An Expert Witness Can Make or Break a Case

Article excerpt

EXECUTIVE SUMMARY

* THE CPA EXPERT WITNESS MUST CHOOSE an approach in the pretrial planning phase that will develop and integrate facts and legal theories presented later in trial testimony. CPAs may find using a visual framework works best both in the preparation stage and as a tool on the witness stand.

* VISUAL GRAPHICS PREPARED BY THE EXPERT witness can outline logical sequences and relationships in the case and can help to structure a trial plan. At trial the graphics can become exhibits to explain salient points and to educate the trier of facts.

* ONE ADVANTAGE TO A VISUAL PRESENTATION is that the CPA can display the entire case on a single page. The graphic analysis flows logically, provides facts, theories and claims and highlights what information is missing.

* WITH A DETAILED GRAPHIC AS A COMMON POINT of reference, the experts and counsel can then develop a list of exhibits the client must ultimately produce and decide whether additional expert witnesses are needed for trial.

* CREATE A CUMULATIVE ANALYSIS, displaying both sides of the case, including claims, counterclaims and factual interpretations. Identify strengths and weaknesses. Focus on discussing the points that will help prove your case or disprove the opponent's. The completed visual establishes a simple path for the trier of fact during trial testimony.

How using instructional visuals can help CPAs in litigation support.

Because most commercial disputes involve an accounting issue--such as valuation of a business for a change in ownership, amortization of intangible assets, calculating earnings to define a business's net profits--CPAs often are hired by plaintiff and defense lawyers to provide expert testimony as litigation support consultants. The CPA expert witness can play a variety of roles in business valuation cases--from performing simple damage calculations to orchestrating complex research and analysis and creating case strategies. To do this, the CPA expert witness must choose an approach in the pretrial planning phase that will help him or her develop and integrate facts and legal theories presented later in the trial testimony. CPAs may find using a visual framework helps them in the preparation stage and as a tool on the witness stand.

Visual graphics prepared by the expert witness can outline logical sequences and relationships in the case and can help to structure a trial plan. At trial the graphics can become exhibits to explain salient points and to educate the trier of facts. Most CPAs and attorneys make checklists or chronologies to depict events, but lists alone will not meet the demands of complex litigation since experts and counsel cannot determine the course of events, what is important or what is missing without something tangible pulling all the pieces together. A visual approach makes it possible for the CPA expert witness to completely integrate the case on one document by:

* Showing what happened.

* Identifying both the expert's and opponent's claims.

* Highlighting relevant data.

* Identifying missing data.

* Identifying key areas and responsibilities of the client, counsel and experts.

* Creating a damages model.

* Providing a way to challenge and test the other expert's case to achieve optimal results.

One advantage to a visual approach is that the CPA can display the entire case on a single page. The graphic analysis flows logically, provides facts, theories and claims and highlights what information is missing. With a detailed graphic as a common point of reference, the experts and counsel can then develop a list of exhibits the client must ultimately produce and decide whether additional expert witnesses are needed for trial.

The completed visual, while initially used in preparation and planning, also serves as an outline for the expert's later, more complicated, technical testimony in court. …