Expert Witness Procedures for Accountants: Do's and Don'ts for Success in the the Courtroom
Reilly, Robert F., The CPA Journal
DO'S AND DON'TS FOR SUCCESS IN THE COURTROOM
Accountants are often called upon to provide litigation support and dispute resolution services. For example, these services might be rendered with regard to valuation-related controversies such as gift, estate, income, and property reorganization matters; shareholder disputes; and breach of contract and other commercial damages cases. These services often involve expert witness testimony at either the administrative appeals or judicial level. Expert testimony could be either at a deposition, at a hearing, or at a trial.
Expert Testimony Procedures
The following recommended procedures for accountants who give expert testimony are not presented in any particular order of significance. As with all professional conduct, expert testimony procedures are ultimately a matter of the accountant's reasoned judgment and personal experience.
Your expert report is your best friend This is true on the witness stand and during deposition testimony. Accordingly, you should always bring your expert report to the witness stand (or to the deposition). It is appropriate to refer to the report as often as possible, and it is acceptable to read from it when necessary. Expert testimony is not a memory test.
You should be fully prepared to present the expert testimony. This means that you should review your expert report, workpapers, and notes just before testimony. Of course, it is necessary to be familiar with the facts of the subject case. In addition, you should be familiar with-and be prepared to explain-your expert report, any analyses, and your conclusions.
As an expert witness, you should always tell the truth-as you believe it. Expert witnesses (particularly accounting witnesses) always win by telling the truth-i.e., honestly and factually asserting their opinions. As an accountant (and as a witness), you should believe in the truth of your analysis and conclusions. You want to demonstrate to the trier of facts that you have an apostolic-almost religious-conviction in the truth of your testimony. By analogy, even if the missionary doesn't convert the nonbeliever, he never loses faith in the truth of his conviction. Likewise, even if the trier of fact doesn't agree with your conclusion, you will still win the case from a professional conscience perspective if you believe in the truth of your professional opinion.
Unless you are absolutely certain of your answer, don't trust your memory. Also, you should not guess the answer to a question, either in direct examination or in cross-examination. It is always appropriate to refer to your expert report when necessary. It is also appropriate to refer to a specific document, workpaper, or data source to refresh your recollection. While on the witness stand (or when being examined in a deposition), it is appropriate to take all of the time you need to completely read all documents you are asked about. When it is the truthful answer, you should not hesitate to admit: "I don't recall." Also, when it is the truthful answer, you should not hesitate to admit: "I don't know."
Be careful when confronted with short quotes. Accountant experts are often confronted with short quotes from their expert reports, from the opposing experts' reports, from professional standards, and from other materials. You should not feel compelled to agree with short quotes taken out of context. You should not feel compelled to read-and you should not allow the examining attorney to read-only partial quotes from your expert report, a treatise, or other document. It is appropriate to always read the entire quote to yourself-and into the record-before answering the question you are asked. In fact, it may be appropriate to read several paragraphs-or even an entire pageif necessary, before answering a question regarding a quotation. In summary, it is important for the expert witness to put the quote in its complete context. …