a very low fair market value (i.e., $25 to $100 at most). Then I asked him very specific questions. “So, there is no way card 206 on this inventory could ever sell for $2,000, $1,000 or even $500?” I asked similar questions about each of the 10 cards. Then, I asked him “Would you be surprised to know card 206 did, in fact, sell for $1,000 just 14 months ago?” I showed him the sales records created by Johnson provided by the customer and offered those records into evidence. One by one, we offered the impeachment evidence of actual sales records feeling that 10 documented sales of values far in excess of what Johnson’s expert testified to would be sufficient to impeach both him and his expert. After cross examination was done and it was time to present our case, the question was how to get into evidence all of our analysis, the discount rate and our documentation to support our $500,000 value without an expert. We already had the excel spreadsheet exhibit ready and marked, and the supporting documentation. I chose to call my legal assistant, Barbara Green, as a witness to get those exhibits in. The other lawyers in my office were not very confident we could pull this off, but I thought of every objection that could be made and simply disposed of them by the introductory questions. I established that Green worked for me, had been working in Excel spreadsheets for decades, and she was not testifying as an expert nor was she testifying to give an opinion. I also established she was there to testify about math. Green testified as to: • How she took the inventory and sales records and transferred all the data to the spreadsheet • How she followed an Excel procedure to create a formula to subtract the sales price from the inventory price, showing how much less the card sold for than was listed • How she applied simple math to find out what percentage of the inventory price the actual sales price was • How she the used simple math to average all the known sales to come up with an average discount rate • How she applied that discount rate to come up with an adjusted value for all the unsold cards • How, using the spreadsheet, she was able to come up with a total adjusted number of the remaining cards based on that data. In many ways, we followed the same procedure used to establish an expert’s methodology, but, in this case, it was to establish that no expert knowledge was needed to do math. It was all simple math the judge could check himself and verify. She was not giving an expert or lay opinion. She was merely stating a fact that if the judge wanted to value the remaining cards based on the historical sales data and Johnson’s insurance valuation, the spreadsheet provided all the numbers needed to get to that answer. Then we offered all the sales records supporting the spreadsheet. Over objection, the judge admitted the exhibits into evidence. The cross-examination of my assistant by the opposing counsel was an attempt to show she was not an expert. This See Expert Witnesses p. 28 27 Trial Lawyer | Summer 2024
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