Witness Testimony: Your Day in Court

Preparing expert witness testimony that can go the distance

Although most expert witness engagements end without an opportunity to present your findings or testimony, this is no excuse to be lax in your analysis. In the handful of occurrences where expert witness testimony will actually be required, it must be clear, concise and thorough enough to go the distance during the proceedings. It must be assumed that every engagement will go to court and each expert witness scenario must be treated as such with regard to research and attention to detail. This overview provides valuable tools to construct a case summary that is so thorough, it often causes the opposition to settle out of court before proceedings even have a chance to begin.

Witness Testimony

In my experience, and that of most of my colleagues, approximately 95 percent of all expert witness testimony engagements end or settle prior to your deposition and court testimony.  So, the question arises, “How do I prepare  for deposition and my court testimony if it may only occur on approximately 5 percent of these engagements?”  One can resolve this dilemma by treating each and every engagement, without exception, as if it will require court room testimony.  Your professionalism in this regard will encourage opposing counsel not to want your testimony to be placed on the record.  So, the oxymoron of being an expert testifying witness is to perform the engagement so well that the possibility of your testimony will cause the opposition to settle the matter prior to deposition or court.   Some helpful tips are outlined below.

Engagement Letter

The initial step in any project is the engagement letter.  This is where you lay the foundation for your expert witness testimony.

An initial concern should always be what part of the work can or will be discoverable by opposing counsel?  One can limit this aspect by being engaged only by legal counsel and not by the defendants or plaintiffs in the matter.  It should also be made clear that all information received will be provided via legal counsel.  Depending upon how this process is developed and carried out, one may be able to limit discovery.  Even so, the engagement letter should put legal counsel on notice that there is the possibility that some or all of the work may be discoverable.  An example of such a clause in the engagement letter is as follows:

“I understand that at this time, I am being hired as a testifying expert to assist you in the above-mentioned matter.  You should understand that as a testifying expert, I may be forced, under court order, to disclose certain facts, documents, work papers, opinions and/or methodologies that have been developed, discussed and/or employed during my work in this case.”

The engagement letter should also contain confidentiality and work paper product ownership rights.   This will preclude further dissemination of your material.  Example clauses for these purposes can be met by disclosing the following:

“I agree to keep confidential and privileged any and all information in this matter, including any facts obtained, opinions rendered and methodologies employed, except to the extent I am required to disclose any such information by law or by order of a court of competent jurisdiction.  You should be aware that I have similar confidentiality clauses in engagement letters with other clients and accordingly, you agree to advise me immediately of any attempt by either party in this case to obtain a court order requiring me of disclosure of confidential information regarding other clients.

The working papers and other materials created by me during this engagement are the property of XXX, LLC, but you will have access to them for purposes of your work in this case.  XXX, LLC may keep one archival set of our working papers from this engagement.  Any documents in our possession belonging to you or your client will be returned to you upon request at the conclusion of our engagement.” 

One needs to assert independence as an expert witness in this matter, particularly that the fees are not contingent on the outcome.  One can best define this by a clause that may describe the following:

“To safeguard against any assertion or allegation that my work may, in some way, be influenced by, or, contingent upon, the outcome of my analysis – XXX, LLC requires that all outstanding invoices be paid in full, prior to issuing any final report.”

Finally, the expert should include a clause that formally provides that one is not guaranteeing any outcome as a result of the services rendered.  An appropriate clause for this purpose could be as follows:

“You accept and acknowledge that I have not made any warranties or guarantees of any nature with respect to the results, outcome or final developments to this matter or with respect to the economic, financial or other results which you and ABC, Inc. may experience as a result of the provision of my services.  I have not provided any advice to anyone related to this matter, nor are we in control of the preparation and/or management of any other matters.  All parties to this agreement understand that our involvement is limited to such actions as may legally be undertaken by XXX, LLC in its capacity of providing services in this agreement.”

These clauses, or ones similar in nature, will set forth an understanding to provide some discovery protection for the expert and the client.  Further, they will reinforce the expert’s r independence in the matter.

Information Gathering

The information gathering process begins with the expert’s review of the complaint, regardless if the expert is contemplating serving as an expert witness for legal counsel of the plaintiff or defense.  I emphasize “contemplating” because the expert should obtain a copy of the filed complaint upon initial contact by legal counsel.  A review of the complaint should certainly occur before the expert formally signs an engagement letter to provide services.

The expert’s independent review of the complaint will provide an overall sense of the circumstances surrounding the matter.  As an expert, one can then determine whether or not it’s possible to personally provide an opinion on the subject matter.  It is one’s credibility as an expert that is ultimately at risk, either in the contemplated case at hand or future matters involving similar circumstances.  Unfortunately, I have borne witness to certain colleagues, so eager to please either legal counsel and/or legal counsel’s client, that they provided expert witness reports and opinions that did not support the facts and circumstances of the matter.   If one happens to encounter such an opposing expert, this is akin to “manna from heaven.”

After the complaint review, – the expert can now have an educated, well-informed discussion with legal counsel on their need for expert witness testimony.  Part of the discussion should be a tentative list of information that one may need in order perform the engagement.  If  the requests are denied, substituted or otherwise controlled, the expert should reconsider  continuing with the engagement.  One never want to be put in a position to provide a manufactured outcome!  An expert that does not encounter the above resistance and is comfortable with the work can then proceed with signing the engagement letter with the aforementioned “clauses”, or those similar in nature, and a formal document request.

At this juncture, the client is the legal counsel of either plaintiff or the defendant.  Therefore, the engagement letter and document request will have to be addressed and formally provided to legal counsel.  Part of the document request should be any and all transcripts of depositions taken of the defendants and plaintiffs, including those of their CFOs.  This provides on-the-record perspectives that can be referenced later.

The expert should never endeavor to seek or have direct contact with either the plaintiff or defendant.  The expert may want to inquire of some information first hand.  On these occasions, have legal counsel arrange for a meeting and ensure that all necessary legal advisors are present during the entire discussion.  Bear in mind, this circumstance should be the exception rather than the rule.

During the information-gathering phase and throughout the entire engagement, e-mail correspondence should be limited.  An astute client/legal counsel should suggest, and the expert would be wise to accept, that e-mail transmissions regarding the case should be kept at a minimum.  Since e-mail may be ultimately subject to discovery, the documentation and transmission of case sensitive strategies will not enhance the expert’s overall performance.

Coming in October 2013—“Preparing for Expert Witness Testimony, Part II”

John J DeLuca, CPA, CVA, is Managing Director of Succisa Virescit, LLC, an international consulting firm specializing in the areas of forensic accounting, litigation support, business valuations and expert witness testimony.  Mr. DeLuca’s experience spans more than 30 years of practice. John can be reached at jdeluca@carpediemconsult.com