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Guide to Expert Selection

Between the tight deadlines, the banking jargon and markedly heterogenous offerings, solicitors have a tough task of finding the right fit for their case. To help you, we have categorised experts into three distinct types: Industry Experts, Professional Experts with Industry Experience and Professional Experts without Industry Experience. Each of these different types of expert have pros and cons. Our goal is to make that task of expert identification and selection simpler. In this article we explain our views of these different types of expert, and the circumstances where one type is preferable to another.

A major goal of this site is to help you find the right banking expert witness. It is an unregulated area (that arguably would suffer from regulation) and getting it right is important. From solo practitioners, to blue chip consulting houses, and from those with direct industry experience to those who rely on research and second hand experience, there is a very diverse spectrum of offerings in the expert witness market place, each with benefits and hazards. 

This the first in a series of articles on the expert landscape and some of the criteria to be considered during the expert selection process. To learn more about navigating the space, peruse our library and become an expert on the selection of experts.

Like many industries, banking and finance are continuously evolving, and sometimes at a heady pace. The primary factor that this site uses to distinguish between experts is the degree of direct industry expertise they have in a given niche of banking. 

For that reason, substantial work has gone into tagging experts on the site with the direct experience that they have. When using this site, all the search terms will identify experts with direct experience in that field. 

At the other end of the spectrum are professional expert witnesses. They often have little or no direct experience in banking, and largely produce research led reports. By simply searching for the term ‘Expert Witness’, you will identify professional experts, who are usually willing to produce reports on a wider range of banking topics than they have direct experience in.

And it is of course a continuous spectrum between the professional expert witness and the industry expert. There are a swathe of ex-banking practitioners, who were direct experts, but with time have become less current in their niche, and transitioned toward being a generalist professional expert. In tagging these experts, we are consistent with the principles of only attaching tags for areas where they have direct experience. The following sections provide more detail about the different categories, their advantages and disadvantages. 

The Industry Expert

The primary value of Expertease.Tech is that it lists Industry Experts who are willing to act as expert witnesses in a litigation, and who are not listed elsewhere or generally active as professional experts. This type of person is usually delivered via search driven solutions that identify the needs of the case and seek out experts who can speak in detail about the issues in question. 

When done well, experts have sat in the exact seat in a bank that speaks to the issues in litigation and have a depth of understanding that is unparalleled (except to others who have also sat in that seat). 

Often these individuals are new to expert work, and so need to be part of a process that inducts them into the expert space, and supports them with various aspects of report production (unlike the professional experts, who produce reports as part of their offering). Expertease.Tech operates such an induction process.

However, their direct and current knowledge of industry has two benefits. The first is that they will be more insightful about the issues. Experts are needed because there is a grey area that the court needs explained. Those with deep knowledge of the respective sector can shed light on nuance that non-industry experts do not know. The second valuable aspect of industry experts, and arguably as important if not more important, is that they are more likely to be able to assist with disclosure and other more potent aspects of the litigation process, as the have more current knowledge of the contemporary documentation framework and processes. 

The Professional Expert (and the two types)

Professional experts generally are career expert witnesses, who will be willing to write reports on subjects that they do not have direct experience in. This is done by carrying out research on the sector and documenting the findings. Over two decades ago, prior to the age of the internet and the changing of the banking industry with the Great Financial Crisis, this type of expert witness would have been normal. The internet has now made it possible to engage Industry Experts as described above, giving lawyers a really diverse selection. There are two types of Professional Expert: (a) those with Industry Experience and (b) those without Industry Experience.

The Professional Expert, with industry experience

These are often an ex-banker or a stable of ex-bankers who have gone into expert witness work, they have the benefit of having worked in a bank, though their experience may be dated. 

Over the time practicing expert witness consulting, they would address topics that are quite far from the areas they practiced directly in industry, often by incorporating external research (in much the same way the experts with no experience would). 

Their experience in industry means that they are inherently more capable of discussing industry than their non-experienced experts competitors, but they can lack the protective structures that prevent poor outcomes, and some of the most prominent expert disasters have originated from this type of consultant, such as the LIBOR expert scandal and the [  ].

That said such disasters are remarkably rare, and an individual or group with a good track record, are often better than the purely professional experts. 

Experience in banking, and better contacts in the space means they retain substantial familiarity with the industry, and can access better research through their better network. 

An experienced outfit in this space would usually be a better choice than the purely professional expert, though their experience can be dated. 

The Professional Expert, with no industry experience

These are typically academics or partners at major consulting firms. They may have been engaged by banking clients or done research on banking issues, but have never worked day in and day out in a specific banking job. 

Where they have done extensive expert work, they are very good at engaging with the client’s issues, likely take a professional, tactical approach to advising the client on potential opinions and will under take the necessary research to fill in the inevitable gaps in their knowledge. 

From the perspective of a litigator defending a bank, they can be an asset. Often the defence has to deny affirmative assertions about facts. E.g. ‘these derivatives are particularly leveraged and speculative’, and an opinion that essentially says ‘in my experience (which is limited) I do not consider these derivatives to be particularly speculative’ - i.e. their lack of experience in industry, allows them to deny facts. This leaves the claimants lawyers with the unattractive strategy of challenging the experts credentials. 

Reports delivered by this type of expert are largely constructed on information in the public domain and as a result are not particularly insightful about industry and may not actually say very much. However, they can be very professional and do the job the are intended to do (specifically if engaged to deflect the argument), particularly when delivered by a consulting firm with a recognisable brand. 

The danger of these consultants is that they are so far out of touch, every now and again, on points that are demonstrable, they can make enormous blunders that result in their report being disregarded. Consulting firms increasingly address this risk by outsourcing particularly technical aspects of the report, to specialist firms. 

However, with the large brands come tried and tested consulting frame-works (like four eyes process, on each report), to attempt to prevent poor outcomes, though those processes are of course are an additional cost burden to the client.

Finally, these type of experts are fantastic when the client is in a bind and can’t engage an expert, as for a price they will research and engage with any subject and know how to navigate the adversarial expert landscape well. 

In the next part, here, we discuss considerations litigators should take into account when making assessments of suitable experts. We will also engage with how litigators should assess the suitability of these different types of expert for their case.

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