Providing Effective Litigation Services (Part 4 of 4)

Practice techniques used to serve as an effective expert witness

In this final part of Mark Shirley’s litigation services series, the focus turns to practical tips for new and experienced expert witnesses. These include what to consider before engaging, how to organize the file, the need to understand the vernacular and preparation, as well as the need to understand the discovery process. Impressions are also shared with respect to the use and advantages of visual aids, and how to conduct direct and cross-examination testimony.

The courts evaluate proffered expert opinion testimony for application of flawed methodologies. 

Actual damages must be proven and not speculative and conjectural, preponderance of evidence that damages are reasonably certain.¹ 

The Court held, on appeal, that the expert’s testimony should not have been admitted as he had not included the methodology most experts consider essential in partnership valuations.²

 “… We believe that Taxpayers’ Daubert claim is misguided for they are attacking the correctness of the ultimate valuation more than the reliability of the expert’s methods in deriving the value of the shares of stock.³ 

…Joiner teaches that methods must be linked to conclusions by stronger ties than the expert’s mere ipse dixit.”⁴ Ipse dixit – a bare assertion resting on the authority of an individual.⁵

District court found that economist had developed his views for litigation, had not employed same methods on previous occasions to determine market value, and had not subjected his methods to peer review. Economist had failed to take into account actual prices and comparative markets⁶

 “Plaintiffs criticized the Camus study and the testimony based upon it, claiming that it was outdated, statistically suspect, and untrustworthy and that evidence presented at trial regarding longer work lives contradicted the study’s conclusions.”⁷

Exclusion of plaintiff’s proposed expert testimony because plaintiff introduced no evidence to show the expert’s methodology was reliable.⁸

Expert Witness Engagement Administration

Discovery and Production of Work Papers 

All materials prepared, accumulated or referenced are subject to discovery. Checklists, quality control documents, notations and commentary should be completed or included in client file under the presumption that they will be subject to discovery and read by opposing counsel and expert.  Work papers, notes and commentary should unequivocally support the expert’s opinion and conclusions. Keep files free of extraneous and incomplete commentary. Develop procedures to control return and destruction of draft reports. Purge all draft reports, including copies provided to counsel. Regularly review contents of active file and purge duplicate and extraneous documents.

Files should be well organized, a standard indexing system for all documents produced during discovery, work papers and research should be developed.  Copies, facsimiles and created documents included as work product or work paper should be clearly marked. Original documents must be segregated and protected from inadvertent alteration. Three-ring, indexed binders are preferable to “audit” style folders for document organization.  A separate correspondence binder should be maintained to document the chronology of the litigation. 

Caution should be used when recycling prior reports. Microsoft Word and Word Perfect provide utilities for retrieving prior revisions.  Client confidentiality may be compromised. 

Do not allow any conference to be audio or videotaped.  The attorney may not be able to protect such recordings from discovery. If an interview must be audio/video recorded, do not engage in any superficial conversation during the interview. Any speculation, opinions or controversial statements may be used to discredit your future testimony. 

Pre-Trial Preparation

Technical terminology/vernacular, theories, methodologies and approaches must be understood by the attorney.  The opposing expert can be intimidated by a literate and knowledgeable cross-examination, and attorney tutelage helps eliminate “double talk” and evasive answers. 

Research jurisprudence for similar fact patterns and evaluate the testifying expert’s opinion.    Organize work papers, jurisprudence, authoritative and demonstrative evidence following report format to facilitate retrieval during trial. Reference underlying data in report margins (testimony copy only). Commit report and work papers to memory and be able to recite applicable professional standards and guidelines promulgated by each of the accrediting organizations. Identify “throw-away” issues.  Test analogies and comparisons.

Review prior deposition testimony for strengths and weaknesses. Anticipate opposing counsel’s cross examination based on assessment of weaknesses in supporting documents, assumptions and opinion reference supporting data and location in margins of your report. Anticipate a motion in limine and a Daubert pre-admission challenge.

Determine whether current testimony (yours and opposing expert) contradicts opinions expressed in published texts or authored materials and previous trial testimony. Research prior opinions of the presiding judge, disposition and demeanor towards testifying experts, reliance on proffered expert testimony in previous opinions, level of knowledge and experience with the technical concepts at issue.

Research opposing counsel’s trial techniques.  Review opposing expert’s curriculum vitae, deposition and report. Identify areas of divergence with your report. Reference supporting data and location in margins of both reports.

Prepare your direct examination questions. Explain the answers and technical concepts to client’s attorney. Prepare cross-examination questions and answers for examination of the opposing expert. Apparent weaknesses in your expert report or deposition should be explained during direct examination, use direct to rehabilitate prior errors, omissions and confusion.

Determine content and composition of visual aids. Practice using visual aids. Reduce testimony to terminology and references the Court and jury can easily understand and identify with.

Visual Aids 

Visual memory is more lasting than auditory memory. Visual aids should communicate conclusion instantly. A storyboard approach with stepped learning is best. Limit narrative to four lines and a single idea or conclusion.  Do not use slides or transparencies, which require reducing courtroom illumination. 

Visual aids should be professionally prepared. Multi-colored (base colors) and simple.   Place a small copy or label attached to back of each exhibit for quick identification.  Microsoft Power Point and/or Excel can be a powerful augmentation to oral testimony; less is more.  Use advanced animation and annotation sparingly, as it distracts from the purpose of the visual aid.

Technology is a tool, but “old school” teaching skills allow you to take command of your testimony. Always bring a chalkboard or flip-chart for real time explanations. Opposing expert’s visual aids are viable tools. Copies of opposing expert’s visual aids will be provided during pre-trial disclosure. Write on report or make notations on visuals supporting your opinion. Post-it notes create dramatic visual images.

Numbers, analysis, calculations or other technical material should be presented last and in a simplistic, descriptive manner. The detail is in the report, trial notebook and work papers. The court is interested in the “bottom line” [conclusion] not the extent of your oratory skills.

Discovery documents and exhibits can be transferred to CD-R/W or USB thumb drive to facilitate retrieval at trial. Bring a laptop computer and portable color printer.

Trial Notebook (Bench Book or Exhibit Book)

A trial notebook is an assemblage of all information and exhibits the expert will testify to or about.  The organization of the trial notebook should follow the direct examination questions, the report format, and unequivocally support the assumptions and conclusions presented in the report. A copy of all excerpts from the trial notebook to be introduced into evidence should be reproduced in color and heavy stock paper; this includes copies of any visual aids to be introduced as evidence.

Post-Trial Administration

Prepare a critique of your testimony with emphasis on identified weaknesses in preparation and presentation. Request a critique of the engagement from client’s attorney. Compare both critiques and initiate corrective measures to engagement acceptance, work-program and trial preparation and presentation procedures.

A copy of final judgment and written reasons should be requested to annotate the client file and research file.  Solicit an itemized list of documents to be returned to the client or destroyed, and obtain an itemized receipt for the documents returned.

Written archive procedures should be developed for record retention and scheduled destruction. Written notification should be provided client or client’s attorney identifying the target destruction date. The client and client’s attorney should be notified in writing immediately prior to the date scheduled for document destruction. It is advisable to retain engagement records for at least three-years subsequent the prescription period for appeal, lesion or other redress. Paper files require significant physical storage space. Files converted to electronic media are cost efficient to archive.

Testimony in Deposition and at Trial

Deposition testimony 

As deposition testimony is directed towards discovery, the examination of witnesses is conducted under less formal conditions. The solicited testimony may be used to limit or narrow the expert’s testimony at trial. A discovery deposition is also used to evaluate a witness’s strengths and weaknesses; i.e. preparation and presentation. The opposing attorney’s role at deposition is different than at trial. The deposition is primarily conducted as direct examination and exploratory.

The expert’s demeanor, appearance and protocol/etiquette are important in conveying a professional and competent persona. First impressions are critical. Therefore, dress conservatively (professionally) and comfortably. Project confidence by being relaxed and always tell the truth.  Eye contact should be maintained with the examining attorney, not your client’s attorney. Responses to questions should be professional, polite, responsive, serious and careful, but not evasive. Avoid sarcasm, belligerence, arguments or loss of composure. Depositions are for discovery about the witness not a debate of the merits of the case. 

Always avoid excessive pontification and verbosity. Do not volunteer any documents or research. If opposing counsel doesn’t ask for it, do not provide it. Do not agree to loan library services, paid publications/periodicals or texts to opposing counsel. All copies should be made by firm’s personnel or by bonded courier service and an itemized receipt for the produced documents obtained from counsel.

Listen to the question and pause before answering to provide a relaxed opportunity to formulate a short concise answer. Be alert for questions which connect unrelated concepts, are repetitive, leading or rephrased. It is permissible to request that complex/extended, leading, confusing or rhetorical questions be rephrased or abbreviated. Always return the answer to your conclusion, observations and opinion.

Client’s legal counsel may object to specific questions, listen to objection and construct your answer accordingly. If client’s legal counsel instructs you not to answer, do not do so.  Avoid getting friendly. Avoid “off-the-record” conversation and banter. 

Always provide fair and truthful answers without volunteering information. “I do not know” is preferable to guessing. Never attempt to rephrase a question asked as you will most assuredly answer a better question than the one asked. Client’s counsel may ask questions at end.

At the first indication that the deposition has become confrontational, your mental organization begins to wane or you become fatigued, ask to take breaks or for “off-the-record” discussion with client’s counsel.

The deposed expert has the opportunity to control the pace and tempo of the deposition. Lead opposing counsel to ask questions which support your opinion. You may not have all the right answers, but you have answers to questions opposing counsel does not know exist and is unprepared for. Use the deposition to evaluate opposing counsel’s knowledge, preparation and examination techniques (style).

Direct Examination Testimony

It is imperative to develop the proper mental attitude before entering the court room; rested, prepared and focused. 

The objectives of expert testimony can be simply stated:

Keep it Simple: Answers should be simple and brief, yet concise using visual aids to emphasize opinion. Explain technical principles and concepts as though instructing a seven-year-old child.

Make it Real: Use storyboards and a “stepped learning” approach. Examples and analogies will help explain complex issues in segments emphasizing references with which the court or jury can easily identify. Practice using the visual aids during a mock trial with staff.

Make it Memorable: The structure, language and presentation should engage the court and invite their participation in owning the conclusions you will present. 

In structuring expert testimony, the presentation should be divided into four (4) components: 

• State the objective
• Describe professional and judicial/statutory standards and methods
• Explain documents and analysis
• Tie conclusion to the objective, documents, analysis and method

The main conclusion and key supporting opinions should be stated early and often. This structure provides the court with a logically organized frame of reference. During direct examination, answers should be returned to the conclusion and the conclusion should lead to supporting points/evidence. All arithmetic detail should be presented last and use simple mathematic expressions.  The court or jury should be engaged and participate in the calculation thereby having ownership. 

Tempering language and delivery to the knowledge base and experiences of the court or jury is critical for effective communication. Complex and technical vernacular must be avoided. Albert Einstein provides invaluable advice in communicating complex theorems:

• “If you cannot explain it simply, you don’t understand it well enough.”

• “Make things as simple as possible, but not simpler.”

Image and style should be professorial. It is the objective of expert testimony to educate the court regarding matters beyond the court’s general understanding. A relaxed, conversational, confident and professional delivery/tone should be developed. Verbal presentation skills are developed through preparation and presentation of technical lectures, actual testimony experience and mock trial participation.

Advocacy of your opinion is permissible and that conviction should be evident. Words should be chosen which present unequivocal meaning. The presentation should be direct and articulate. Answers should invite open-ended, follow-up questions. The misuse of technical terminology by opposing counsel should be tactfully and professorially corrected. Most attorneys and the court are unfamiliar with accounting/tax anachronisms, lexicons and vernacular and therefore common language substitutes should be adopted. Each technical term and anachronism should be explained prior to their use and without being prompted to do so. The definition of terms and anachronisms should be repeated often during testimony.

Develop a rapport with the court by maintaining eye contact with the judge or jury. Address the judge as “Your Honor.” The judge may ask questions that indicate he or she is attentive and listening. 

Cross-Examination Testimony

Preparing for cross-examination concerns what to avoid doing rather than presenting the data, methods and conclusion to the court. Cross-examination is opposing counsel’s opportunity to focus on a few critical elements of the expert testimony presented during direct examination. The court will provide some protection from overly aggressive and combative cross-examination. Client’s legal counsel may or may not intercede. Strong cross-examination testimony is frequently the most critical part of expert testimony, requiring a relaxed, professional and confident demeanor. 

A prepared and confident expert can place opposing counsel at a disadvantage by changing pace or providing “leading” answers.  Speak with clear articulation and listen to the entire question before answering.  Do not interrupt the attorney before the question is completed and there is an opportunity for an objection. Answer only the question asked, not the question anticipated.

Do not take offense with opposing counsel’s aggressive or condescending attitude. He or she is simply asserting client advocacy.  Do not argue or debate with opposing counsel. The objective of cross examination is to discredit your testimony and a loss of professional decorum accomplishes that objective.

Do not get drawn into hypothetical discussions.  A hypothetical based on partial facts will change the relationship of other facts. A hypothetical is not truth, but conjecture and speculation. When required to answer a hypothetical, do so conditionally and explain why the hypothetical is presumptuous and incorrect.  The factors, which would be affected by the hypothetical and unintended consequences, should be emphasized as well as the mutually exclusive nature between the actual outcome and the hypothetical conditions. Avoid answering questions beginning with “Isn’t it true that…,” which is a standard predicate for cross-examination questions.  Ask that leading, ambiguous or rhetorical questions are re-phrased.

Unpleasant questions should not be evaded, but responded to decisively. It is advantageous to address identified issues in the expert report and/or deposition testimony during direct examination. Credibility is impaired when evasive and obfuscating answers are presented.

Technical questions require technical answers, not yes/no. If a yes/no answer is required, answer conditionally, followed by a more detailed explanation.

Do not volunteer information to opposing counsel or their expert during testimony or during recess. Be alert for questions which inaccurately summarize prior testimony or take it out-of-context.

Do not get frustrated. There will be an opportunity during re-direct to address any misstatements, confusion or issues raised during cross examination.

Conclusions

Preparation for proffered expert opinion testimony is systematic and can be summarized by the following: 

• Evaluate the potential engagement prior to acceptance 

• Understand the judicial process

• Know the applicable professional standards 

• Know the applicable rules of court

• Know the rules of evidence applicable in jurisdiction the expert opinion will be proffered

• Adequately plan the engagement

• Execute the engagement pursuant to the work program

Potential expert testimony must be evaluated continuously during the engagement based on the following: 

• Does the practitioner have the training and experience to competently complete the engagement?⁹

• Is the practitioner’s knowledge, skill, experience, training or education (competence) sufficient to qualify him or her as an expert in the specific professional discipline?¹⁰
  

• Does sufficient relevant data exist from which the professional can proffer a conclusion or inference?¹¹

• Are the supporting facts and data the “type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject…?”¹²

• Is the analysis and testimony the “product of reliable principles and methods” or are they speculative and untested?¹³

• Have the methodologies been published in professional publications addressing similar issues or fact patterns?¹⁴

• Does the analysis and testimony comply with methods and reasoning which are sufficiently established to have gained “general acceptance” in the particular professional discipline?¹⁵

• Have the established principles and methods been correctly applied to the facts at issue?¹⁶

• Is the opinion convoluted, over technical or otherwise prejudicial and subjective?¹⁷

• Is there an overreliance on unconfirmed representations by the client or legal counsel?¹⁸

Providing effective expert testimony requires developing communication skills which can only be accomplished through experience. Preparing technical writing and presentations provide a non-adversarial venue for refining those skills. There is no substitute for experience, and no technical practice aid can provide adequate preparation for providing effective expert testimony.

1.  Autrey v. Williams and Dunlap, 343 F.2d 730, 742 (5^th Cir. 1965); F & F Transfer, Inc. v. Tardo, 425 So. 2d  874, 876 (La. App. 4^th Cir 1983); Hall v. Arkansas-Louisiana Gas Co., 368 So. 2d 984, 991 (La. 1979); Walsh v. City Mortgage Services, Inc., 102 B.R. 502 (M.D. La. 1989)

2.   Frymire-Brinati v. KPMG Peat Marwick, 2 F3d 1311 (7th Cir. 1993)

3.   Gross v. Commissioner, 272 P2d. 333 (6th Cir. 2001)

4.   Children’s Broadcasting Corp. v. The Walt Disney Co., 245 F.3d 1008 (8^th Cir. 2001)

5.   Black’s Law Dictionary, 1997

6.   Atlantic Richfield Co. v. Farm Credit of Wichita, 226 F.3rd 1128 (10th Cir.2000)

7.   Marcel, et al v Placid Oil Co, 11 F.3d 563; 1994 U.S. App. LEXIS 580

8.   Pappas v. Sony Electronics, Inc., 2000 U.S. Dist. LEXIS 19531, *25-38 (W.D.Pa.Dec. 27, 2000)

9.   Fed.R.Evid. Rule 702

10. Christopherson v. Allied Signal Corp., 939  F.2d 1106 (5^th Cir. 1991); Adams v. Chevron U.S.A., Inc., 589 So.2d 219 (La.App. 5th Cir. 1991); Tuf Racing Products, Inc. v. American Suzuki Motor Corp,, 223 F2d (7^th Cir. 2000); EFCO Corp. v. Symons Corp, 219 F.3d 734 (8^th Cir. 2000); Wilkinson v. Rosenthal & Co., 712 F.Supp. 474,478 (E.D.Pa. 1989); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358 (5^th Cir. 2000)

11. Fed.R.Evid. Rule 702; Fed.R.Evid. Rule 401 et seq.; Whelen, et al v. Tyler Abell, et al, U.S. Dist.Ct. Dist. Of Columbia, Civil Action Nos.  87-442 & 87-1763 (SS); Atlantic Richfield Co. v. Farm Credit of Wichita, 226 F.3^rd 1128 (10^th Cir. 2000); Marcel, et al v Placid Oil Co, 11 F.3d 563; 1994 U.S. App. LEXIS 580; Elcock v. Kmart Corp., 233 F.3^rd 734, 750 (3^rd Cir. 2000); United States v. Sparks, No. 99-6387 (10^th Cir. May 2, 2001); Gannett Co., Inc v. Kanaga, 750 A.2d 1174 (Del 2000); Christopherson v. Allied Signal Corp., 939  F.2d 1106 (5^th Cir. 1991)

12. Fed.R.Evid. Rule 703; Christopherson v. Allied Signal Corp., 939  F.2d 1106 (5^th Cir. 1991)

13. Fed.R.Evid. Rule 702 ; Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 572, 579 (1993); Frymire-Brinati v. KPMG Peat Marwick, 2 F3d 1311 (7^th Cir. 1993); Gross v. Commissioner, 272 P2d. 333 (6^th Cir. 2001); Atlantic Richfield Co. v. Farm Credit of Wichita, 226 F.3^rd 1128 (10^th Cir. 2000); Pappas v. Sony Electronics, Inc., 2000 U.S. Dist. LEXIS 19531, *25-38 (W.D.Pa.Dec. 27, 2000)

14. Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 572, 579 (1993); Gross v. Commissioner, 272 P2d. 333 6^th Cir. 2001

15. Frye v. United States, 293 F.1013, 1014 (D.D. Cir. 1923); Christopherson v. Allied Signal Corp., 939  F.2d 1106 (5^th Cir. 1991); Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 572, 579 (1993)

Mark Shirley, CPA/ABV, CVA, MAFF, CFE is partner at V & L Consulting of Baton Rouge, LA.  He has concentrated on the disciplines of business valuation, forensic accounting, and financial analysis/modeling. He has provided contributions to a wide range of respected publishers and periodicals including Wiley Law Publications, Aspen Legal Press, The Value Examiner, The Practical Accountant, CPA Litigation Services Counselor, The Gatekeeper Quarterly and The Journal of Forensic Accounting among others.

Mr. Shirley has authored courses for NACVA’s Fundamental, Techniques & Theory; Forensic Institute and the Consultant’s Training Institute and is a charter member of the LCPA’s Litigation Services Committee. He has been an adjunct faculty member at the National Judicial College, University of Nevada Reno since 1998 and serves on the Advisory Panel for Mdex Online; The Daubert Tracker, an on-line Daubert research data base.  Mark can be reached at marks@dandwcpa.org.