Much has been written about cross-examination of an expert witness. However, far less is written about the important direct examination of the lawyer’s own expert — in the case, a forensic accountant.
The goal of every direct examination of a witness is to elicit information and opinions that are clear, convincing, and well-supported by the evidence.
The questions to ask
In a fundamental sense, the basic questions to ask an accountant — or any other expert witness are few and simple, They do not vary based on the subject matter of the expert’s opinion or analysis. They are:
- Who are you;
- What are you giving an opinion on;
- What information did you review and what research did you conduct; and
- What is your opinion?
Obviously, the “devil is in the details.” A successful direct examination of an expert witness hinges o n the lawyer’s preparation and skill in presenting witness. The most effective examination is by an attorney who is so knowledgeable about the field in question that he or she could render the opinion, but for a lack of credentials.
Proper preparation and the time required to accomplish it will depend on the subject of the opinion. For example, experts who opine on the value of objects such as art, jewelry, and even real estate, especially residential, rely on information, research, and analysis that is relatively easy fir a lawyer to absorb. On the other hand, the valuation of a closely held business, perhaps multinational in scope, is far more complex, involving interrelated factors such as location, market, business structure, and the often elusive factor of “good-will.” It also may involve tax considerations and consequences and fluctuations in international currency markets.
Frame the assignment
The first step toward a solid direct examination is to have a detailed conversation with your expert early in the case during which you discuss the scope of the assignment, the subject matter in question, and the nature and foundation of the expert’s opinion. Such a conversation can preclude an embarrassing discovery — even as late as the expert’s deposition — that you and your expert are “not on the same page.” This discussion should cover the experts anticipated preparation of the case throughout discovery, his or her independent research on the Internet or elsewhere, and the anticipated format of the final presentation, as well as budgetary constraints of the case.
Documents or other case information required for your expert’s work will be acquired through document production from the opposing party, subpoenas to third parties, depositions, or combinations thereof. Plan carefully with your expert to ensure sufficient time for acquisition and review. Even if your case budget or the judge will not allow your expert to be present during depositions — especially that of the opposing expert — work with your expert on the most persuasive sequence of questions to ask during depositions.
As the expert develops the necessary research and information, particularly when the subject matter is complex, make sure you understand the information obtained and its context in the case, not just the format of the information. For example, if corporate tax returns contain important information upon which your expert will rely, you must understand the tax return or at least the portions of it that bear upon your expert’s opinion and any parts of it the opposing expert may use to present a different view-point. An ill-prepared lawyer will be unable to defend against his or her own expert’s cross-examination, much less conduct an effective cross of the opposing expert.
During the initial stages of the expert’s work, maintain your focus on the questions at issue, the nature of the research and evaluation, and the proposed format of the final report. Do not sign off on an expert’s work-product until you have examined a draft report and considered the various methods of presentation. The format of the final report can greatly hamper or enhance the persuasiveness of your expert’s opinion and report.
In at least some places, once an expert has been designated or disclosed as a witness (as opposed to a purely consultative role) any communications by counsel or the party are discoverable and no longer privileged.
Introduce your expert
In presenting an expert to the court, more than name, address, and educational degrees are important. Often opposing counsel will agree to stipulate to your expert’s credentials and experience, and the judge may enthusiastically welcome such time saving. However, the court’s overall impressions of the expert may in the end be more determinative of the outcome than the particular’s of the expert’s analysis and report. At a minimum, ask that a printed curriculum vitae for your expert be introduced as an exhibit. Unless your judge happens to be quite familiar with the expert through prior in-court testimony, such highlights of qualifications, both academically and experientially, may be important for the court to have in hand as it weighs both expert’s credentials and opinions.
A portion of the direct testimony of an expert witness should include a reasonably comprehensive overview of the various types of information, discovery documents, depositions, independent research, statistics, and the like, which the expert reviewed, considered, and analyzed in reaching an opinion. If the expert’s list is long, the complete list need not be presented in testimony. However, in addition to identifying classes of information, the most important specific items should be identified and explained briefly to the judge. If your expert is using a report format of his or her presentation, an appendix listing the specific items at the end of the report is useful.
Although all items considered by an expert need not be offered into evidence, essential items should be in evidence prior to the expert’s testimony. Then, during direct testimony, as the expert refers to each item (for example, a company tax return), the judge can be referred to specific pages and better follow the testimony.
Communicating the opinion
The goal of expert witness testimony is to persuade the court of the inherent superiority of this expert’s opinion. The expert must be adept at communicating complex information in a clear and concise way and in a fashion that is persuasive but not intellectually or verbally arrogant. Based on your work with the expert, and before the expert’s deposition or interrogatories are completed, carefully structure the sequence of questions to elicit the most persuasive opinion at trial.
Some lawyers find it most effective, particularly with some judges, to ask the opinion questions right after they have qualified the expert and before reviewing the process by which that opinion was obtained. This is particularly true if the expert has submitted a report that the court review during testimony.
A written report may be excluded from evidence as objectionable hearsay, although it is common practice for both counsel to stipulate that their respective expert’s report may be admitted into evidence. Even if excluded, the report may be presented to the judge as a demonstrative aid for review during testimony. Likewise, the report would qualify as a summary under evidence codes that provide for such admissions.
Visual presentations, whether on old-fashioned poster board with an easel or as newer methodology, must be functional. If using graphic boards, make sure that they are accurately prepared, preferably professionally, well ahead of trial, and that the type, graphics, and other images are easily viewable from the judge’s chair.
Frequently, portions of a case are presented through audiovisuals. These can be as simple as a laptop presentation in the courtroom or providing the appropriate connection, disk, flash drive, or other device for use by the judge and opposing counsel in followiong along on their own lap-tops If you choose to use audiovisuals, be sure to anticipate and investigate the necessary logistics of the courtroom before the trial for electrical outlets, Internet connections, placement of screens, and the like.
A “war story” from a trial from years ago illustrates how the expert’s presentation can affect the outcome of the case. The particular case involved a real estate development business with many properties in various parts of the state. Some projects were under construction, others were in presages, or lots of infrastructure in place or under construction, and others were in presales, or lots with infrastructure either in place or under construction, and others were completed units awaiting rental or sale and raw land. In many, the husband, as the developer, had minority partners involved. The experts hired by each side had supportable intellectual bases for reaching different opinions of value on certain properties. The judge was not sophisticated in financial matters but listened attentively to testimony and evidence.
The wife’s expert testified first, and her counsel limited the direct examination to about 45 minutes. The expert’s report consisted of two pages, each of which had only four numbers summarizing asset valuation, the marital and non-marital portion, and a proposed distribution. Attached were pages listing each of of the assets under discussion.
The husband’s counsel, a very able and experienced Savannah divorce lawyer, cross-examined the wife’s expert for several hours, reinforcing the strength of the opposing expert’s testimony, to the detriment of his own expert’s opinion, which followed the next day. Husband’s expert, who was also highly qualified, made his presentation by using a large white board upon which he wrote by hand in a blue marker the names of the assets and the values he had assigned them. The positioning of the easel and the size of the writing made it hard for both the judge and opposing counsel to see across the courtroom. When the decision was made a couple of weeks later, the court adopted all of the wife’s expert’s opinions.
Commenting on the opposing report
Judges vary widely on the extent to allow an expert to comment on the other expert’s opinion. For evidence, it is not proper for the expert who testifies first to comment on the opposing expert’s opinion or reports because those opinions or reports are not yet in evidence. It also may be inconvenient to have the first expert return for a rebuttal later in the case. This may result in the court and opposing counsel agreeing to take such testimony during direct.
Strategically it is better for the first expert to be recalled for rebuttal, fir for no other reason than to refresh the court’s recollection of his or her testimony. However, as part of the first expert’s direct examination, it may be useful to have the expert comment on why the opposing expert’s methodology was not used or why some information was given more weight than other information.
As with any case tried before a judge, the key to effective presentation lies not only in knowing the court’s level of knowledge, time constraints, or patience with expert testimony, but for the attorney and expert to be fully prepared, “in sync,” and equipped to deliver direct examination testimony that is clear, persuasive, and informative.