At Current Capital, we pride ourselves on providing, among other services, high-quality expert witness services in corporate litigation. Drawing upon decades as investment bankers, corporate directors, private equity investors, and operating executives, we bring extensive, practical knowledge and significant experience filling reports and providing testimony at deposition and trial. We serve as expert witnesses primarily in the areas of mergers and acquisitions, financings, private equity, restructurings, governance, and valuation.

However, many aren’t aware of the value of expert witnesses and their part in judiciary proceedings. The role of the judicial process is for the court to make findings based on facts and law with attorneys for the plaintiff and defendant making vigorous arguments to support their positions.

Many cases have fact witnesses and expert witnesses. Fact witnesses have personal knowledge of the issues. Expert witnesses can testify because of special knowledge or proficiency in a particular field that is relevant to the case. From opinions on custom and practice to views on industry standards, technologies, valuation, and other issues, an expert witness can help the judge and/or jury understand topics that are perhaps not fully understood otherwise. Under the Federal Rule of Evidence (702), an expert witness is an individual whose “… knowledge, skill, experience, training, or education… [will] help the trier of fact to understand the evidence or to determine a fact in issue.”

However, expert witnesses aren’t simply veterans of their industries. While, technically, anybody with relevant expertise can become an expert witness, the duties involved require a thorough knowledge of the issues, a comprehensive investigation of the record and, often, a detailed report with analyses and opinions; a deposition and/or trial testimony can follow. Expert witnesses are generally hired by litigators on behalf of their clients.

There’s no theoretical limit to the number of situations and issues where an expert witness may be useful. In medicine, expert witnesses might comment on standards and accepted treatments in instances of alleged malpractice. Engineers might comment on road conditions or infrastructure that can shed light on factors that may have contributed to a car accident. A finance executive might opine on custom and practice in due diligence by a company or underwriter as well as on the appropriateness of a Board’s consideration of a sale of a company. All of this information must be distilled to where it can be effectively communicated and understood.

The standards for expert witness testimony have changed over time: the original standard was set following Frye vs. the United States, where it was deemed that expert witnesses needed to present evidence based on the methodology of the scientific community. Later on, the 1993 case Daubert vs. Merrill Dow Pharmaceuticals, Inc. relaxed this standard to some extent, with the court finding that judges should rule on the merit of an expert witness’s testimony.

Of course, attorneys typically exercise caution and vet anybody they consider as an expert witness. They evaluate tenure and expertise in relevant areas, as expert witnesses need a thorough understanding of and experience in the topics on which they offer opinions. Even before a case goes to trial, a witness can be brought in to help review important documents or even help reach a settlement. In fact, it’s often valuable to have an expert witness involved early in a potential or actual lawsuit.

Though expert witnesses are generally not attorneys, they play an important role in litigation. Helping the judge and/or jury understand clearly specialized subjects and practices can be very impactful in litigation.

Jonathan F. Foster
Founder & Managing Director – Current Capital Partners LLC