Search results

This paper aims to investigate factors which may influence or bias judges’ decisions to exclude or admit the testimony of accounting expert witnesses, under the US judicial guidelines commonly known as the Daubert/Kuhmo standards. Accounting experts are increasingly providing expert testimony as a part of financial litigation support services.

Judges’ decisions, in which opposing council evoked a Daubert/Kuhmo challenge to the testimony provided by 130 professional accountants serving as expert witnesses, were analyzed. The period of study was 2010 through 2014. Based on prior research, three variables believed to potentially influence or bias judges to systematically exclude expert testimony were examined: gender, complexity and familiarity.

The results of binary logistic regression show that none of the variables has a significant relationship to the accounting expert witnesses’ probability of surviving a challenge to Daubert/Kuhmo standards. Findings suggest that judges are objective in evaluating the testimony provided by accounting experts under Daubert/Kuhmo guidelines and that they may be immune to biases based solely on gender, complexity and familiarity.

These results will be of interest to judges, lawyers and forensic accountants acting as expert witnesses.

In 2009, the Third Circuit decided Hydrogen Peroxide, which announced a more rigorous standard under Federal Rule of Civil Procedure 23(b)(3) for assessing whether a putative class could establish antitrust injury. Earlier this year, the Supreme Court decided Comcast v. Behrend, a case that carries potentially broad implications for both antitrust cases and Rule 23(b)(3) class actions generally. A review of the case law starting with Hydrogen Peroxide and continuing through Comcast and its progeny reveals the new rigor in antitrust class action decisions and suggests what the future may hold, including the type of arguments that may provide defendants the most likely chance of defeating class certification. After Comcast, rigor under 23(b)(3) can no longer be avoided in assessing all class actions questions, and courts should now apply Daubert fully in the class setting concerning both impact and damages. Courts should also closely evaluate plaintiffs’ proposed methodologies for proving impact to determine if they apply to each class member. Finally, courts will inevitably have to determine how rigorously to scrutinize experts’ damages methodologies and whether Comcast requires or suggests more scrutiny in assessing common evidence for measuring damages.

Expert evidence is a contentious area with a number of high profile cases highlighting unreliable “scientific” expert evidence, leading to appeals and acquittals. The purpose of this paper is to argue for improvement in the assessment of expert evidence reliability to avoid such difficulties.

A review of the area focused on the history of developing legal criteria for admitting “scientific” evidence. It examined the benefits and difficulties of approaches, and proposes an amendment to criteria for increased transparency and evidenced decision making.

The review indicated a range of difficulties with “expert” evidence admissibility, including inconsistency, an over-focus on narrow elements of evidence, difficulties in interpretation, and the potential to unfairly restrict evidence. An alternative to current approaches is proposed. This takes the form of a two-stage approach to consider whether or not to admit expert evidence. It comprises a preparation and an examination stage. The former seeks to critically review the evidence and define its nature. The latter applies two sets of criteria; a Daubert application for generally accepted physical sciences, and proposes an Abridged-Daubert for novel and social/behavioural sciences. Also proposed is increased involvement by experts in critically reviewing their own evidence and in providing statements of limitations.

The paper concludes by outlining the importance of developing such an approach for the UK legal system. It focuses on the application of specific criterion which could assist both Courts and witnesses to evaluate the quality of evidence prior to submission by accounting for the nature of the opinion evidence provided.

The paper outlines a practical approach to examining evidence which has benefit to practitioners and advocates when opinion evidence is outlined.

This article responds to James Keyte, Paul Eckles, and Karen Lent’s article “From Hydrogen Peroxide to Comcast: The New Rigor in Antitrust Class Actions” (“The New Rigor”). It argues that The New Rigor offers valuable strategic advice to defense counsel – and insight into defense counsel’s strategic thinking – but is much less effective as an objective statement of the law or a normative argument for legal reform. In the parlance that I adopt, The New Rigor succeeds in the role of coach but much less so in the roles of commentator and critic.

In class action antitrust litigation, the standards for acceptable economic analysis at class certification have continued to evolve. The most recent event in this evolution is the United States Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1435 (2013). The evolution of pre-Comcast law on this topic is presented, the Comcast decision is thoroughly assessed, as are the standards for developing reliable economic analysis. This article explains how economic evidence of both antitrust liability and damages ought to be developed in light of the teachings of Comcast, and how liability evidence can be used by economists to support a finding of common impact for certification purposes. In addition, the article addresses how statistical techniques such as averaging, price-dispersion analysis, and multiple regressions have and should be employed to establish common proof of damages.

The purpose of this chapter is to outline new methodological developments in business valuation, with particular attention to how those developments are being used in litigation involving lost profits and the value of operating businesses. In addition to methodological developments, the chapter also includes a discussion of recent legal developments, particularly selected cases that affect the use and standards for business valuation techniques within litigation settings. Finally, the chapter includes a mathematical appendix.

This chapter examines whether the view of the jury in cases involving forensic evidence can be changed from that of “naïve automatons” to that of “sophisticated decision makers”; whether the defense and prosecution must provide the jurors with information to help them develop a schema upon which to evaluate the forensic evidence; and whether to remove decision making from the expert forensic scientist and return it to the jury. The chapter uses secondary sources of information collected from criminal cases, the current federal law, as interpreted by the U.S. Supreme Court dealing with expert testimony, studies of how to enable juries confronted with forensic evidence, as well as a framework of learning theory and persuasion games. I argue that expert forensic scientists make errors. Juries are capable of making decisions based on complex forensic evidence if provided the knowledge within which to develop schema to evaluate that evidence. Competition between the defense and prosecution in presenting interpretations of scientifically valid evidence, as well as providing schema to enable the jury to evaluate the information, provides juries with the ability to arrive at a full information decision. Expert nullification of jury decision making should be halted and decision making returned to the jury. The value of this chapter is to integrate learning theory from cognitive psychology with one-shot and extended persuasion games to evaluate the roles of the jury and the expert forensic scientists within the criminal justice system.