Why Did I Select This Expert?

Most consultants, business owners, and attorneys understand that a good expert witness needs to meet core criteria of giving an independent opinion, being able to support that opinion under a vigorous cross examination, and communicate with and persuade a jury. But what else is important? Joe Epps explains.

In a recent out-of-state deposition, the opposing attorney asked me if I believed that there were qualified forensic accountants in that state.  I answered “Yes.”  He then asked me why I was retained instead of a local forensic accountant.  I thought of my charm, wit and, of course, rugged good looks.  But, my answer was that my client knew I would give my honest opinions and that I would be able to support those opinions on the witness stand.  I was rather proud of my (not so) humble response.

Since that deposition I have been thinking about what an attorney should expect from their forensic accounting, or any other, expert.  The first step is that the expert being considered must have the proper qualifications (certifications and experience).  Once the qualification issues are confirmed, the next issue involves the critical skills of the expert witness, such as:  (1) giving an independent opinion; (2) being able to support that opinion under a vigorous cross examination; and (3) the expert’s ability to communicate with, and persuade, a jury.  Deficiency in any of these skills is a deal breaker.  Any expert who cannot fulfill each of these expectations is of no use to the attorney, regardless of how qualified they are from a credential and background standpoint.

Another critical expert witness skill is his or her ability to make the attorney’s job just that much easier.  Practicing law is a challenging and difficult profession.  Going through a trial is, of course, the most challenging part of practicing law.  During a trial, the attorney must deal with many legal issues and the varied personalities of their witnesses.  The attorney is stuck with some witnesses; however good or bad they are.  For example, the representative of the plaintiff or defendant and fact witnesses may be crucial to the case; however, the attorney has no real choice in selecting such witnesses and must deal with their idiosyncrasies.  The good part is that most often they only have to deal with such witnesses one time.  The expert witness however is quite different.  Over the course of a career, an attorney may choose to work with a specific expert on many occasions.

In some cases, the attorney selects the experts they are going to work with.  In other cases, the expert has been selected either by the client or by a prior attorney who preceded them on the case.  When the attorney makes the selection, or at least influences the selection, they should expect to receive, at a minimum, each of the following attitudes and services from their expert witness.

The expert should know the basics of their responsibilities, some of which include:

• Confirming discovery deadlines and meeting those deadlines
• Asking how relevant case law impacts the opinions to be formed by the expert
• Suggesting documents and information to request
• Providing questions for depositions of witnesses in the expert’s subject area
• Report writing requirements in local courts
• Exhibit preparation
• Outline their own anticipated trial testimony to provide the attorney a starting point

These and other responsibilities should be part of the package the expert brings to the relationship. Then there are the personal attributes that the attorney should be able to expect from the expert.  These attributes include:

• Friendly and helpful to everyone on the attorney’s legal team
• Responsive to the attorney’s needs
• Anticipate ways in which they can assist the attorney
• Arrive for appointments on military time (if you arrive exactly at the appointed time, you are at least 10 minutes late).  The attorney should not have to wait for the expert.

During cross examination of the expert witness, an opposing attorney will sometimes imply that the expert gets repeat business by providing their client with what the client wants to hear.  This is, of course, absurd.  Telling the attorney what the expert thinks the attorney wants to hear is a prelude to disaster.  Trial attorneys want to win and when they rely on an expert, they want the expert to provide the most supportable opinion possible.  If an expert wants repeat business from an attorney, they should be totally reliable and professional.  This includes telling the attorney things they may not want to hear.

The expert should also be the easiest witness the attorney has to work with in preparing for trial.  The expert should adapt their schedule and personal needs to meet the needs of the attorney whenever possible.  The expert should be upbeat and inject energy into the relationship.  In short, attorneys should expect their expert to be more than technicians—they should be professionals who provide the trier-of-fact with evidence critical to the case and who avoid adding stress to the workload of the attorney.

In summary, repeat business with attorneys means that the expert provides all of the services and attributes discussed above and by doing so; they make the life of the attorney easier. 

Joe Epps, CPA/ABV, CFE, CVA can be reached as jepps@eppscpa.com