In my home state of Ohio, expert reports must be submitted sixty days pre trial. If I am retained as an expert witness, I know what I have to do and when: submit a full report by the indicated date and be available for deposition and testimony. I have done this many times and am comfortable with the procedure.
If, in addition, I am given a copy of the opposing expert’s report (well in advance of the trial date), I am also comfortable issuing a second report that, depending on circumstances, confirms / rebuts the other expert’s report or compares and contrasts our respective opinions (assumptions, methods and conclusions).
Confirming reports are straightforward. I think the business interest is worth $100,000, she thinks it is worth $95,000, let’s settle. Rebuttal reports are straightforward, too. I present a justification of purchase test demonstrating that her conclusion is too high or too low, describe the assumptive and methodological errors, and present a “corrected” report that corresponds with my value conclusion.
Compare / contrast reports are applicable when she and I have legitimate differences of opinion; i.e. her conclusion is not unreasonable (according to me) but we still differ by an amount that probably cannot be settled easily. This might be because of legitimately different appraisal assumptions (e.g., her forecast of cash flows was higher than mine) and / or because of different legal assumptions (I was told that discounts for lack of control and marketability do not apply; she was told that they do). Here, a tabular comparison of our assumptions and their value impacts highlights where we agree and disagree, and the valuation implications.
What is NOT always clear to me is what I am supposed to do when the other side has provided an expert report and I have not yet been retained by my side. I have received different instructions in different cases. If I am asked to prepare my own independent report (well in advance of the 60-day deadline), then I do know what to do, it is as outlined above, and I have sufficient time.
But sometimes I am asked to “review” or “critique” the other expert’s report. The best way for me to do that is to prepare my own report and proceed as above, including possibly being deposed and / or testifying. Alternatively, I can act as a “consultant” to my client’s attorney. Consultants do not testify. Their work is protected by attorney-client privilege because the attorney, not the client, retains me.
What I do in consulting cases is to ask the attorney what I can do for him or her that would be most useful. Often this amounts to the same thing as providing a confirming or rebuttal report, depending on whether I agree or not with the other expert’s opinion. If I agree, I issue a short confirmation report. If I do not, I then issue a rebuttal that summarizes what the other expert did and concluded and their errors. I then furnish questions to ask of that expert in deposition or testimony.