A Practical Approach to Expert Witness Testimony
By Leon A. LaRosa Jr., CPA, CFE
A CPA and former auditor was retained by a plaintiff’s counsel to review work performed by an audit firm and opine on whether or not the firm complied with professional standards as defined by AICPA. The CPA possessed extensive experience as an auditor, but he never testified in court as an expert. Counsel chose the CPA because of his experience, education, and performance on prior engagements. He assumed the CPA’s background would more than qualify him as an expert. Qualifying and performing as an expert, however, are two separate things. Some of the most qualified professionals perform poorly in court and fail to achieve the desired outcome for counsel.
Black’s Law Dictionary defines an expert witness as "one who by reason of education or specialized experience possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or deducing correct conclusions." Thus, it is the duty of an expert to help the trier-of-fact on matters within his or her expertise. This duty overrides any obligation to the person from whom he or she receives guidance or by whom he or she is paid.
Matters under litigation often come down to a battle of experts. One must be prepared and proficient in presenting specialized knowledge and experience in a manner that is convincing.
Before an expert witness ever steps into the court room, he or she must acquire sufficient knowledge about the substantive issues in the case. Review reports and workpapers for key points that are critical to the case, and review potential questions and answers with the client’s attorney in preparation for trial. The client’s counsel should help you become knowledgeable about the opposing attorney’s style and tactics. Finally, organize any exhibits so they can be quickly retrieved when required.
Presentation and how an expert witness carries himself or herself are very influential in court cases. At the very minimum, dress in conservative business attire, maintain eye contact with the inquisitor as much as possible, and try to exude an alert and confident attitude. Remember to speak clearly and audibly, refrain from using professional jargon, and use simple, rather than complex, terms to describe findings and opinions. It is always best to explain complex concepts in a layperson’s terms. Correct any misstatements as soon as detected, and use of graphs, charts, and other visual aids will help clarify a point.
It also helps to take a breath before answering each question, and to do so in a slow and deliberate manner. If you are asked a long or imprecise question, ask for it to be rephrased or broken into smaller components, and then answer the specific questions without going off on tangents or volunteering more than the question requires. If you do not know the answer, say so. Do not guess. In cross-examination, do not respond too quickly. Counsel for your side may wish to interpose an objection to the question. If the judge or a jury member elects to ask a question, respond to it by looking their way.
In addition to all the "dos," there are at least as many "don’ts." Do not smile gratuitously or try to be humorous. Do not read from notes if you can avoid it since opposition counsel will demand to see them, yet do not memorize answers to questions. Answer questions naturally. Do not raise your voice in anger if the opponent’s lawyer tries to bait you, and do not do the opposite, staring off in space, at the floor, or at the ceiling. Do not worry about silences or be tempted to fill in any silences. When not on the stand, remember your role as an expert witness. Do not initiate personal exchanges with the opposing side during courtroom breaks, do not speak with individual jurors or communicate with them nonverbally, and do not stay in the courtroom before or after testimony, unless asked to do so. Finally, and it should go without saying, always tell the truth.
No matter how the facts-in-evidence are "stacked" for or against a client, it is counsel’s job to be the client’s advocate. The role of the expert witness is to just be an expert.
Counsel may or may not be experienced in retaining and preparing expert witnesses. Never assume counsel possesses the required skills to effectively utilize experts. The expert witness should rely on his or her own preparation, skill, and ability to communicate to effectively transmit credibility on the witness stand. An attendee at a litigation seminar once asked a judge, "How can you decide between experts when you are not entirely familiar with accounting rules?" He answered in one word, "Credibility."
Successful expert testimony is not solely measured by academic credentials, technical excellence, or years of experience. Often, the end result is determined by the manner in which the experts communicate their conclusions.
Leon A. LaRosa Jr., CPA, CFE, is a partner, litigation support services, at Amper, Politziner & Mattia in Jenkintown, and director of the Fraud and Forensic Accounting Institute at LaSalle University in Philadelphia. He can be reached at LLaRosa@Amper.com.
LAST UPDATED 4/9/2009