Impeaching the Unimpeachable
My Testimonial Experience Prior to Taking the Witness Stand
One unintended consequence of writing unimpeachably neutral expert reports is that often nobody wants to hear what you have left to say. After having spent nearly two years working as an expert witness, authoring an uncounted number of expert reports, subpoenas, discovery requests, deposition questions, and cross-examination questions, I had yet to testify in a single trial or deposition. Getting a chance to testify had become my Red Ryder, carbine action two-hundred shot range model air rifle. With each case that settled, I couldnâ€™t help but to feel like the forensic accounting version of Ralphie, being told Iâ€™d shoot my eye out if a case ever went to trial. This fifth article of the Unimpeachable Neutrality series offers an inside look at the objectives, techniques, and strategies that defined my testimonial experience prior to taking the witness stand.
One unintended consequence of writing unimpeachably neutral expert reports is that often nobody wants to hear what you have left to say.Â After having spent nearly two years working as an expert witness, authoring an uncounted number of expert reports, subpoenas, discovery requests, deposition questions, and cross-examination questions, I had yet to testify in a single trial or deposition.Â Getting a chance to testify had become my Red Ryder, carbine action two-hundred shot range model air rifle.Â With each case that settled, I couldnâ€™t help but to feel like the forensic accounting version of Ralphie, being told Iâ€™d shoot my eye out if a case ever went to trial.Â This fifth article of the Unimpeachable Neutrality series offers an inside look at the objectives, techniques, and strategies that defined my testimonial experience prior to taking the witness stand.
Relax and Take Notice
I will never forget the day I was served with my very first Notice of Deposition Duces Tecum.Â My secretary said she had never seen someone so happy to be served by a process server.Â When opposing counsel wants to take an expertâ€™s deposition, the expert will be served a â€śNotice of Deposition Duces Tecumâ€ť which is a combination of a â€śsubpoena duces tecumâ€ť (a subpoena to produce certain tangible things) and a â€śsubpoena ad testificandumâ€ť (a subpoena for oral testimony requiring the person named to testify at deposition or trial).Â The words â€śduces tecumâ€ť are Latin meaning â€śbring with youâ€ť, as in the attorney is demanding that you â€śbringâ€ť your tangible case file â€świth youâ€ť to the deposition.Â While the notice will often provide a long list of items that the attorney wants you to bring to the deposition, as well as definitions clarifying the meaning of words like â€śdocumentâ€ť, what the notice wonâ€™t tell you is that you are only required to bring the â€śtangibleâ€ť items on the list that exist.Â Moreover, if you are asked to produce something that does not exist at the time of the subpoena, you have no duty to create it.Â The best way to avoid the subpoena headache and ensure that the court gets everything needed to understand your expert opinion is to issue every report, no matter the jurisdiction, as if it is in Federal Court.Â This is something I try to do in every expert report I issue, as it is no coincidence that the list of items commonly requested in a â€śNotice of Deposition Duces Tecumâ€ť are often identical to the requirements for expert disclosures detailed in sections (i) through (vi) under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure (FRCP).
Simon Says Watch Out for Repetition
Repetition is a common technique used by attorneys at trial or deposition.Â The objective of this line of questioning is to establish a rhythm or tempo in their line of questioning to make a financial professional say something they donâ€™t mean.Â Sometimes attorneys will do this just to see if they can control the tempo of the deposition, which would imply they can also control the tempo at trial.Â This is because like the game â€śSimon Saysâ€ť, attorneys use repetition as a tool to induce an expert witness into mindlessly answering a question incorrectly.Â The following is an example of how this line of questioning might play out.Â I have annotated each line with the â€śSimon Saysâ€ť equivalent in parenthesis at the end of each question and answer.
Q: Â Â Â Â Â Â Would you agree that the assumptions used to calculate an expertâ€™s opinion of damages should be based upon case-specific facts and evidence? Â (Simon Says Touch Your Nose)
A:Â Â Â Â Â Â Â Â Of course, yes. Â (Touches Nose)
Q: Â Â Â Â Â Â And is it fair to say that the facts and evidence provided to you in this case include the Plaintiffâ€™s historical Form W-2â€™s for yearsâ€™ 2014, 2015, and 2016? Â (Simon Says Touch Your Ears)
A:Â Â Â Â Â Â Â Â Yes. Â (Touches Ears)
Q: Â Â Â Â Â Â Now, you also obtained information from more general sources or government statistics to derive assumptions like life expectancy? Â Correct? Â (Simon Says Touch Your Toes)
A:Â Â Â Â Â Â Â Â Yes. Â (Touches Toes)
Q:Â Â Â Â Â Â Â So, is it fair to say that we can all agree that you very simply took those case-specific facts and evidence and applied them to non-case specific assumptions deriving from things obtained on your own, like government statistic for life expectancy? Â (Now Touch Your Knees)
A:Â Â Â Â Â Â Â Â No, I would not describe government statistics for life expectancy as non- case-specific things.Â That would be a disingenuous statement at best, as the selection of this data is very much based upon the case-specific facts of the case relative to the age, sex, and race of the Plaintiff.Â (Still Touching Toes)
My Way or the Highway
Another technique used by attorneys and others at trial or deposition is what I like to call â€śMy Way or the Highwayâ€ť.Â The objective of this line of questioning is to trick the expert into saying that the way they have performed a calculation is the only appropriate way that said calculation can be done.Â This is, with rare exception, a clear falsehood because there are often multiple ways and generally accepted methods used to calculate an amount, measurement, or assumption like a discount or growth rate.Â The following is an example of how to respond to this line of questioning:
Q:Â Â Â Â Â Â Â So, you’re saying in your opinion that’s the only proper way to do it?
A:Â Â Â Â Â Â Â Â No, I would never say that it’s the only proper way to do it, but I would say to a reasonable degree of professional certainty, the way that I have done it is correct and would have arrived at a correct number.
Q: Â Â Â Â Â Â So, you think this is the only appropriate professional way for me to determine the intended loss?
A: Â Â Â Â Â Â Â No, I would not say the only appropriate way.Â I would never say that, but what I would say is that the way that I have done it is appropriate and will render a correct number that does not include nontaxable deposits.
If a Dog Were a Cat, Would it Still Bark?
Another technique used by attorneys and others at trial or deposition is what I like to call â€śIf a Dog Were a Catâ€ť.Â The objective of this line of questioning is to get the expert to state that their analysis or calculation of damages would be wrong if certain assumptions were found out to be false.Â The hypothetical analogies used by attorneys in this line of questioning is kind of like saying, â€śIf a dog were a cat, would it still bark?â€ť.Â The answer would be that â€śI based my calculation upon the assumption that it was a dog so unless Iâ€™m told itâ€™s not a dog, the question of whether it barked or meowed is irrelevant and moreover would be a totally different calculationâ€ť.Â Below is a more realistic example of how to respond to this line of questioning:
Q: Â Â Â Â Â Â What age was the Plaintiff on the date of injury and what age did you use as the assumed date of retirement for the Plaintiff?
A:Â Â Â Â Â Â Â Â He was 45 years old at the date of the injury.Â I stopped my calculation of lost earnings at age 67, which is the assumed date of retirement, sir.
Q: Â Â Â Â Â Â What if I were to tell you that the Plaintiff suffered from a condition that would medically reduce his life expectancy to age 55? Â Wouldnâ€™t that make your calculation wrong?
A: Â Â Â Â Â Â Â No.Â That would not make my calculation wrong, as my calculation was based upon the joint probability of life and employment for a 45-year-old, high school educated, Caucasian male, without a work disability.Â It is not my understanding that the Plaintiff suffered from a medical condition that would result in a reduced life expectancy but would be glad to run that calculation should the court find that to be correct and true.
Sometimes the hardest part about being a forensic expert is knowing that you are bound by protective order to never speak of, mention, confirm, or deny some of the largest forensic accomplishments of your career.Â Being a settlement facilitator is a virtuous gem that loses its sparkle after that big case, sure to make national headlines, settles before trial or deposition.Â The key is to never look at a case or result of a case as a win or a loss, but rather as another step closer to Unimpeachable Neutrality.
C. Zachary Meyers, is a licensed Certified Public Accountant (CPA) and Certified Valuation Analyst (CVA) who has been retained in over 1,500 engagements as a testifying expert, consulting expert, or joint/court appointed expert for civil, criminal, tax, and matrimonial litigation matters, arbitrations, and mediations. He has testified and been qualified as an expert in Forensic Accounting, Business Valuation, Retirement/Pension Valuation, and Income Tax in Federal District Court, State Court, and Family Law Court. Mr. Meyers was elected to the National Association of Certified Valuators and Analysts (NACVA) Standards Board in 2016 and appointed vice-chair in 2017.
Mr. Meyers can be contacted at (304) 690-2619 or by e-mail to czmcpacva@CZMeyers.com.