Insights: Article

Preparing an Expert to Testify

What You Need to Know

By Lela Lawless

May 10, 2018

Engagement as a testifying expert and being called to the stand to testify is the object of desire for many forensic accountants. Courtroom testimony reflects an expert’s education, training and experience along with professional judgment and presentation skills—all rolled into one. However, a poorly prepared expert may be ineffective or fall apart on the stand, producing weak testimony that can destroy your case.

An expert should bring the facts of the case together in a meaningful way, using their expertise to provide a competent, accurate and unbiased analysis. Teaching the facts to the jury, laying the proper foundation and helping the jury understand how the problem has been addressed in a thorough, logical and objective manner is the expert’s job on direct examination. An expert should concede the obvious, admit weaknesses and refrain from acting in a defensive manner on cross-examination. At all times, the expert should be honest and credible.

If that sounds like it’s asking a lot, that’s because it is. So, how can you better prepare your expert to testify effectively at trial?

The following points do not cover the entire landscape of possible witness pitfalls but they are key ones, based on my experience.

  1. Expect your expert’s qualifications to be attacked before the jury in an effort to diminish the expert’s credibility and the weight of their testimony.

    Expert testimony is admissible if:
    • the expert is qualified
    • the testimony will help the jury decide issues in the case or understand evidence
    • the expert testimony is based on sufficient facts or data
    • it’s the product of reliable methods and principles
    • the expert has reliably applied the methods and principles to the facts of the case
    An expert should stand by their qualifications and commit to an opinion in their area of expertise. Credibility is the key. An expert should use their education, experience and background even if they have never testified before. Emphasize your expert’s length of experience, prior cases that may be similar and the expert’s specialized knowledge, education and training. However, education and experience are no substitute for the necessary investigation and research of the facts and data in the case by your expert.
  2. Make sure your expert’s resume is up to date and accurate. An expert should be able to explain any gaps in their resume or unknown periods—without hesitation. I am often asked why I was out of the work force for several years, and I explain that I have three children and took time off to be with them and reentered the work force when my youngest child started kindergarten. I let the court know I have nothing to hide. Juries appreciate my frank and honest answer and relate to me as a mother as well as an expert.
  3. An expert should never wander outside their area of knowledge or expertise. An expert should admit what they do not know when a question is truly outside their domain. However, an expert should never sound evasive or ill-informed. An expert should let the jury know the question is outside their scope and not relevant to their direct testimony. For example, a CPA is not an investment expert, a vocational expert or a real estate appraiser. When an expert admits what they don’t know, the jury will believe the expert about what they do know. An expert should stay in their sandbox and not be tempted to venture into unknown territory.
  4. An expert should never back down from their opinions or report. Cross-examination will attack the weaknesses in the report, and it is the expert’s job to neutralize that attack and present the weaknesses in proper perspective supported by the relevant evidence. An expert should know the vulnerabilities in their report and be prepared to respond without backpedaling or second-guessing. The expert report has been carefully prepared to summarize conclusions and opinions, and an expert should stick to that report and hold their ground. However, an expert who is willing to make concessions when necessary maintains credibility and impartiality compared to the witness who continues to dodge and resist every question. An expert also should understand that redirect examination is an opportunity to clarify or repair damage sustained on cross examination.
  5. An expert should never, ever reverse positions on the stand. When an expert changes their mind, it creates uncertainty and conflict for the jury and leaves them guessing on assumptions and the basis of calculations. The opinions presented in an expert’s report and testimony should be consistent. If an expert needs to modify an aspect of their report or testimony, the expert should explain to the court a change is needed and why. For example, new information may have become available since the expert report was prepared. When an error in a report is known, an expert should admit and address the error on direct, own up to any mistakes and explain how they have been corrected. An expert should concede the obvious and deal with an error offensively, not defensively. Considering the voluminous documents reviewed and multiple schedules and damage models prepared, unfortunately mistakes will happen. An expert should own it, deal with it and move on.
  6. An expert should own their opinion and avoid appearing as an advocate for the client’s position. An expert should testify on both direct and cross-examination in a consistent manner and be careful about perceptions of being “part of the team.” An expert should never appear to be a mouthpiece for an attorney or influenced or swayed by an attorney. An expert should let the court know they have their own independent opinion based on their objective expertise and the evidence presented. An expert should not rely heavily on data and information provided by the parties that engaged them without providing their own independent analysis.
  7. An expert’s demeanor is important. An expert should not change from helpful and responsive on direct to combative and defensive on cross-examination. Nothing undermines credibility and reveals bias like an expert’s sudden refusal to give straightforward answers. Sure, an expert is being paid by one side, but maintaining objectivity is key. An expert should be polite and respectful and never show anger or arrogance in the courtroom even when their integrity is attacked. When an expert is evasive or argumentative, credibility and trust are lost. An expert should be authentic, likeable, calm and consistent. Credibility comes through believability. To be believed, an expert should look the part, speak the part and act the part.
  8. An expert should be able to communicate his or her opinion clearly and concisely and explain complex financial analysis in terms a judge or jury can understand. Confusing testimony may cause the jury to find the expert lacks credibility. Do not let your expert’s methodology get lost in a plethora of detailed spreadsheets, financial models and accounting language that no one understands. If the jury cannot understand the methodology applied, they cannot determine if the expert opinion is relative or reliable. An expert should focus on relating to jurors in juror-friendly terms to gain credibility and acceptance. The goal of an expert is to deliver memorable, understandable and persuasive testimony.
  9. An expert should be prepared to react to hypothetical or “what if” questions that attempt to undermine the expert’s opinion based on a set of assumed facts. If a hypothetical question is premised on far-fetched assumptions and circumstances, an expert should quickly point this out. If the assumptions are plausible, an expert should not be afraid to concede different outcomes may be possible. However, an expert should clearly state they disagree with the factual premise of the question and their opinions have not changed.

These and other traits lead an expert to be prepared, confident and effective. All of these characteristics—and more—underlie that simple statement that “a successful expert is prepared.”

Lela C. Lawless, CPA and Senior Manager in the Phoenix office of Eide Bailly LLP initially wrote this article for the Arizona Bar Journal. That feature can be found here. Lela specializes in forensic accounting, business valuation, claims analysis, and calculation of economic damages related to lost profits, contract disputes, fraud schemes and other business disputes. Reach her at 602.264.8641 or llawless@eidebailly.com.

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