Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A P R I L 2 0 1 7 45 that should be relevant . . . but the expert might not even know it." Doing the math Typically, Osborne says, valuation experts will be given financial state- ments of the company or business of their client. "Are they audited, for start- ers? Sometimes, I'll run those state- ments past an auditor to see what they missed." Then, he asks what the adverse expert looked at, beyond the financial reports, including income tax returns of the company, "that might be a little more revealing than the statements." "Finally . . . I always check the math. In a surprising number of reports, there's an arithmetic or transposition error. [The expert] just got the num- bers wrong. All clients are under such fee pressures that we sometimes forget experts are under that as well. . . . I often ask was their analysis . . . restricted due to fee or time constraints?" Preparing your own expert Working with one's own expert is what will give a practitioner details and "a command of the relevant facts that's going to allow you to cross-examine the adverse expert," notes Richter. He aims to work out how the two reports, of his own and of the adverse expert, may have arrived at a different conclu- sion. "We try to anticipate questions in that regard so that [our expert has] an answer as to why he adopted his con- clusions." Preparation of one's own expert begins long before they take the stand. Olthuis says he looks for someone with extensive expertise. "Where possible, you want to look for someone with a proven track record and who has testi- fied well in court previously," he says. "That weeding-out process will provide some confidence that the person will fulfil their duty to the court, to assist through their evidence." Osborne puts his own experts through a brief, mock cross-examination to prepare them for questions from the other side "and to prepare me for my own examination of my expert in chief. . . . I try to take the blinders off [to avoid] walking by tough questions." He will also ask his experts if there is anything they should disclose to him that will embarrass themselves or him, such as disciplinary findings or provid- ing contradictory opinions. "Sometimes, I've decided not to call my own experts. If I'm sufficiently nerv- ous, I'll ask if I really need this evi- dence." IN A SURPRISING NUMBER OF REPORTS, THERE'S AN ARITHMETIC OR TRANSPOSITION ERROR. [THE EXPERT] JUST GOT THE NUMBERS WRONG. PETER OSBORNE, Lenczner Slaght Royce Smith Griffin LLP Bright minds protecting bright ideas since 1893. Committed & accomplished members of the Canadian innovation & legal communities. Toronto • Ottawa • Mississauga ridoutmaybee.com ntitled-4 1 2016-10-31 11:13 AM

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