Testifying is the pinnacle of an expert witness’s work in a case. It may well be the most important part of the expert’s work, as the assistance of a competent financial expert is the key to cases involving economic damages and other financial calculations.
An expert must do much more than just analyze facts and calculate figures. Traditional accounting and finance skills are not enough when it comes to litigation matters. A financial expert witness must qualify as an expert in court, and must be able to convey her or his findings to non-accountants in both the written and oral formats.
Accountants often forget that not everyone speaks their language, and many are not used to explaining their findings to people outside the finance function. Creating a meaningful understanding for readers and listeners can be an art form unto itself, and the best financial expert witnesses do it easily.
Selecting the Expert
The whole process starts with selecting the right forensic accountant or economist for the case. The required expertise goes beyond technical proficiency and extends to the ability to communicate the findings. What good is an opinion favorable to your case if the expert can’t get anyone to understand that opinion?
The expert’s communication skills must include both the written opinion and testimony. It is always good to ask trusted colleagues for referrals to financial experts. From there, legal counsel should look for an expert who can immediately discuss accounting concepts and case theory in a way that the attorney can understand. If the expert is a good communicator in early discussions, this bodes well for the future.
In addition to communication skills, it’s also important to look for soft skills in your expert. She or he should display appropriate body language, make eye contact with the attorney or audience, read the audience to determine the level of interest and understanding, and exhibit a pleasant demeanor. Likeability is critical in a courtroom, and these soft skills can help achieve that goal.
Ensure that your forensic accountant or economist is familiar with legal proceedings and rules of evidence. A current curriculum vitae should help gauge the strength of the potential expert. If the potential expert doesn’t have a curriculum vitae, it is clear that she or he is not experienced in the courtroom.
An expert’s references should be able to speak to her or his ability to testify and communicate. A solid reference, especially from an attorney who has used an expert multiple times, can speak volumes about the potential expert’s fitness for your case.
Deposition and Court Testimony
Next, we come to the pinnacle of an expert witness’s work — testifying. It takes a skilled witness to effectively respond to opposing counsel’s questions. Not all good accountants can remain calm under pressure, answer only the question that has been asked, or give appropriate answers to all questions. Good opinions can go bad quickly without prior testimony experience and proper preparation before testifying.
Testimony should reinforce the opinions expressed by the forensic accountant or economist in the written report. Counsel and the expert should prepare in advance of testimony to walk through the opinions and lines of questioning. The attorney must be well-versed in the financial aspects of the case in order for the testimony to go well.
A good expert witness is able to walk the judge and jury through her or his work and conclusions in a logical and organized format. The testimony should stay focused and relevant, and prior preparation can definitely assist with this.
Preparation goes beyond a discussion of the highlights of the expert’s opinion. It also includes an examination of the weaknesses in the financial expert’s calculations and conclusions. It is critical to be aware of potential deficiencies in the opinions before being called to testify.
When a forensic accountant or economist testifies, it is important to avoid technical language and industry jargon as much as possible. When technical terms are essential to the testimony, they must be accompanied by clear explanations. The testimony should stay as simple as possible so everyone can understand.
Good testimony feels natural and flows well. It is not a game of cat and mouse between the attorney and the accountant or economist. Juries react better to someone who is pleasant, with matter-of-fact answers to questions, rather than someone who is intent on sparring with opposing counsel. Establishing rapport with the judge and jury can be a critical component of the testimony, and a good expert will draw in the listeners.
Walking the judge and jury through complex calculations may bog down the testimony, but it may be necessary. Visual aids can be an excellent supplement to this testimony. While the expert verbally connects the dots and explains each step of the calculations, large exhibits can offer the listeners a focal point. Some jury members may have a hard time understanding the calculations just by listening, and an effective chart or graph can help their comprehension.
One of the most common traps that an expert witness must avoid is anticipating a line of questioning. A witness anticipating future questions and trying to avoid traps can cause problems, especially if the witness is mistaken about the line of questioning. It is okay to consider what questions may be coming next, but a good expert witness will focus instead on providing correct answers to the current questions.
The Total Package
At the end of the day, it is the expert witness’s job to make sure that counsel, judges and juries understand their opinions and how they were derived. Doing that well takes a lot of practice and attorneys owe it to their clients to find someone skilled and experienced in litigation work.
Accounting matters can be complex and boring to the average person. A good forensic accountant or other financial expert should be able to explain financial matters to a judge and jury with ease. Visual aid will enhance the testimony and make it easier to understand.
It’s not enough to throw out a technical explanation in a courtroom and hope that everyone understands. It is the expert’s responsibility to read the audience and make sure that they understand the methodology and results. This can be assured only by using qualified experts with testimonial experience and a thorough understanding of the litigation process.