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Insights from an Before a trial, an expert is deposed by the opposing
attorney, who needs to understand the relative strength
expert witness and weakness of the expert, as well as how the expert will
opine. The attorney may bring up past information to make
a point or discredit the expert. In my experience, attorneys
ask the same questions, at different times, to see if there is
By Ken Musante any discrepancy in responses, which could then be used to
Eureka Payments LLC discredit the expert.
egal complications are a bane to business owners. Because much of our industry is based on the Visa Inc. and
You cannot eliminate them, but you can minimize MasterCard Worldwide rules, attorneys sometimes require
them. Solid contracts (properly reviewed by an individuals who are experts in certain aspects of those
L attorney), trained managers and clear job descrip- rules, as they existed at the time of the dispute.
tions serve to minimize the possibility of legal entangle-
ments. Litigation costs are enormous for defendants and Additionally, although payment processing practices
plaintiffs, both of whom also must handle the lawsuit's are known to individuals within our industry, they are
distractions, schedule time for it and face an uncertain foreign to others. It can be difficult to describe common
outcome. settlement, residual or reserve processes to those who do
not understand common industry terms. Further, the expert
Should a claim proceed, discovery ensues; both sides must form and maintain an opinion without referring to
request documentation and information from the other and any specific documents; after all, the expert is providing an
depose individuals who have pertinent evidence. Experts opinion.
are sometimes hired because each side is making opposing
claims, and a judge or jury, with little knowledge of our The deposition process
industry, must make a determination. Hiring an expert
witness makes the process more expensive, but it may be During a deposition, all comments are recorded. Typically,
necessary. Recently, I served as an expert witness in two a stenographer types every word said. Sometimes a
cases and gained further insight into the process. deposition can be videotaped. Upon compilation of the
testimony, the expert is given an opportunity to amend
Our industry is little understood by those outside of anything that was said, but any correction is subject to
it. Making a claim that you were treated unfairly or in a further cross examination and may weaken the expert's
manner inconsistent with industry practices requires testimony.
that you clearly state what the industry norms are.
Industry contracts are full of terms like Acquirer, Industry Further, counsel may object to questions asked during the
Standards, Processing and Settlement. These are sometimes deposition. Typical reasons for objecting are: the question
used to mean different things and are either unclear or not has multiple parts, it is based on information that is not
understood by those outside of our industry. in evidence or it was previously asked and answered .
Regardless, experts are usually advised that they can
The expert's role respond if they understand the question, but the objection
is noted on the record.
Regardless, though the arbitrators of a dispute (judges,
arbitrators and juries) are outside of our industry, they The entire discovery process is expensive, time consuming
determine which side is right. Some cases hinge on the and tedious. Perhaps the greatest thing businesses can do
expert's ability to convince the judge or jury of his or her to avoid legal entanglements is know their partners. Doing
opinion. I have found that both your answers and your business with like-minded individuals and companies
perceived confidence in those answers are critical. While will ensure that when issues arise there is a commitment
you are hired by an attorney for either the plaintiff or the to solving them amicably rather than pursuing a solution
defendant, your hiring attorney cannot tell you what to say. through our courts.
Technically, as an expert, you cannot express opinions on
specific facts until you are hired. While employed as an
expert, your material, notes, emails and all documents
reviewed are discoverable and available to both parties. Ken Musante is President of Eureka Payments LLC. Contact him by
Anything you use or prepare is fair game for both parties phone at 707-476-0573 or by email at kenm@eurekapayments.
and must be presented if requested. com. For more information, visit www.eurekapayments.com.
28
Insights from an Before a trial, an expert is deposed by the opposing
attorney, who needs to understand the relative strength
expert witness and weakness of the expert, as well as how the expert will
opine. The attorney may bring up past information to make
a point or discredit the expert. In my experience, attorneys
ask the same questions, at different times, to see if there is
By Ken Musante any discrepancy in responses, which could then be used to
Eureka Payments LLC discredit the expert.
egal complications are a bane to business owners. Because much of our industry is based on the Visa Inc. and
You cannot eliminate them, but you can minimize MasterCard Worldwide rules, attorneys sometimes require
them. Solid contracts (properly reviewed by an individuals who are experts in certain aspects of those
L attorney), trained managers and clear job descrip- rules, as they existed at the time of the dispute.
tions serve to minimize the possibility of legal entangle-
ments. Litigation costs are enormous for defendants and Additionally, although payment processing practices
plaintiffs, both of whom also must handle the lawsuit's are known to individuals within our industry, they are
distractions, schedule time for it and face an uncertain foreign to others. It can be difficult to describe common
outcome. settlement, residual or reserve processes to those who do
not understand common industry terms. Further, the expert
Should a claim proceed, discovery ensues; both sides must form and maintain an opinion without referring to
request documentation and information from the other and any specific documents; after all, the expert is providing an
depose individuals who have pertinent evidence. Experts opinion.
are sometimes hired because each side is making opposing
claims, and a judge or jury, with little knowledge of our The deposition process
industry, must make a determination. Hiring an expert
witness makes the process more expensive, but it may be During a deposition, all comments are recorded. Typically,
necessary. Recently, I served as an expert witness in two a stenographer types every word said. Sometimes a
cases and gained further insight into the process. deposition can be videotaped. Upon compilation of the
testimony, the expert is given an opportunity to amend
Our industry is little understood by those outside of anything that was said, but any correction is subject to
it. Making a claim that you were treated unfairly or in a further cross examination and may weaken the expert's
manner inconsistent with industry practices requires testimony.
that you clearly state what the industry norms are.
Industry contracts are full of terms like Acquirer, Industry Further, counsel may object to questions asked during the
Standards, Processing and Settlement. These are sometimes deposition. Typical reasons for objecting are: the question
used to mean different things and are either unclear or not has multiple parts, it is based on information that is not
understood by those outside of our industry. in evidence or it was previously asked and answered .
Regardless, experts are usually advised that they can
The expert's role respond if they understand the question, but the objection
is noted on the record.
Regardless, though the arbitrators of a dispute (judges,
arbitrators and juries) are outside of our industry, they The entire discovery process is expensive, time consuming
determine which side is right. Some cases hinge on the and tedious. Perhaps the greatest thing businesses can do
expert's ability to convince the judge or jury of his or her to avoid legal entanglements is know their partners. Doing
opinion. I have found that both your answers and your business with like-minded individuals and companies
perceived confidence in those answers are critical. While will ensure that when issues arise there is a commitment
you are hired by an attorney for either the plaintiff or the to solving them amicably rather than pursuing a solution
defendant, your hiring attorney cannot tell you what to say. through our courts.
Technically, as an expert, you cannot express opinions on
specific facts until you are hired. While employed as an
expert, your material, notes, emails and all documents
reviewed are discoverable and available to both parties. Ken Musante is President of Eureka Payments LLC. Contact him by
Anything you use or prepare is fair game for both parties phone at 707-476-0573 or by email at kenm@eurekapayments.
and must be presented if requested. com. For more information, visit www.eurekapayments.com.
28
