NERA Economic Consulting

GAR 100 Expert Witness Power Index – and other tables

Are professional expert witnesses a “good thing”? If you make your living as an expert gun-for-hire, isn’t it harder to stay … objective?

In fact, there’s good evidence of the opposite: that those who testify become more scrupulous about what their positions.

A leading arbitrator, Doug Jones AO, put it this way, speaking at a GAR Live Dubai: “Repeat experts [...] are a good thing [because] they get to realise that their own personal reputations depend on avoiding extreme positions which are unsustainable”.

“They get to understand that they [are] more effective if they put forward fair propositions that they personally find intellectually justified,” he explained.

Once burned, twice shy, as the saying goes.

Repeat-player experts are also a boon when building the case, he reported. From his days as a counsel he remembered how “having a view from a battle-hardened expert could help to impart a more realistic view of the case” to a truculent client.

“You could talk them down from an extreme position. It’s a very positive thing for the process,” Jones said.

Of course, there are exceptions – stories circulate, from time to time, of unscrupulous experts taking diametrically opposed positions in different cases, which is possible thanks to arbitration’s confidentiality (leading to discussions of how to police such behaviour).

But for the most part, giving evidence repeatedly appears to forge a more principled and thus credible expert.

Of course, there are different types of expert – it’s not always just about lost profits and damages. Do those other types of expert need to be battle-hardened too?

Ideally, it would appear. Consider a dispute about a project to build and operate a gas processing plant in, say, Nigeria. The claimant in such a dispute might need three or four experts: an engineer or construction specialist, to speak to project management points; a chemist to speak to the quantity of gas the plant would extract; an oil and gas economist on how much that gas might fetch on the market; and finally, a forensic accountant to present all the above in a set of convincing accounts.

If one side’s experts are all old-arbitration hands, and the others aren’t – what happens?

There’s a good chance the side with ring-craft gets an upper hand. The scenario above isn’t in fact a hypothetical; it’s exactly what happened in one recent case, which duly produced one of the largest reported commercial arbitration awards – around $9 billion owed by the losing side.

In a conversation with GAR, a lawyer for the victor credited a mismatch between the experts – and in particular the powerful performance of his team from well-known expert witness shop Berkeley Research Group – as a big part of the result.

He said his experts’ team – skilled in four disciplines – mobilised faster and produced a report within a tight timetable that put the other side on the back foot, “from which they never really recovered.”

Furthermore, the other side’s experts had less hearing experience, which meant at times – he believed – they fell into the trap of over-reaching.

 “They lost credibility as a result.”

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If “repeat” players are better, and you may require several different types, how can those who are the genuine article, rather than just pretending, be found?

The report you are reading – the expert witnesses’ section of the GAR 100 and the tables in it – should help.

It uses the same lens as the GAR 30 to identify the most active and sought-after expert witness firm: it takes the number and size of a practice’s hearings and uses those to make a ranking. As with this publication’s survey of law firms, we used a research period of 1 August 2017 to 1 August 2019.

We present various tables:

• Table 1 is the GAR 100 Expert Witness Firms’ Power Index. It’s essentially the GAR 30 – but for experts. It shows the value of a firm’s hearings, on average; how many hearings it took part in over two years; and how many members of the firm are good enough to be listed in the current Who’s Who Legal: Arbitration. These scores are combined into a ranking.

Other tables focus on a particular quality or type of dispute:

• Tables 2a and 2b are an extract of the Power Index, showing the number of members in our sister publication, Who’s Who Legal: Arbitration (2020). Table 2b compares this number to the total number of hearings conducted by each firm.
• Table 3 shows the number of cross-examinations faced by members.
• Table 4 shows the total number of investor-state arbitrations versus commercial arbitrations the firm undertook.
• Table 5 shows the total number of energy arbitrations and the number of those that were oil and gas. 
• Table 6 shows the total number of construction arbitrations a firm undertook.

Where does our data come from?

This year, how the Power Index is calculated changed a little (to make it even more like the GAR 30). As part of that, we shifted from using information provided by the GAR 100 law firms, to asking expert firms to complete a questionnaire of their own. So now we have sight of more of what they do; our data is no longer just the work for the GAR 100 law firms.

Of course, this comes with a new caveat. This is the first year of the new regime. Inevitably, some firms have been faster at getting to grips with it than others. It may be that some of the placings are explained by that simple fact: some firms were more able to lay their hands on this information than others.

The Power Index ranks expert witness in the same way we rank the law firms in the GAR 30: by looking at the volume and value of two years’ worth of hearings, and the reputational clout of their members.

This is something of a change from previous editions of the Power Index, which did not place as much weight on volume or reputation. Previous editions were tilted more towards the value of the work.

We use the 2020 editions of Who’s Who Legal: Arbitration and Who’s Who Legal Thought Leaders: Arbitration as the proxy for reputation.

The performances in these categories are standardised (using T-scores) and also given a P-value (to adjust for any differences in the amount of data feeding into them), before being combined into a final score. The scores are weighted too. Within the reputational element, a particular weight is given to what we call “thought leaders” – senior figures who receive the most votes during the Who’s Who Legal research.

This adjustment is on top of allowing hearings from non-GAR 100 firms to count (discussed above), potentially a bigger change.

So, a double methodological change.

A few preliminary observations:

• FTI replaces stablemate Compass Lexecon  at number one;
• Accuracy and Delta Consulting are our highest climbers;
• some well-known names don’t appear this year (failure to supply information);
• four firms appear for the first time; and
• volume is now a more important factor in who does well, along with star names.

One to five

In this section of the table we see:

• a new number one; and
• three new names in the top five.

The top five this year looks very different from 2019. Out go The Brattle Group, Haberman Ilett and Navigant. In come PwC, Berkeley Research Group and Secretariat International. Meanwhile, FTI replaces stablemate Compass Lexecon at number one.

Many of these changes arise from the change in methodology – chiefly that firms supply their own data this year (rather than our scraping it from the law firms’ responses).

Navigant failed to submit information so wasn’t ever in contention.

Haberman Ilett, meanwhile – a former number-one firm in the index, and this year just outside the top five – has always depended on the high value of its work for its ranking, never the volume of cases it carries (it is smaller than some of the shops listed). Now that the volume of work is more of a factor (and its average has slipped – a bit), it’s lower down. (Haberman Ilett, incidentally, is now part of the same group as Blackrock Expert Services. But the brands trade separately, so we rank them apart.)

But not all the differences are explained by methodology.

In the case of, say, The Brattle Group – its numbers are just lower. Last year it had a far, far higher average, and 33 hearings. This year its average has gone down (to $191 million), and so has the volume of cases.

Volume is now more important to the final score, in two ways: volume of hearings; and volume of peer-recognised members.

Volume helps to explain FTI’s rise to number one (leapfrogging stablemate Compass Lexecon). The two practices have similar average hearing values. But FTI carries a volume of cases nearly three times that of its sister brand. They are the two highest firms in the Who’s Who Legal column.

Secretariat International is up seven places, on the back of the highest average case value in the index, and much greater volume of hearings than a year ago (69 hearings, the second-highest figure in the table).

Berkeley Research Group and PwC also both benefit from our shift to self-certified data. Both have lower average scores than a year ago, but a higher numbers of hearings. Berkeley Research Group appears to benefit more from the change of data supply: its hearings figure climbs from 10 to 44 – nearly quadruple – suggesting that a greater portion of its work is for non-GAR 100 practices than PwC (which saw its hearings number only double).

It is worth noting that since our last edition, BRG has added a number of experts with energy arbitration expertise - including Daniela Bambaci, Santiago Dellepiane, Greg Harman, Peter Bird and Kenny Grant.

Six to 10

Changes this year include:

• Haberman Ilett is now eighth;
• Accuracy climbs 12 places; and
• there are three all-new names for this section of the table.

The second section of the table also has a completely different look this year. Four of last year’s six to 10 are absent now – KPMG, StoneTurn, CEG and Cornerstone Research (which all failed to submit information).

In their place we have Accuracy, this year’s highest climber; Alix Partners, which also rose strongly; and Alvarez & Marsal, along with The Brattle Group and Haberman Illett, who drop in from the tier above.

All are entirely new to the top 10 of the Power Index.

Accuracy is this year’s second-highest climber – rising 12 places on last year (from 18th to 6th). The team, formerly part of Arthur Andersen, posted 64 hearings this year compared to 10 in 2019 (albeit when we gathered data a different way). Since three-fifths of the firms retaining Accuracy are GAR 100 entities, the methodological change cannot entirely explain this improved score. Rather, the firm seems to have been in a sweet spot of hearings for energy, mining and construction matters – and within energy, especially Spanish solar energy investment cases in which Accuracy works with Spain’s in-house legal team. This strand of work alone contributed 10 hearings to its score.

Alix Partners also rises strongly thanks to a far greater number of hearings than a year ago – 42, compared to four. Unlike Accuracy, this set does not include a cluster of similar matters. Indeed, the Alix hearing set is notable for its diversity of industries and jurisdictions (and for the relatively low component related to construction).

Haberman Ilett’s average hearing value is (substantially) down on a year ago, but in volume terms is ahead of previous performances. In part this might relate to a dip in the amount of energy-related arbitration compared with the previous research period. The practice is still clearly vibrant.

Alvarez & Marsal’s average value is also down – but its volume-of-hearings score is also way up: 32 this year, compared to 17 in 2019. Oil and gas work is a greater component than for Alix; but, like Alix, Alvarez & Marsal didn’t handle much construction work.

The Brattle Group’s portfolio is heavily weighted to investor-state matters (10 out of its 11 scoring matters were investor-state). We have listed its average hearing value as substantially down on 2019 – but further investigation reveals the firm omitted its work on the Tethyan Copper v Pakistan investment case (The Brattle Group worked with Debevoise & Plimpton). The case ended in a £5.9 billion award for The Brattle Group’s client. Had that matter been included in the data, The Brattle Group’s ranking would have been far higher.

11 to 15

In this section:

• Delta Consulting Group climbs 13;
• BDO and Deloitte are roughly where they were last year; and
• NERA and HKA also move up.

The shifts in this section of the table are skewed by some tight bunching in this part of the ranking last year: four firms shared ninth place; and two (BDO and Deloitte) shared 13th. So it is hard to speak of firms being anything other than approximately where they were placed last year.

That said, in this edition BDO is slightly higher (at 12th) and Deloitte slightly lower (15th).

Deloitte’s average hearing size figures are slightly down, but its volume figure is up: 42 hearings this year, versus 30 in 2019. BDO, too, has seen its average hearing value go substantially down.

Deloitte’s hearings featured 20 or so different experts and covered a range of industries and rules. Around a quarter were construction, and a similar proportion were investor-state.

BDO’s 11 hearings came from seven individuals and were weighted towards ICSID matters, including a clutch of Spanish solar matters. Its average was supressed by two particularly small items, and as such may not be wholly representative of the firm’s current practice. Astute readers will also note that it is the lowest firm in the ranking to boast a “thought leader” (Gervase MacGregor). In fact, the boost this detail gave to BDO’s score explains why it’s above some other practices in this section.

It is also worth mentioning that BDO, in its submission, counted hearings that featured multiple experts as single table entries; some others, though, broke those out into a hearing per expert. BDO’s volume-of-hearings score could be considered a little higher than 11 – closer to 22 or so.

The stronger moves are by NERA, HKA and Delta Consulting Group in particular.

Delta climbed 13 places, from 27th last year to 14th this year. Its figures are far higher in this edition: US$528 million as an average, compared to US$71million a year ago; and it also has a larger volume of hearings. Those hearings had a construction and oil and gas slant, and were geographically more likely to be from the US or Latin America than many practices.

HKA climbed six places to 13th. Its volume of hearings rose from 21 to 56 in the table, with the majority being construction matters, and the next largest proportion being related to energy and natural resources. Much of the work came from Asia or the Middle East.

NERA, in 11th, rose four places. Its average hearing value rose from US$352million to more than US$1 billion, which partly explains the improved position. It also registered five more hearings than a year ago. Those hearings included investor-state matters and spanned North America; Western and Eastern Europe; and Africa. They also covered more industries than many rivals.

That said, NERA’s average score was boosted considerably by a single $9 billion matter – which also wasn’t, strictly speaking, international arbitration. Tougher accounting policies planned for next year would likely drop NERA’s average hearing value back to its previous level.

NERA was also helped by an impressive seven names in Who’s Who Legal.

16 to 20

In this section of the table:

• The firms are “hurt” by their lower scores in the reputational columns;
• EY is the big climber; and
• We have two new entrants

The firms in this section of the table boast comparable average hearings sizes to the tiers above, and some of them have around the same volume of hearings.

So why are they down here?

It comes down to the reputational component in the formula. Once we reach around 15th place in the table, the number of Who’s Who Legal names at firms, and more importantly the number of thought leaders, completely drops off.

EY is the last strong performer in those columns – with (an impressive) six members sufficiently admired by peers to be included in the current edition of Who’s Who Legal: Arbitration. It has had a good year – and climbs seven places, from 24th in 2019 to 17th. Its average hearing score grew substantially between editions – US$463 million versus US$193 million in 2019’s table – as did its volume of hearings: 30, compared to 14 a year ago. Those hearings are mainly commercial but with around a third being investor-state. They were slanted towards disputes from Asia, Africa and the Middle East.

Grant Thornton’s numbers are also a significant jump on last year. Its average hearing value rose to US$285 million (from US$178 million). More notably, the volume of hearings jumped from 10 to nearer 50. Twenty-two different members of the firm led on those matters (though three have since left). The largest component of those hearings was construction work (20 per cent of hearings), followed by energy and defence. The remaining 60 per cent was an impressively eclectic mix (from agricultural trade to defence, and from family inheritance to technology and football).

Blackrock Expert Services is a newcomer to the table. Its hearing-related scores are commensurate with achieving a far higher position but those excellent scores are currently held back by having fewer experts in Who’s Who Legal: Arbitration edition. That could naturally change with time. Blackrock also recently acquired Haberman Ilett – which trades as a separate brand. Were the strengths of the two organisations combined for the purposes of this table, it would be interesting to see the result. A far, far higher ranking, no doubt.

Claro Group is another new entrant. The name may be new but the individuals behind it are well known. They include Wayne Wilson, who became known originally when at Alvarez & Marsal, and has since built an independent name with law firms who handle some of the largest international energy disputes.

Oxera’s average hearing size is similar to last year’s but its hearing volume has more than doubled – eight matters versus three in 2019. One expert, Min Shi, is responsible for nearly half of those, but four other colleagues also contributed to the score.

21 to 24

Credibility International didn’t appear in last year’s table. It’s been in existence since 2010 and is a favourite of some of the US’s more eminent treaty-arbitration firms. Founder Tim Hart worked on one of the earliest investment cases to produce a large award (CSOB v Slovak Republic; US$866 million for the claimant). He was expert to the claimant. The practice remains weighted towards investment work. Its final score might have been higher if the firm had supplied more complete hearing information. The average hearing value had to be generated by triangulating with law firm questionnaires, which made relying on it statistically riskier than for other firms, leading to a lower score.

Charles River Associates also didn’t supply figures for the amounts in dispute, meaning it failed to reap the benefit of the 36 hearings it conducted during the research period in its final score. One would expect that volume of cases to place a firm higher in the table. Given its popularity with some of the GAR 30 law firms, CRA also appears to underperform in in the Who’s Who Legal column. Despite this lowly finish, the firm is clearly in good health – it has been investing in its UK practice in the past two years, adding among others Colin Johnson, previously one of Grant Thornton’s better-known names.

Frontier Economics continues to appear regularly on serious energy matters, often working with GAR 30 firms. Firms that used it during the recent research period include Linklaters, Baker McKenzie and Squire Patton Boggs.

Measured against its own performance last time, however, its numbers are down (average hearing size is a little lower, and the number of hearings fell from 13 to seven). But some of those hearings featured multiple members of the firm, and another practice may well have booked those cases in twice. So the year-on-year volume score could be seen as approximately the same. If its members registered more during Who’s Who Legal research, at this point Frontier would be much higher.

Analysis Group took part in eight hearings during the research period, and members of the firm were cross-examined by, among others, Philippe Pinsolle (of Quinn Emanuel) and Georgios Petrochilos (of Three Crowns). The practice has an illustrious history in international arbitration work, appearing on a far wider range of matters than many in this table (from banking to IP to sport). It regularly works with some of the leading names in the GAR 30 – including King & Spalding, Debevoise & Plimpton, and Curtis, Mallet-Prevost, Colt & Mosle. Alas, for present purposes the firm failed to include full data on its hearings; and we couldn’t substantiate enough from other sources to create a valid ranking score. So, for that reason alone, they occupy last place.

Finally, Global Financial Analytics – which was just outside the top 20 of the Index in 2019, doesn’t appear at all in the research this year. There’s a good reason: after the merits hearing in Mobil Investments v Canada, which featured members of the firm, the partners of this small shop took a sabbatical, meaning no further hearings accrued in late 2018 or early 2019. Global Financial Analytics is operational again and has booked six new matters – four of which are investment treaty cases. In November 2019 Rory Walck, founder appeared for Vento Motorcycles in the hearing for its $3.5 billion investment claim against Mexico. That, however, fell just outside this research window.

And that’s this year’s Power Index.

Table 2a and b - merits hearings versus reputational clout

Table 2 is a legacy from before we included reputational elements in the Power Index. It was supposed to be a something of a consolation for any firm whose members command great respect that, for whatever reason, hadn’t done well in the index.

That function is obsolete, now that the Index is controlled in part by the Who’s Who Legal and Thought Leader scores.

But it’s still interesting to note which firms are home to the greatest population of respected individuals.

The ranking based purely on Who’s Who Legal and Thought Leader elements would go something like this (with the Power Index ranking in brackets):

Table 2a

This chart has its limitations too; it says nothing about the actual concentration of Who’s Who Legal names. For example, Haberman Ilett is a far smaller organisation than PwC or FTI, but has far more individuals of stature per square metre, so to speak.

But it does at least suggest which firms may be over or under-performing, versus their reputation. Arguably Secretariat has more impressive work scores – volume and value combined – than its reputational clout suggests; while Alvarez & Marsal is the other way around.

There are aspects one can’t control for, when thinking like this. One is how much effort a firm puts into acquiring that market reputation. Teams that don’t need to hunt for work much – who have a good supply of internal referrals or strong institutional clients – may put the same energy into directories and the trappings of recognition.

Table 2b shows the correlation between reputational scores and the volume of hearings – for good measure.

Conclusions are hard to draw. For example, FTI has many more hearings than Compass Lexecon, despite both being similar in the recognition stakes. But then you look at the nature of those Compass Lexecon cases – for the most part investment disputes for or against the crème de la crème of the GAR 30, and you think: well, that sort of makes sense. There’s no obvious conclusion to draw.

Occasionally this list highlights something. FTI and Secretariat, for example, are an interesting juxtaposition. They’re the top two firms for hearing volume. And nearly all of those hearings – 90 per cent – are construction or engineering matters. So they are similar practices. Yet FTI’s commands far more market recognition – 29 Who’s Who Legal names to Secretariat’s eight. Why is that?

Candidly – we don’t know. But there is clearly some key difference.

Secretariat, to give it its due, has three thought leaders – putting it in the upper strata of Who’s Who Legal success – to FTI’s five, which means at the senior end the firms are more similar. Gaining Thought Leader status is arguably more of an achievement.

Table 2b

Table 3 – Number of cross-examinations

Here we look at the response to the question: how often were your experts cross examined? The results are presented in table three, as simple totals unlinked to any value of claim.

The top of the cross-examinations table looks much like the Power Index: FTI and Secretariat, but the other way around.

But otherwise the top 10 is somewhat different.

PWC is one step higher; Compass Lexecon is two places lower.

The big gainers, though, are Accuracy (in third position – three positions higher than in the Power Index); HKA (in sixth – seven places higher); and Deloitte and Blackrock Expert Services (eighth and 11th respectively, each seven places higher than in the Index).

This is because the cross-examination table is largely asking the question: which firms had the greatest volume of hearings (irrespective of value)? These practices, on this occasion, had the largest volumes.

It’s notable that several of them – FTI and Secretariat in particular, but also HKA to a large degree – are slanted towards construction work.

More interesting is the proportion of hearings that included hot-tubbing. The data on this is imperfect (we ask firms to indicate whether a hearing included hot-tubbing in our questionnaire) but it suggests a fair degree of variation. For example, Secretariat’s experts were hot-tubbed around 33 per cent of the time, compared with 21 per cent for Deloitte and Blackrock Expert Services, and only 11 per cent for FTI (although its data on this was particularly imperfect).

Table 4 – Investor-state versus commercial work

Table 4 shows the split between investor-state and commercial arbitration within firms in the survey.

Compass Lexecon carries the highest docket of investor-state cases, with 28 investor-state heaings logged (the same as in 2019). The proporation of commercial work, however, declined – from 29 hearings to 20. As last edition, the bulk of Compass Lexecon’s work is energy related.

Blackrock Expert Services and Charles River Associates are tied second, on this score, having completed 15 investor-state issues each. For CRA that’s an increase of six on 2019, and for Blackrock four. The composition of Blackrock’s work is about the same as in 2019 – a near-even split between investor-state and commercial arbitration. But CRA’s has tilted noticeably towards commercial work – from 50-50 to around 60-40.

Table 5 – Energy, oil and gas work

Table 5 presents the number of energy-related hearings per practice, along with how many of those were oil and gas. It also shows the same figures for 2019.

Intriguingly, the table suggests fewer energy-related arbitrations in this research period compared with the previous one.

That aside, things remain similar to last year – at the top. Compass Lexecon remains the number-one firm for energy with 32 energy-related hearings, of which four were oil and gas.

But now Accuracy is in second place (12 energy-related matters, of which two were oil and gas-related). Accuracy’s largest-value cases were oi and gas disputes – they featured Hervé de Trogoff, Jean-Baptiste de Courcel, Anthony Theau-Laurent and Xavier Chevreux in particular.

NERA Economic Consulting, fifth in this table last year, moves up to third. The work is a mix in terms of subject matter and rules (it’s around 50-50 commercial or investor state). Most of it is, however, Europe-related.

Berkeley Research Group maintains its fifth-place ranking in high position in this table, with Santiago Dellepiane particularly prominent on its energy work (including one claim of US$1.1 billion).

Elsewhere, Frontier Economics achieves its highest finish in this table. Nearly all of its hearings have an energy aspect. Many have a competition-law element, and most of the disputes are from Europe.

Table 6 – Construction

Table 6 identifies work related to construction disputes.

Construction work appears to be on the increase. Our table, separating out construction hearings, shows a rise in the total number of arbitrations: from 261 a year ago to 287. This is the second year that the number has increased (it went up 126 the year before).

FTI Consulting continues to lead the ranks here – reporting nearly the same number of matters as a year ago.

Secretariat International climbs this year’s list from third to second place, on the strength of around 20 more construction cases than a year ago.

HKA Consulting reported about the same number as last year – 30 – but bumps up one place, to third. The majority of its work is in construction sector, with a particular leaning towards work in Asia, the Middle East and Africa.

Blackrock Expert Services has a specialism in the construction industry, as noted earlier. It reported 26 hearings.

Accuracy reported 18 construction hearings, giving its work in the past two years an even balance between construction and energy. That work was solely commercial cases. The energy work, however, was of substantially greater value.

Berkeley Research Group is the notable faller in this year’s version of this chart. It posted 35 fewer construction matters than a year ago – registering 17. It should be noted that this chart doesn’t consider value. If it did, Berkeley Research Group would be much higher, since many of its cases are among the largest reported.

And finally, Deloitte enters this particular table for the first time – reporting 13 construction matters.

We hope you enjoyed this year’s expert-witness survey.

Please send any feedback or suggestions for additional tables we could present to [email protected].

Additional reporting by Charlotte Riley.