Unimpeachably Neutral Expert Testimony
How to Tell the Whole Truth and Nothing but the Truth
The often-unspoken truth is that many deposition or cross-examination questions that expert witnesses in the field of forensic accounting, business valuation, or matrimonial litigation will be asked are written to make the truth sound like a lie and a lie sound like the gospel. This second article of the Unimpeachable Neutrality series offers proactive tips on how an expert witness can facilitate effective unimpeachably neutral expert testimony with unimpeachably neutral written testimony in the form of an expert report.
There is one question a testifying expert can count on being asked at every trial, hearing, and deposition.Â â€śDo you swear that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth?â€ť Â The often-unspoken truth is that many deposition or cross-examination questions directed at expert witnesses in the field of forensic accounting, business valuation, or matrimonial litigation are designed to make the truth sound like a lie and a lie sound like the truth.Â This second article of the Unimpeachable Neutrality series offers a more detailed look at how drafting an unimpeachably neutral expert report can enhance an expertâ€™s ability to tell the whole truth and offer unimpeachably neutral expert testimony.
Q: What is your quest, yes or no?
For an expert, telling the whole truth and nothing but the truth can become an unnecessarily complex task when opposing counsel asks you to give a â€śyes or noâ€ť answer to a question like â€śWhat is your quest?â€ťÂ The expert deposition has become a game of $25,000 Pyramid where the testifying expert is trying to say what they mean in as few words as possible without saying exactly what they mean or without using certain words.Â The fear and all too real risk of saying too much is painfully clear by the advice that most experts receive prior to a deposition which normally consists of limiting what you say to yes, no, or I do not know while also managing to somehow answer the question.Â While telling the whole truth through limited expert testimony at deposition is admittedly the best approach for most experts to follow, it becomes difficult for many experts to answer a question that does not sound cagey or result in saying less than the whole truth.Â The result does not achieve the original purpose of a deposition which is to find out what an expert knows and expects to be testifying about at trial.Â The problem becomes that this dynamic temporarily changes the expertâ€™s role from that of being an educator of the court to a quasi-advocate role focused on not screwing up a case for your client by getting impeached or having your testimony excluded.Â There is, however, a way to avoid the cat and mouse game altogether though a systemically neutral approach of report preparation and building assumptions that are unimpeachably neutral.
Q: Have you testified in deposition or trial before?
If your expert report deserves to be in the science fiction section of the library, it should come as no surprise when your deposition or trial testimony feels more like an interrogation.Â I would imagine that trying to stretch the truth in as few words as possible while having a court reporter typing or repeating everything you say into a Darth Vader mask would be no easy task.Â This is because basing your expert opinion on unreliable facts, data, or assumptions, simply gives the opposing counsel something to verbally beat you up at deposition or worse, trial.Â Instead, an unimpeachably neutral expert report should be free of unnecessarily speculative assumptions and more appropriately based upon that for which you know or can prove.Â If you have submitted a fictitious manifesto of an expert report to the court, you will have clearly no option but to limit your testimony.Â This is not the situation any expert should want to be in.
Q: Would you agree that your opinion is not to a reasonable degree of certainty?
In civil cases, the evidentiary standard for estimating is what is more likely than not (51%) going to happen or what would have happened but for or considering a damage event.Â Testimony describing data or assumptions premised on that which is known or proven is harder to criticize on cross or in a deposition than speculative assumptions that are not known or cannot be proven.Â What can be proven is not limited to what happened in the past; however, the historical data must be the starting point of your analysis.Â Economic damages, for example, should be derived first by compiling the most sufficient, relevant, and reliable data to gain an understanding of what is known or can be proven to have happened in the past.Â Absent a vocational report being provided, historic wage data can be used to build a base wage from an individualâ€™s proven or demonstrated historical hourly or annual earnings paid prior to an injury, death, or termination.Â From the data provided, an expert can figure out a benefit stream based upon reliable evidence in the form of W-2s, pay stubs, or tax returns.Â Far too often I see experts advocate a position provided by counsel that not only ignores the most sufficient relevant data but assumes something speculative that did not happen or was not likely to happen.Â The only thing certain about speculative assumptions is that you are more likely than not going to experience a Maalox moment in front of a jury of your peers.
Q: What assumptions were provided and which did you come up with on your own?
Without fail, there will be instances where historical data is not available or is not likely to be indicative of what is more likely than not going to happen but for or considering an event.Â This often is the case with young adults or individuals going through transition periods at work or personally.Â These instances will need an expert to consider telling their client that they may need a vocational expert or more data so not to speculate or testify outside of the scope of their ability.Â When presented with a wrongful death situation where no vocational assessment can be performed (since most people do not have the foresight to keep a vocational assessment on file), it becomes even more important to rely on things you know or can be proven like government studies or assumptions that do not overly assume something that would have had a mere possibility of happening but not a probability.
Q: Have you consideredâ€¦?
The death nail for many expert witnesses at trial or deposition is getting them to admit that they did not consider something material or relevant.Â Using government studies to derive damage assumptions like employer paid benefits, life expectancy, or household services is a wonderful way to consider all the not so relevant things that do not change your opinion of damages but make for a good soundbite to use against you at trial or a motion to exclude your expert testimony.Â This is because most government studies do not exclude individuals who are unhealthy, smokers, or overweight and therefore often may be the best and most indicative data to use to forecast something like life expectancy.Â Absent a medical opinion being offered or asked to rely upon, government statistics are relevant, reliable, and sufficient in most cases.
Q: Have you ever calculated this any other way?
Find a method and stick with it under the proper circumstances until you find a better one.Â Switching methodologies based on who hires you and whether it helps your client is a recipe for disaster.Â Eventually an unimpeachably neutral expert or hard-working paralegal will take note of the fact that you use one method when trying to suppress a damage or valuation amount and another one to inflate such calculations.Â Barring a very good defensible reasoning for doing so, there is nothing unimpeachably neutral about using a method simply because you were told to do so or its makes your client happy.Â Calculation reports, as opposed to valuation reports, should only be used to advise and are less reliable than properly developed valuation reports in compliance with NACVA standards.Â Unimpeachably neutral expert reports and expert testimony will ultimately have more weight in most court rooms than the testimony of an expert who has been told what to do and when to do it.Â Consistent and reliable work speaks for itself and will be the best exhibition of your true worth as an expert.
Q: No further questions.
Once you have considered all relevant known or proven facts and consistently applied reliable methods to those facts and data specific to your case, you will have produced an unimpeachably neutral report that will put you in the driverâ€™s seat at your next deposition or trial.Â By applying these unimpeachably neutral principles in your expert reports, you will make your testimonial experience less uncomfortable and earn the courts respect for you as an expert.Â A damage or valuation report prepared in compliance with NACVA and AICPA standards juxtaposed to an unimpeachably neutral mindset will leave very little room for an expert to make impeachable statements.Â This unimpeachably neutral approach expedites an expertâ€™s professional development and facilitates the creation of better deliverable expert reports.Â Moreover, unimpeachably neutral expert reports will typically translate into an enhanced ability to offer convincing and reliable expert testimony focused on the task at hand instead of the lie afoot.Â The best compliment a testifying expert can get is when opposing counsel or a judge thanks you on the record for educating the court with the truth, the whole truth, and nothing but the truth.
C. Zachary Meyers is a licensed Certified Public Accountant and Certified Valuation Analyst. Mr. Meyers has provided litigation support services in over 1,000 cases since 2011 as a consulting or testifying expert. His experience includes: authoring expert reports, expert rebuttal reports, and critiques related to economic damages, punitive damages, business valuation, and matrimonial litigation. Mr. Meyers has served as joint/court appointed business valuation expert in matrimonial litigation and facilitated equitable settlements for both business owner and non-business owner parties to matrimonial litigation. Mr. Meyers was elected to the National Association of Certified Valuators and Analysts (NACVA) Standards Board in 2016.
Mr. Meyers can be reached at: (304) 690-2619 or by e-mail to: email@example.com.