In any professional malpractice case, whether the target is a lawyer, an accountant, an architect, or another professional, the complaining client must prove that the professional failed to exercise the ordinary reasonable skill and knowledge commonly possessed by the professional, and ‘but for’ the negligence the client would not have suffered the alleged harm.

In defending the case, the professional will inevitably engage an expert from the same field to help prove that the professional acted with the requisite standard of care. Lawyer experts testify for lawyers, accountant experts testify for accountants, etc.

While those experts are very important, we have used our unique expertise as business practices experts to go one step further – and explore the client’s own conduct. The professional expert will try to convince the jury that that the defendant professional did the right thing. Because of our backgrounds as C-Suite Executives, we have been successful in establishing that the client did the wrong thing.

There is an understandable concern that the jury might react negatively, believing that the professional was ultimately responsible for everything that happened, and had superior knowledge. We disagree. The professional defending against a claim of malpractice must always go further, and take a deep dive analyzing the client’s own responsibility.

In automobile accidents between two vehicles, the attorneys for both sides will, without question, look closely at the conduct of the other driver. In professional malpractice cases as well, the defense must take drill down into the conduct of the plaintiff on the other side of the “versus.”

While there are well-established norms for professionals, the standards for the client’s “business standards of care” are all too often not effectively presented. In truth, there are well-recognized, long-standing methodologies for analyzing business conduct. They have been propounded by leading business organizations and management consulting firms. For example, the work of The Business Roundtable, an organization of about 160 CEO’s of major firms, sets out that there is no best practice; in each situation it must be determined what is appropriate.

These norms are best presented to juries by those who have sat in the C-Suite and on boards (public, private, not for profit). Experts with those backgrounds can speak with the authority of having run a business across an array of industries. They do not simply provide a net opinion; their testimony must involve identifying and examining the business practices and processes at issue. The specific responsibilities, and the proper division of labor in an organization is specific to a firm at a point in time. That is what we do.