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Being a litigator is a specialty
Preparation, cross-examination, and the habit of finding a world-class expert and studying under them transfer from one subject to the next. That is why a trial lawyer can handle securities fraud, entertainment, trust, or probate cases alike. Mathew Rosengart calls himself a proud generalist and treats being a litigator as a specialty in itself, a toolkit he built as a federal prosecutor and through his time with Justice Souter.
Take a high-profile arbitration in New York where Ronald Lauder and about 10 other centimillionaires and billionaires claimed Credit Suisse had misrepresented its promise of sophisticated hedging techniques. He began by searching online for what the term meant, found a world-class expert, and studied swaps, straddles, strangles, and interest rate swaps. For a few months, nobody in the country knew more about sophisticated hedging techniques than he did, including the expert the claimants had hired. He cross-examined that expert, and he won.
How do lawyers cross-examine an expert witness?
Expert witnesses give opinions built on data and assumptions, and cross-examination is the main tool courts rely on to test them. In Daubert v. Merrell Dow Pharmaceuticals in 1993, the Supreme Court described vigorous cross-examination and contrary evidence as the traditional means of attacking shaky but admissible evidence. A cross-examiner who knows the field can probe which assumptions the opinion depends on and how sensitive the result is to each. Federal judges also screen expert testimony before trial under Rule 702 of the Federal Rules of Evidence.
Why do financial disputes go to arbitration?
Many financial contracts contain arbitration clauses, and the Federal Arbitration Act of 1925 directs courts to enforce them. Arbitration is private, so the hearing and the record are not open to the public the way a trial is. The parties choose the panel, which often includes people with industry experience, and the decision can be appealed only on narrow grounds. Brokerage disputes in the United States are commonly heard in arbitration run by FINRA, the industry's self-regulatory body.
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