Howard Rosen is a managing director with Secretariat and has four decades of experience of advising on all aspects of business valuations, damages quantification and corporate finance-related matters. He has acted as an adviser to private and public companies, regulatory bodies and all levels of government on a wide variety of industries. His work has taken him to courts in Canada and the United States as well as arbitration hearings in North and South America, Asia, Africa, Europe and the Middle East.

Could you describe your career to date?

I have been fortunate over the past 40 years to be in an environment where international arbitration has been expanding in acceptance, scope, complexity, and geography. Starting as a testifying expert in the early 1980’s I’ve been able to grow with this expansion and meet and work with many of the leading lawyers and arbitrators. During this period, I’ve also been surrounded by exceptional colleagues that contributed to my development and expertise. This has afforded me the opportunity to work on some of the most interesting cases and address fascinating problems.

How has the market changed since you first started practising?

The market is much more sophisticated now than it was in the 1980’s. Experts are routinely engaged (which wasn’t the case), which has led to the proliferation of expert firms. Additionally, the ready availability of information has led to the ability to review public sources on cases and experts to better understand approaches to quantifying damages, and consistency of individual experts in providing their opinions.

How has the dynamic between arbitral tribunals and experts changed over the years?

Tribunals seem much more engaged with experts and willing to discuss issues in detail, either in tribunal questions, or witness conferencing. This is a positive development that has led to better reasoned awards.

What steps can younger experts take to improve their chances of getting testifying appointments? Is there an important role to play here for experienced experts?

There is a natural reluctance for parties to hire experts for their first testifying role. I’ve found the best way to develop the next generation of testifying experts is to have them co-sign and co-testify with more experienced experts. Clients sometimes resist this development, but in the end, I believe it is an efficient process that does not materially impact the cost of the expert engagement, and can enhance the effectiveness of the evidence, by allowing each expert to focus on different aspects of the report.

What challenges do you face with the increased volume of data being used in disputes, and how are you navigating them?

With the increase in the availability of data, has come the increase in the sophistication of the tools we use to examine and analyse the data. The challenge for the expert is to ensure there is not undue “reliance” on the analytic tools (the expert must be able to fully explain how they are used, and what the output of the analysis means), and to ensure that the parties and arbitrators can understand, repeat, and rely on the analyses that are created. There is sometimes the “illusion” created by simply using a software tool, that does not add any substance to the analysis.

What are the most significant challenges you are anticipating expert witnesses to encounter over the next few years, and how are you planning to navigate them?

The challenge we face each year is to ensure we are always acting for the benefit of the tribunal. This is something we must remember and rededicate ourselves to each year. In addition, the re-integration into in-person hearings and travel will be a challenge (albeit, a welcome challenge).

What do you most enjoy about your role as a testifying expert?

I believe most experts, at heart, are natural teachers, and this is the aspect I enjoy most. I spend my working life surrounded by skilled and talented colleagues who provide intellectual challenge every day, in an environment where I am retained by a party that has a very real and critical issue to resolve. I get to do this on a world stage in front of some of the best legal minds in the world. What’s not to enjoy?

What is the best piece of advice you’ve ever received?

Work hard, be respectful of others, and never take yourself too seriously.