So You Want to Be an Expert Witness: Hone Your Skills to Increase Your Success on the Witness Stand
Crumbley, D. Larry, Russell, Keith A., Journal of Accountancy
Being able to deal with the unexpected is a key part of performing well as an expert witness and a challenge that some CPAs find exhilarating. Increasingly, forensic accountants are being called as expert witnesses to help sort out the labyrinthine financial aspects of litigation involving complex issues and large sums of money. In open court these advisers submit to scrutiny from a judge, the jury, attorneys, court personnel and trial spectators. CPAs who keep their cool and convey concise, cogent information--whether in depositions or under an opposing attorney's attempts to discredit their testimonies--can have a pivotal impact on a conflict's resolution as well as the satisfaction of helping a client win (see "Basic Legal Concepts," page 33). Here are some suggestions on how to increase your positive impact on behalf of your client.
PREPAREDNESS IS THE KEY
Juries, judges and arbitration panels charged with resolving disputes with financial aspects often know little about financial statement analyses, audits, tax, budgeting or malpractice calculation of lost profits and damages. To help triers of fact understand the impact of different types of financial transactions or attach a measurable value to a plaintiff's injury CPAs often are called on to serve as expert witnesses. If you want to develop a niche in such litigation services or just learn to feel more comfortable on the stand, here are some tips to get you started.
Review your qualifications. Do you have the academic training, career prominence (published articles), professional certifications, requisite knowledge and experience in a specific area to be a successful expert witness? Enumerate your competencies (see "Give Your Skills a CAT Scan," JofA, Jul. 04, page 34). People skills are particularly important in interactions with all parties to a trial.
Get your credentials in order. Federal rule of civil procedure 26(a)(2) mandates experts disclose their identity, the issues their opinions will address, their professional qualifications (including what they've published in the past 10 years and all cases in which they provided expert testimony in the previous four years) and who is paying them. There are many resources for expert witness training (see Resources box, page 30).
Be realistic about whether you're the right expert for the job. A self-serving view of your abilities won't help you deal with the opposing attorney if you are not truly well-versed in the area in which you give testimony (see "Daubert Challenges," page 25). If you're offered an engagement in an area that's not your strong suit, recommend an expert whose qualifications are a better match (see exhibit, page 28).
Prepare in depth. Once you've been retained, do your homework. Be professional, complete and creative. Learn all pertinent aspects of the dispute as well as protocol and procedures for the witness stand. Analyze the background of the issues and review related depositions, materials attorneys furnish and any additional materials they deem relevant. Work closely with counsel to review the rules of the particular jurisdiction in which the case is pending. Both statute law and case law may be relevant. Certain states may require a CPA who isn't licensed with that state to register prior to giving testimony.
Note: Based upon the successful deposition of an expert, cases often settle without going to court.
Don't let your attorney mold your conclusions. If you reach a point where you are uncomfortable or cannot testify to something the attorney wishes you to, say so--vigorously if necessary. Suggest another approach that can be independently supported.
Talk to yourself. Because the judge and jury likely do not have working knowledge of accounting technicalities, practice how you will express information in a clear and simple way. Tape record your explanation of important points, then play it back. If you were a layman, would you understand what you just heard? …