Expert witness providers – who’s most active?
It’s one of the less discussed issues in modern international arbitration: are experts who earn their living by testifying a strength or weakness of the system? Does moral hazard apply to experts?
A leading arbitrator was recently asked about this and gave a decisive – if contrary – view.
“Repeat experts, I think, are a good thing” replied Doug Jones, during GAR Live Dubai 2015.
“My experience of experts who do it repeatedly is that they get to realise that their own personal reputations depend on avoiding extreme positions which are unsustainable.
“And further,” he added, “they get to understand that they will be far more effective if they put forward fair propositions that they can themselves intellectually justify.” Recalling his days as counsel, Jones said having a view from a battle-hardened expert could sometimes assist in giving a client a more realistic view of their case. You could talk them down, he said, from an extreme position.
“It’s a very positive thing for the process,” Jones concluded.
Of course there may be some exceptions – experts who think they can say one thing in one case, and another in another, and not be found out. But assuming they are a minority (and it does tend to become known if someone is doing that), how does one find experts of the type Jones described: an individual who has been through the fire a few times, and is more useful because of it?
This new section of the GAR 100 may help. It shows how many international arbitrations some of the better-known consultancies have taken part in recently.
In particular, we asked firms to show us how many hearings their experts have testified in, and how many cases they provided an opinion in but which didn’t reach a hearing (either because it settled, or the matter is pending). The research covers two years – 1 August 2013 to 1 August 2015.
You can see the results in Figure 1.
To cross-check the information from consulting firms, we also asked law firms in the GAR 100 to start including the names of experts in hearings they were reporting, along with their recommendations.
We have laid out these results alongside the findings of our sister publication Who’s Who Legal: Arbitration, which now also includes expert witnesses who’ve been sufficiently recommended during research.
By no means is this research exhaustive. For a start, not every consulting firm contacted agreed to send information. Some sent it, but didn’t consent to publication. Nor does the research tell you anything about how the expert in a particular case went over – whether their analysis carried the day.
Still, the findings are illuminating.
Certain specialisms – for example construction – seem to correlate with a higher number of hearings (see, for example, the firm Secretariat International). Size too appears to matter. The bigger you are, the more hearings you’ve been in. In future editions we will explore this link more closely.
The busiest firms
The busiest firm, in terms of actual hearings, in the graph is Secretariat International. Its members took part in 69 hearings in the past two years. Founded in 2008 by Don Harvey, who, according to the current Who’s Who Legal, is one of the leading expert witnesses in the US, the practice as a whole has a particular focus on construction and project disputes. For example one recent matter is providing delay and disruption analysis on the US$5 billion Panama Canal expansion project. The firm is also home to Amit Garg, Ted Scott (in Los Angeles) and Mike Saulsbury, all of whom share a similar construction and projects focus to Harvey. Clients and lawyers that Secretariat International experts have worked with include Areva, Hyundai, Al Habtoor Leighton, Freshfields Bruckhaus Deringer, Pinsent Masons, King & Spalding, Three Crowns, Vinson & Elkins, Shearman & Sterling, Bechtel and Chevron. In 2015 the firm made several hires intended to add to its damages and government contracts practice, in DC and Atlanta.
The busiest firm overall in the graph is FTI Consulting. Its experts have been in 48 hearings and 110 cases where an opinion has been provided but no hearing has taken place (yet). It works across the board in treaty and commercial matters, and is home to a number of well-known names – includng Howard Rosen in Toronto (its global international arbitration practice leader); Chris Osborne in London (co-chairman of Europe, Middle East and Africa); and James Nicholson in Paris. Osborne and Nicholson made a list of the most respected experts working out of Europe in the most recent Who’s Who Legal (ranking second and third repectively). It’s worth noting that FTI Consulting is home to the highest number of Who’s Who Legal-recommended experts in the graph (with 17 individuals appearing in that book). It’s worked recently with Freshfields Bruckhaus Deringer, White & Case, Skadden Arps Slate Meagher & Flom, King & Spalding, Three Crowns and Jones Day, to name just a few.
The Brattle Group took part in 24 hearings in the past two years. Those cases included expropriation, breach of contract, failed business transactions, auction and trade related matters. The firm’s president is Alexis Maniatis who is highly sought after. Other names to know are Darrell Chodorow (who leads the international arbitration practice) Richard Caldwell, José Antonio García and Carlos Lapuerta. In one recent, private matter, evidence from Caldwell and García was accepted completely by the tribunal, which awarded 100 per cent of the amount they had identified (the dispute was about an investment in European car parking). Carlos Lapuerta and Brattle academic advisor Professor James Dow contributed a significant defence “win” in Rompetrol v Romania, where the tribunal found their side liable for the breach of a bilateral investment treaty but then, persuaded by the Brattle Group experts, decided that no loss had actually been proved.
Compass Lexecon experts testified in 23 hearings and gave a further 35 opinions. The firm has become much better known in international arbitration since it acquired a number of elements from LECG, in 2011, which greatly increased its reach. The firm was retained by the advisers to Repsol after the nationalisation of its Argentinean assets in 2012; Repsol achieved a $5 billion settlement in April 2014. Compass Lexecon experts on that matter were Manuel A Abdala and Pablo T Spiller who worked closely with Freshfields Bruckhaus Deringer, Marval O’Farrell & Mairal and Uría Menéndez. In all 15 members of the practice are in Who’s Who Legal, the second-largest contingent in our graph.
Accuracy, meanwhile, is a 280-expert organisation with offices around Europe, in Canada and India, and soon in Singapore. Its experts testified in 15 hearings and provided reports in a further 80 cases. It is home to Hervé de Trogoff who is regarded as an expert on delay in both manufacturing and construction, and Erik van Duijvenvoorde, who has 25 years’ experience working in disputes. It’s also home to Roula Harfouche, who has over 16 years’ experience in damage assessment and business, share and IP valuations in dispute contexts. In recent years members of the firm have worked alongside clients such as LVMH, EDF and The Carlyle Group, as well as law firms such as Latham & Watkins, White & Case, Jones Day and Lalive.
Grant Thornton is a more diversified firm than some in this research. That means that as well as offering members familiar with the international arbitration process, it can also pull in expertise from units that specialise in private equity, capital markets, and sectors such as banking, mining, insurance and power. Members of the firm testified in 14 hearings and provided opinions in a further 14 matters. Four are ranked in Who’s Who Legal. Will Davies leads the team from the UK, and Colin Johnson is head of international arbitration and focuses on energy and major projects. The firm also boasts John Ferro in New York and UAE head Hisham Farouk. The practice was recently retained by Standard Chartered Bank (Hong Kong) in its ICSID case against Tanzania Electric Supply Company Limited. In this case, Colin Johnson gave expert opinion on quantum and project financing and was cross-examined twice, at different hearings. Hisham Farouk, meanwhile, was recently cross-examined by counsel and arbitrators on damages and delay analysis in a US$100 million matter.
Alvarez & Marsal has 11 experts recommended in Who’s Who Legal. They include Luke Steadman in London, Laureen Ryan in New York, and Dean Graves in Houston. The firm’s experts have testified in eight hearings during our research period and advised on a further 22 cases on a wide range of disputes.
A number of other firms took part in the research but don’t appear in the graph. The following in particular deserve a mention.
Haberman Ilett was founded in 2013 by Philip Haberman and Frank Ilett. The firm appeared in 12 hearings, and wrote opinions and so on for another nine matters, over the past two years. Haberman himself features as one of the five most highly regarded experts in Europe in Who’s Who Legal. His CV shows he has given oral evidence and been cross-examined more than 50 times before several tribunals. The firm views its smaller size as an asset by making it less prone to conflicts of interest.
Global Financial Analytics is home to Rory Walck, one of the most highly recommended experts in the US according to the most recent Who’s Who Legal. He has personally testified in eight hearings on damages and valuation matters, as well as being in a further two cases which reached a settlement. His practice encompasses commercial and investment treaty arbitration.
Tim Hart at Credibility International testified in seven hearings and was in a further four cases.
Toni Pincott, Dr Richard Hern and their colleagues at NERA Economic Consulting testified in five hearings.
David Ehrhardt and Nils Janson of Castalia appeared in six hearings between them in the past two years. Founded in 1980, Castalia has a particular focus on the economics of regulated industries (energy, water, transportation and telecommunications.)
At Time | Quantum Expert Forensics, Christopher Ennis testified at four hearings in the past two years as well as advising on a further eight cases. Ennis has also seen the disputes process from the position of arbitrator, adjudicator and mediator. He focuses on construction or infrastructure and has recently worked for Vinson & Elkins, White & Case, Debevoise & Plimpton, and Ashurt.
At BDO, Gervase MacGregor has testified in one hearing in the past two years and worked either alone or alongside colleagues on a further six matters. MacGregor is head of forensic services in London and is particularly well known for his work on financial services and energy claims.
At Cohen Hamilton Steger & Co, Peter Steger in Toronto appeared in four hearings in the past two years. He has a particular expertise in IP valuation, and the valuation of private companies in disputes, among other areas of work.
A number of well-known firms couldn’t be included in the graph because of lack of data. They include:
- AlixPartners, which has four of its people selected to be in Who’sWho Legal, including Kai Schumacher who polled especially well, according to the researchers. Schumacher joined AlixPartners in Munich in 2014 and works alongside London-based Andrew Grantham, who leads the financial advisory services practice.
- Berkeley Research Group, where Richard Boulton QC is on the books. Before retraining as a barrister, Boulton spent 20 years at Arthur Andersen, including three years as the number two executive worldwide. He was appointed Queen’s Counsel in 2011, just eight years after being called to the bar. He is one of 10 experts at Berkeley Research Group in the Who’s Who Legal list, of whom the practice’s leader David Teece is possibly the most prominent.
- Deloitte, where Simon Cuerden, Philip Rees and Andrew Flower are all well-known names. Cuerden heads the disputes practice of Deloitte Forensic in the UK and provides advice in respect of loss of profit and damages claims, while Flower is global head of the firm’s dispute consulting service line. Philip Rees’ recent work includes advising an arbitration tribunal in respect of the value of an Eastern European bank.
- Ernst & Young, where five experts are in Who’s Who Legal including Richard Indge, leader of the UK dispute services team with over 20 years’ experience in claims and forensic accounting. Maggie Stilwell and Trevor Dick are also recommended for their expert witness work. Among the law firms Ernst & Young has worked with recently is Linklaters.
- KPMG, which has 10 experts in Who’s Who Legal. They include the well-regarded Kathryn Britten who has written reports and given oral evidence in many cases, Jean-Luc Guitera (head of the forensic department in France), and Nicholas Good, in the London market.
- Navigant, home to the prized Brent Kaczmarek who leads the firm’s international arbitration group. He has been in a series of headline-making ICSID hearing claims of late, in which the talking point afterwards was all decisions taken on valuation (the Tidewater, Gold Reserve and OI European Group cases). In the OI case, the company won more than US$455 million, which is thought to be among the largest ICSID awards on record. Five additional experts made the Who’s Who list from the firm.
- PricewaterhouseCoopers, home to 12 experts who are well regarded enough to have been included in Who’s Who Legal. Gerry Lagerberg leads the international arbitration practice there, and is a well known figure. John Fisher is head of the firm’s disputes practice and has over 20 years’ experience in advising clients and is also well known. His recent experience includes acting as an expert in a billion-dollar SIAC arbitration over the termination of a long-term infrastructure development project.
GAR plans to make this survey of expert witness firms a regular item. If you have suggestions on how it ought to be developed please write to April French at firstname.lastname@example.org.