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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.
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