management Audits
The broadest and most encompassing appraisal and evaluation of a total business entity is frequently called an organization audit, a business review, or a management audit. For organizations that are subject to public scrutiny, such as utilities, health care, and educational institutions, these audits have been encouraged and sometimes mandated by external forces. Financial institutions often seek similar in-depth analyses to satisfy due diligence requirements before issuing new debt or equity financing. Recognizing a larger role and responsibility beyond today’s profitability also has caused many corporate boards and managements to seek management audits.
Management audits examine how the company was managed in the past, how prepared it is to meet the future, and whether it satisfies its internal and external obligations. In many broadly based litigation matters, the contested issues that may require the testimony of ah expert witness are those that a management audit discloses.
From such an objective analysis and establishment of evaluative criteria, an expert witness is prepared to analyze and support testimony on an enterprise’s plans, programs, and executive actions, such as the following:
- Should a subsidiary with a record of losses or marginal profitability have been sold at a price well below book value?
- Was a bankruptcy predictable? Were signals duly noted and acted on? Were actions prudent?
- Were corporate resources properly allocated and shepherded in view of changing market, economic, or technological opportunities and challenges?
- Were the price, terms, and conditions of an acquisition fair and reasonable? When the business had to be abandoned three years after acquisition because of continuous losses, was it because management did not exercise due diligence before the negotiations?
How Much Is the Business Worth?
Business valuations are a specialized form of management audit and are among the most frequently used forms of litigation assistance. In stockholder appraisal rights and estate tax cases, there is usually more regulation, statute, case, and opinion law to be considered and evaluated than in a normal business audit. More than passing attention must be given to legal and tax requirements and precedents, even if the situation does not immediately involve either gift or estate issues. While many valuations will not ultimately be tested or challenged in an administrative hearing or trial court, the possibility can never be discounted when interests in closely held companies or public, but thinly or inactively traded, securities are involved. The purposes and limitations of any appraisal estimate should be clearly defined, but there is always the possibility that the estimate may be cited for other uses should the company become involved in litigation.
Book values and earnings history form the bases for most estimates of value; however, inflation has added a new dimension, since asset values may far exceed those recorded by traditional accounting practices. Similarly, sales and earnings, when adjusted for inflation, may show a quite altered trend. Management’s quality, skill, and capability in seizing opportunities and utilizing available resources are what past financial statements and future projections represent. One of management’s major contributions is the creation of intangible values, such as goodwill. The separability or independence of management contributions, whether by death or departure, is one of the unique considerations of this form of management audit. So, while financial statements based on generally accepted accounting principles are an essential starting point for most estimates of business value, many other factors must be considered. Here is an example.
- A gift tax valuation of a closely held stock was challenged as being too low. A thorough study of corporate executive actions confirmed the highly personal and separable nature of the president’s relations with major suppliers and customers, which justified a sizeable “keyman” discount.
Litigation Settlement Strategies
Another adaption of consulting skills is litigation settlement analysis and planning. The financial risks that come with rapidly accelerating costs for preparing and conducting litigation and what often appear to be stratospheric settlement awards are causing management to consider pretrial settlement in many cases. Companies also are becoming aware that vast amounts of executive and staff time can be taken up in depositions, interrogatories, and trials that interfere with the conduct of regular corporate business. Other hidden but not inconsiderable costs include the wages spent in scouring files to produce necessary documents.
Corporate executives recognize that the risks of litigation and settlement can frequently be as crucial, in their total cost and future impact on a company, as the decisions on products, processes, and plants. Because of that impact, many managers now recognize that they should not just passively participate but actively engage in litigation settlement— treating it as another risk decision they must make for their company.
To counteract the cost, delay, and frustration of litigation, the techniques employed in strategic planning, probability assessment, and alternative decision analysis are being utilized by corporate litigants. Experience with advanced planning and analysis techniques offers a consultant opportunities to provide guidance to clients in the timing, amount, strategies, and probability of acceptance of settlement offers or, conversely, in countering, delaying, or declining acceptance.
Choosing and Using an Expert Witness
At the outset of discussions with a prospective expert witness, counsel should thoroughly present the nature of the case, any major anticipated problems, legal precedents, or proscriptions that may be involved, counsel’s preliminary strategy, and what is to be expected of the expert. Only with a complete understanding of all aspects of a case can the expert know whether it will be possible to provide necessary and supportive but unbiased opinions. It should never be forgotten by either counsel or consultant that an expert’s role is not one of advocacy but of total objectivity and lack of bias. It should not matter for which side of a case an expert is testifying.
Some experts will only work for trial counsel and eschew corporations or individuals as clients. A good trial lawyer willingly accepts the truth, unpleasant or unfavorable as it may be. Those who avoid corporations or individuals as clients do so from sad experience-such clients may, on occasion, be less objective and less willing to accept unfavorable facts or conclusions.
Credentials in a specific industry are important in certain cases, and some consultants specialize within an industry. But in the main, consultants deal in fresh ideas, transferable management techniques, and information on potential problems and opportunities. A decision has to be made as to whether the situation calls for a broadly oriented expert or one knowledgeable in a specific management technique or a particular industrial area. Most management consultants will usually have little prior experience with a particular industry, but it is part of their normal preparation for any comparable consulting assignment to collect and analyze industry data and competitive information and, frequently, to interview outside or secondary sources for background on which to base conclusions, recommendations, and opinions. Since a qualified expert in a particular industry is frequently impossible to find, counsel must choose a consultant who is knowledgeable in subjects relevant to the particular case.
While each court has final say on who may testify as an expert witness and on any limits to that testimony, generally an expert may be qualified whether his knowledge has been gained entirely through practical experience, entirely through study, or through a combination of the two. Because expert testimony is opinion evidence, it is vitally important that qualifications be thoroughly presented to court and jury. These may include work history as well as formal education, continuing training, publications, and speeches.
Specific educational degrees may not be as important as they are for other experts, since management and management consulting require an agglomeration of skills, knowledge, leadership, reasoning, inquisitiveness, and judgment. There is no single source of expertise, pattern of training, or type of experience that assures success in management or management consulting.
If counsel will attempt to establish a point that is clearly contrary to established law-in effect, to “write new law”—both sides of the issue must be clearly defined. In such cases, an expert should be prepared to give an opinion based on existing law, in the event that the court rules against the counsel’s premises.
Preparing for a Litigation Assignment
In business litigation a management consultant can offer trial counsel a broad understanding of management, business, and various industries, and an approach to problem solving attuned to the varied and complex issues encountered in business. What a consultant may lack in knowledge of a specific business enterprise or industry is usually balanced by a number of advantages, not the least of which are impartiality, objectivity, and credibility. While an expert will be paid by one side or the other, it is essential that whoever is chosen must not only maintain an attitude of impartiality and objectivity but be able to convey credibility in attitude, manner, and presentation. A skilled opposing counsel will usually be able to expose advocacy, much to the embarrassment of the expert and the destruction of the testimony.
Preparing for a business litigation assignment is time-consuming and complex, requiring numerous decisions based on a wide variety of knowledge and experience. The material selected must be pertinent, so that the expert’s analysis and opinion are consistent with acceptable business and legal practices. It is important, before the trial, that counsel thoroughly understand the interrelationships of the factors and actions of a company or its competitors and the overall industry. Both counsel and consultant have a pretrial advantage that is available to neither judge nor jury—that of being able to develop, examine, and reexamine the complexities under relaxed and informal conditions. Because the judge and jury will not enjoy a similar opportunity, it is essential that simplified, logical, supportable, and easily comprehensible presentations be developed on each major issue.
Tentative thinking and experimentation on the part of an expert may be helpful to trial counsel during the early, exploratory stages of litigation planning. In rendering an expert opinion, however, these practices must be set aside. One common practice in cross-examination is to pose a hypothetical question; an expert is well warned to resist the temptation to show off analytical skills on the witness stand. To display all the necessary facts and make the necessary analyses while under pressure is not only dangerous but usually foolish—as an opposing counsel will often demonstrate. Concentrating on the known specifics of the assigned situation and avoiding the speculative and hypothetical should be the rule for the expert witness in verbal as well as written testimony.
An expert witness must always give trial counsel the whole truth, as unpleasant—or unusable—as it might be in trial. It is better to have it known beforehand than to have it arise for the first time during cross- examination. If it is obvious to the expert, it is just as likely that opposing counsel and their experts will arrive at the same conclusion. The witness stand is not the place to have to face any predictable fact or situation for the first time, for expert or counsel.
It is important to develop a case in considerable depth, as early as possible, and with the most painstaking care. A professional can estimate what opposing counsel or experts may allege, identify additional areas or subjects for discovery or investigation, and determine the relevance of documents, testimony, or assumptions, all of which can aid in case preparation, choice of counts to be cited, plea response, and trial strategy. Properly chosen, prepared, and utilized, a skilled expert can assist in removing uncertainty and reducing complexity for counsel, court, and jury.
Once an expert is selected, sufficient time should be provided to “walk around” the problem requiring testimony several times, to view it from all angles, and to obtain as many perspectives as possible. Time should be allowed to develop, test and explore hypotheses, and to secure necessary primary and secondary data. As early as possible, the subject area that the expert will be expected to examine, investigate advise, or give an opinion on should be defined in writing, to assure that the expert will not be expected to testify or be cross examined on matters outside the scope of that expertise.
The expert’s support role should also be defined. How much assistance in pretrial preparation will the expert provide? Will the court appearance be made with only notes to work from, or will the expert submit a detailed and documented report which will be entered as evidence; Or will the expert merely act as an adviser and resource for cross-examination of opposing witnesses? If an expert is to be used during the trial to advise counsel on opposing witnesses or expert testimony, the appearance, let alone potential charge, of advocacy must be weighed. In some instances, such advice may be sufficiently valuable so that it will be used instead of expert testimony. Opposing counsel will seek every opportunity to impeach not only the testimony but also the character reputation, qualifications, and impartiality of the expert.
Another area in which expert witness assignments differ from usual consulting engagements is the matter of discovery, and the rules of discovery vary from one judicial jurisdiction to another. If there is any doubt, it is best to clear with counsel what data the opposing side can demand. Otherwise, particularly sensitive data, working papers, special studies, or incomplete analyses might give the opposition a free ride if they should engage in a fishing expedition.
EDITOR’S NOTE: We acknowledge recent publication of an article on a related topic, “On Being an Expert Witness in Valuation and Other Financial Matters.” by Robert Emmett, SRC Quarterly Reports, Winter 1981. Mr. Emmett is executive vice president of Standard Research Consultants, publisher of this referenced quarterly newsletter.
George S. Arneson CMC heads his own management consulting firm in Leawood, Kansas, a suburb of Kansas City. The firm works primarily with closely held companies on strategic planning, management organization, turnarounds, mergers and acquisitions and business litigation support, often involving valuations. Mr. Arneson has been qualified as an expert witness in several state and federal courts.
Previously he owned and operated a manufacturing company in the graphic arts industry. He also has been CEO of The Vendo Company, vice president of marketing for Wheeling Steel Corporation, and president of its manufacturing subsidiary, Wheeling Corrugating Company.
Mr. Arneson has published articles in Taxes, Mid-America Commerce and Industry, and Bank News.
He is a graduate of the University of Minnesota (bachelor of electrical engineering) and the U.S. Merchant Marine Academy (bachelor of science). He is a member of the Academy of Management.