Not every litigious situation calls for a financial "expert's" report and testimony. The key is in knowing when an expert report is essential to your case and how to use that individual's time and expertise efficiently and effectively. The decision to engage an expert is important, especially since an expert report often requires extensive disclosure and analysis, and therefore, can be costly.
Expert evidence can relate to a financial opinion report with respect to the quantum of economic losses, business value, propriety of accounting, etc. A "Limited Critique Report" or a "Rebuttal Report" can be required if opposing experts exist. When a financial expert is engaged, regardless of who they were hired by, it is imperative that conclusions are independent and objective, so as to aid the Court.
In order to determine when to engage a financial expert, several factors should be considered including whether your expert will qualify in front of a judge. The criteria for qualification and admission of expert evidence (according to R. v. Mohan (1994) 2 S.C.R. 9) are as follows:
- the evidence must be relevant;
- it must be necessary in assisting the "trier of fact";
- there should be no "exclusionary rule" which would prohibit the testimony's admission; and
- the expert should be properly qualified.
In order to be considered necessary, the expert evidence should fall outside the judge's (or where applicable, the jury's) experience and/or knowledge.
In addition, the financial expert should be engaged as early as possible, in order to ensure that the expert is used optimally and is well prepared. This will provide the expert with sufficient time to request and obtain the proper information and documentation, in order to complete the report and be able to provide testimony.
Of further importance is whether opposing parties are presenting expert evidence. Depending on the nature of the matter, it may be necessary to hire your own expert in order to rebut the opposing expert's report.
JULIE ZYLBERLICHT
Julie is a Specialist in the Business Valuations & Litigation Support Group at Soberman LLP, Chartered Accountants in Toronto. She attended McGill University for her undergraduate studies where she received her Bachelor of Commerce and graduated from the Honours Accounting program. She later went on to attain her CA designation in 2008 and her Chartered Business Valuator (CBV) designation in 2011.
Julie is experienced in the following areas: matrimonial matters, evaluating business assets and goodwill, tax and corporate reorganizations, shareholder and partnership agreements, and other litigation support.
This article has been prepared for the general information of our clients. Specific professional advice should be obtained prior to the implementation of any suggestion contained in this article.
