Preparing for Cross: A Checklist for Expert Witnesses
Accountants or other financial professionals who provide expert testimony should keep in mind a few key considerations when preparing for any adversary deposition or cross examination at trial. Many experts do not adequately prepare for questioning on some of these very fundamental areas and, as a result, are unprepared when the questions are asked. Worse, the expert may give ill-considered, incomplete or incorrect responses, which can provide a basis for a jury or judge to discount their testimony. It is always tempting in the press of other business, to defer preparation until the last minute or to assume the deposition or trial date will be changed at the last minute. However, there are many advantages to be gained from thinking about each of these areas well in advance of the examination, reviewing them with the attorney who will be defending the deposition, and developing responses that will protect against impeachment by the opposing attorney. With sufficient preparation, the expert will be able to parry many of these points of potential impeachment, turning them instead into positive statements that bolster the expert’s background and experience.
Generally, attorneys will not expect to score points in this area against a seasoned expert. Moreover, a suggestion of bias or interest is much more likely to be effective on a jury than on a judge at a bench trial. Nevertheless, it is best to anticipate questioning in this vein, which seeks to suggest the expert’s testimony has been shaded to favor the side that has retained her or him. Consideration of these potential problem areas will allow the expert to formulate responses that can blunt any negative inferences.
Is the expert in the business of giving expert testimony? In other words, does the expert "practice" or only "preach?"
Does the expert routinely testify more for the plaintiff or the defense?
Has the expert worked with the party’s attorney on other matters?
Does the expert have, or has the expert had, a business or other relationship with the party? Is the expert the brother-in-law, golfing partner, fraternity brother, neighbor of the party? Does the expert’s firm provide other services to the party or
Has the expert been paid for his or her services to date or is there a substantial unbilled or unpaid amount?
The last item may be a problem for plaintiff-side experts because the fees in advance of deposition or trial may be substantial. Moot any potential issue by dealing with it well in advance of the testimony.
This topic is one that many experts take for granted and do not adequately think about before testifying. The expert should bring a copy of his or her current resume to the deposition. Good practice is to provide a copy to the questioning attorney in advance of the deposition to streamline the examination and allow easy reference to dates, employment history and publications. Before questioning the expert under oath, an experienced attorney may have spent many hours investigating the expert’s background and qualifications. Deposition questioning will focus on uncovering something that can later be exploited at trial.
As to each of the expert’s certifications, what does it mean and what are the requirements? This is an area where the expert can score a number of points and bolster his or her qualifications—that is, provided the expert can state how few others hold the certification, how difficult the credential is to attain, or can show involvement as a member of the certifying organization’s board or other committees. If the identity of the opposing expert is known, the expert may be able to note that the opposing expert lacks the same certification.
Have there been any licensing issues? Opposing counsel will check to confirm that the expert is currently licensed and has not had any disciplinary issues. If there are (or have been) any such issues, the expert must bring them to the attention of the attorney defending his or her deposition.
What articles/publications/presentations has the expert given in the subject area? The expert should review these and make the attorney who will be defending his or her deposition aware of any publications or presentations that may contain statements inconsistent with the expert’s current opinions. Given enough thought, it is usually possible to explain the seeming inconsistency. The expert may even recall that the opposing expert has attended a presentation or cited one of the expert’s articles, thus impliedly "endorsing" his or her credentials.
Has the expert ever been qualified to give an opinion on the proffered subject? The opposing expert will want to know whether those prior opinions involved the same kind of business as the case at hand. Again, with enough foresight, the expert will be able to think about ways in which the issues or facts in those prior cases were similar or related to those in the present case.
Has the expert ever been precluded from offering any expert opinion? Most experienced experts have faced Daubert challenges or motions in limine intended to preclude or limit their testimony. The expert should be candid in identifying any rulings in which his or her opinions were excluded or stricken. Feigning lack of recollection will not help—a judge or jury will likely think those incidents should be rare enough to be memorable. Do not assume that no one will ever find out about such incidents: a diligent attorney will be able to uncover such rulings either through internet research, access to various expert witness databases, or simply calling other attorneys who have represented the adversary parties in those cases. It will extremely unpleasant to be cross-examined at trial with quotes from another judge who has impugned the expert’s prior opinions. If the expert’s opinions have been excluded or limited by a court, the expert should re-familiarize himself or herself with those rulings in order to explain the context in which the ruling was made. Perhaps, the expert was allowed to give other opinions similar to those he or she is proffering in the case at hand, or the decision was overturned on appeal.
This area will be the principal focus of the expert’s examination. The opposing attorney will want to explore both the expert’s general experience and the specific tasks the expert performed in arriving at his or her opinions in the case.
Has the expert ever personally done the thing he or she is opining on? For instance, if the opinion concerns the performance of a financial statement audit has the expert actually conducted an audit? If so, adversary counsel will want to know how many audits, how long ago they were performed, and what kinds of businesses? Generally, the more time the expert spends reflecting on these experiences, the more accurate and thorough the expert’s testimonial response will be and smaller the chance for impeachment. Again, there is no substitute for thinking carefully in advance about how to respond.
Has the expert actually performed the work underlying the proffered opinion? An expert may have relied on a team of subordinates to do research, review documents, and perform calculations. The questioning attorney will probe the specific tasks the expert has personally performed, including which portions of the report were actually written by the expert. Often the expert’s billing records will have been produced in advance to the adversary counsel; these may show substantial hours performed by other people at the expert’s firm The expert should be prepared to defend the use of subordinates on efficiency grounds and as "standard practice" among others in the field. In addition, the expert should confirm his or her thorough involvement in reviewing and signing off on the various steps performed by subordinate personnel.
What information has the expert considered or failed to consider? The adversary attorney will try to "box in" the expert by identifying all materials that were considered or reviewed. The converse of this inquiry is to establish which materials were not reviewed or considered by the expert. To prepare for this line of inquiry, the expert should make sure to understand the source of the documents he or she has relied on in forming the opinions. If the documents are incomplete, or have been generated by the party the expert is supporting, the expert must consider whether opposing counsel could attack the integrity of those documents. If so, the expert should consider how to rebut that suggestion. Often, opposing counsel will question the expert about his or her lack of familiarity with historic information or non-financial information that may relate to customers, key employees, prior or contemplated transactions, and so forth. While such information may be known to the adversary party, it may not easily be available to the expert. The expert should incorporate in his or her responses the obvious reasons why he or she would not have been able to consider such information. The expert should also discuss with defending counsel any relevant materials that were not available or not provided to the expert. If relevant information was not furnished in discovery by the opposing party, the expert should say that in his or her deposition testimony. The adversary party will then have to think about whether to produce the material or face the risk that its failure to produce the material will be an issue at trial.
Has the expert followed the procedures and requirements of his or her profession in rendering the opinion or report? For example, if the expert opinion involves a property or business valuation, opposing counsel will want to establish that the expert has followed the relevant requirements in the Uniform Standards of Professional Appraisal Practice (USPAP).
Has the expert made any mathematical or computational errors? Often such mistakes will resound with a jury, particularly if there are more than a few in the expert’s calculations. However, if the opposing counsel points out such mistakes at a deposition, the expert should take the time to correct them in advance of trial, thus defusing their impact or making them moot.
Is every opinion supported by facts or data so the expert cannot be said to be offering "net opinions?" The opposing attorney will look for ammunition for a potential motion in limine to exclude all or part of the expert’s opinions on the ground they are unsupported by any data or reasoning (but only by the fact that they are given by someone who calls himself/herself an expert). This is an area of potentially grave risk to an expert. If successful, such a motion will result in striking the expert’s opinion altogether or will severely truncate the opinion the expert can give at trial. The expert must be prepared at trial to elaborate on all of the underlying data that provide the basis for the opinions. This area should be the focus of extensive discussing with the attorney preparing the expert’s testimony.