In our 24-hour-live-news-coverage approach to local and world events, it appears that there is always a new crisis brewing. Crises can hit any industry at any time, underscoring the need for experts in all professions. But the experts that serve as witnesses in these crisis cases can encounter their own, personal crises of timing, conflict and conscience.
Natural disasters, such as the volcanic eruptions at Eyjafjalla Glacier in southern Iceland that wreaked havoc on the tiny country’s landscape and created a travel crisis throughout Europe, do not allow the same opportunity for litigation to recover the possibly billions of dollars lost.
Man-made disasters, however, generate a need for expert witnesses in tough legal battles. Over the past few years, we were brought the “Sub-Prime Lending Crisis,” “The Financial Crisis,” and the broader “Economic Crisis” aka, “The Recession.” Other past man-made crises include 9/11, the “dot com bubble,” and Exxon-Valdez.
Other major events that may not have reached the status of “crisis” according to the news but certainly came close if we take into consideration the vast number of lives affected include Enron, Asbestos, Chinese Drywall, Madoff, Vioxx, and even hurricanes Ivan, Katrina and Rita.
Billions of dollars in losses spark the need to aggressively seek billions of dollars in recovery. There is no question that the top law firms in the country were quick to create specific practice areas in Finance, Banking and Securities to focus on the sheer magnitude of cases that were (and still are) being filed. Regardless of the event, litigation to repair and remedy has flourished under just about every crisis and has created a massive need for experts in the process.
Technical experts are needed to address cause and responsibility, as well as being key to the determination of negligence or the presence of malicious intent. Economic experts are hired to apply statistical models, forecasts and valuation methodologies to calculate damages.
Despite the high demand that crises generate, experts who find themselves positioned to assist in crisis-related litigation need to carefully consider other factors that create difficulties.
Cases Can Span Decades
Experts involved in crisis litigation must consider the duration of the litigation and the commitment they are making. Exxon spent 21 years in court after the Exxon-Valdez ran aground and there are still matters some feel are unresolved.
In the financial services industry we are seeing experts, currently engaged in ongoing litigation, also taking on work on Wall Street. This has the potential of causing difficulty because new employers often refuse to allow the experts to complete their previously contracted work. Employers may have “no moonlighting” policies or they simply may not want to take on the extra risk that comes with an expert witness rendering an opinion on issues of future importance to the company. Depending on how far a case has progressed, it may be very difficult, if not impossible, for attorneys to substitute experts.
All litigators are concerned about how an opinion in one case could possibly taint an expert’s credibility in another case. These same sensitivities are magnified in crisis litigation. To avoid unforeseen conflicts, every expert working a crisis case must take extra care to work with each client to define exactly what the boundaries are, and what the client considers to be a conflict – especially if the expert plans to work on multiple, related cases.
Crisis of Conscience
As in most legal matters, the colors are rarely black and white. In the current Gulf oil spill crisis, fishermen, oystermen, hoteliers and landowners all appear to be clearly on one side with only a few big companies on the other.
Every expert has to decide whether or not to take on a new case. It is not enough to just look at the party names. Plaintiffs in one case can become defendants in another. Simply getting to the point of understanding causation, responsibility and liability requires the assistance of a good expert. Choosing a side is an important decision and shouldn’t be taken lightly.
Regardless of your specific areas of expertise, it’s possible that you’ll be called upon to assist in crisis litigation. Take special care to address your commitments carefully. IMS has provided experts to dozens of crisis-related cases. Consider carefully whether you are able to accept these types of cases. Should you find yourself in a position where an attorney has called you directly and yet you must decline, feel free to redirect them to IMS for a conflict-free expert. We will give your clients the same professional service we give all our attorney clients.
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