Expert Lessons Learned
Written by: Megan Hoss, CPA
When looking to hire the right financial forensics expert it is all about experience, experience, experience. Here at Cogence Group we have testified in over 150 litigated cases. We analyze your financial or economic problems to deliver a logical, credible, and persuasive testimony in the courtroom. We haven’t seen it all, but we sure have learned a lot of lessons along the way. Here are a few things we have learned from our 30-plus years of experience.
A poor expert report can sink your case. In a federal court, an expert report needs to be as thorough as possible because the Court may not allow you to testify even an iota outside the four corners of your written report. At the same time, you must be ready to defend every aspect of your detailed report. Sounds complicated, we know. Creating a methodology section that succinctly explains what the approach was to form your opinions is key. A clearly articulated method and report makes opposing counsel’s job to find holes in your opinion a whole lot tougher.
An expert witness is only one character in the story. The trier of fact is attempting to piece together a coherent story from a multitude of facts and tidbits, and it is important for an expert to understand the role he or she plays in developing that story. As an expert, you must understand the links between each of the experts and fact witnesses that lead to your ultimate expert conclusion. Do the witness’ and experts’ opinions all carefully and methodically build on one another? Will others testify to the essential building blocks of the case? As the financial experts, we are generally the last piece of the puzzle, the final witness. We must rely on other witnesses to lay the groundwork for our conclusion.
Prepare, prepare, prepare. It is impossible to predict all of the twists and turns of a trial. The best experts prepare long and hard before ever stepping foot in the courtroom. To prepare we must review everything carefully, including our deposition and report, using these to try and anticipate tough cross questions that opposing counsel will ask to box you in during trial. The best experts will view the case critically and help litigators understand where assumptions are so that neither are surprised by opposing counsel’s questions. Additionally, we always suggest that we prepare, or help prepare our own direct examination questions. We, as experts, are the most knowledgeable when it comes to our opinions and can help attorneys lay out questions in a manner that is digestible and understandable to the Judge or jury. We do not want all our good work lost because of a clunky direct examination.
Don’t be an advocate! That is the attorney’s job. Be independent, unbiased, thorough, and objective. Expert testimony is better—more authentic, more believable—if the expert truly comes to an independent conclusion; rather than the attorney’s strongly guiding the expert to the conclusion. Experts that show advocacy and bias severely undercut their credibility and effectiveness.
Keep demonstratives simple. Jurors, like all individuals, learn in different ways. Demonstratives work as a visual representation of the expert’s testimony. They help the audience understand facts that would otherwise be difficult to comprehend. Using different visual aids will help to educate and captivate the jury. Keep the demonstratives simple - colorful graphs are generally easiest for the audience to digest. Additionally, try to prepare counter-exhibits in advance that could be used for cross or rebuttal.
Don’t sound too much like an “expert.” Know your audience, whether that be a judge or jury. They are not forensic accountants and generally do not have a finance background. Clear communication is key to breaking down a complex topic in a simple, engaging way. If asked about a technical process or evidence, it is best to describe your answer in a way the “typical” juror can understand. Using analogies can help your audience understand complicated procedures, concepts, or processes. An expert that can lead jurors through their reasoning so that the jurors feel they understand and can reach the same conclusion is well worth the investment.
At the end of the day, it’s not just about what the expert witness says in the courtroom. Take the time to make sure the financial forensics expert you put on your litigation team has the analytical skills and track record you need to best serve your client. The praise Cogence Group gets from litigators is what we bring to the litigation process from start to finish. Litigators know how important the team and process are in a case, and that’s why they keep calling Cogence Group…and you should too. You and your client will be glad you did!