Customary and Not-So-Customary Services in the Litigation Arena
We have worked with many attorneys over the last 30 years on a broad range of projects for purposes ranging from gift and estate tax to financial reporting to employee stock ownership plans (ESOPs) to fair value determinations. In addition, a growing number of assignments have been related to litigation support. As such, this article relates our experience in the litigation support arena and highlights not only those services well known to attorneys, but other services that business valuation professionals can provide with which some attorneys may not be as familiar.
Customary services a business valuation professional can provide in a litigated situation are summarized below:
- Consultants in litigated matters
- “Fair value” determinations in dissenting minority shareholder situations in numerous states
- Estimates of damages and lost profits
- Valuation in marital dissolutions
- Valuation in corporate dissolutions
- Buy-sell agreement litigation
- Bankruptcy matters
- Valuation in U.S. Tax Court
- Formal appraisal review under Standards Rule 3 of Uniform Standards of Professional Appraisal Practice
- Determining value in condemnation situations
- Securities fraud
- Corporate tax matters
- Analysis of complex business issues from a valuation perspective
- Numerous other matters
Not-So Customary Services
Attorneys familiar with valuation-related litigation understand that an expert for one side is often called upon to review or critique the report of the expert on the other side. In other cases, an independent business appraiser is retained to provide the needed review and analysis, either for attorney preparation or for rebuttal at trial. We mention these customary services as a prelude to less customary services listed below (over the years, we have worked with many attorneys to provide these additional services):
- Analyzing the work of other experts to ascertain reasonableness (or not) prior to filing litigation
- Preparation of preliminary damages analyses, or developing initial damages theories, prior to the filing of damages litigation
- Preparation of questions to assist counsel in the deposition of expert and/or appropriate fact witnesses
- Developing follow-up questions based on counsel’s deposition preparation (“If the response is ___, then ask ____.”)
- Assistance in developing discovery requests
We or any other business valuation professional cannot provide these services unless we are retained in time. It is frustrating as an expert to be retained after the discovery has closed or after the depositions of fact and expert witnesses have been taken.
What are the benefits of these not-so-customary services?
- Making the attorney’s job easier and leveraging his or her expertise
- Developing realistic expectations for damages and/or value in the preliminary stages of litigation (and assisting with managing client expectations)
- Enhancing the understanding of the strengths and weaknesses of the opposing expert’s position(s)
- If appropriate strategically, pointing out errors or logical problems in the opposing expert’s work at the deposition stage
- Enhancing the prospects of timely settlement
Whatever your needs in the litigation arena, please do not hesitate to contact us if you have questions or desire to have initial discussions in complete confidence.