If You Want an Expert, Hire a Boy Scout
As experts, donâ€™t we owe loyalty to ourselves and our profession?
The article draws a parallel between the qualities that are needed to obtain the Eagle Scout designation and those that are necessary to serve as an expert witness.
The Eagle Scout candidate sat firmly in his seat as questions were being posed to him by three of us sitting as the Board of Review. His future was in the balance as we determined whether, for the rest of his life, he would be an Eagle Scout.
The Eagle Scout rank is scoutingâ€™s highest, and as the board chairmanâ€™s admonition to the candidate stated, it is indicative of the paramount principles of scouting. Many strive for it.Â Few achieve it. Seeing â€śEagle Scoutâ€ť on a resume opens eyes and doors.
The candidate sat erect, focused on each question being thrown at him. A comment passed among the board members that this was akin to a cross examination. Perhaps, given the important effect on the candidateâ€™s future position, the vision of nine old men and women grilling an attorney before the U.S. Supreme Court would be a better analogy. Justice Scalia, played by board member Dave focused on the strict construction of the candidateâ€™s knowledge of the Scout Law.Â Perhaps like Justice Kagan, my questions were more focused upon its meaning and how the candidate fulfilled them.
The third board member, Jeff, an attorney whose courtroom dissection of opposing witnesses, well-known to his colleagues, was true to form, though here the rules of evidence were not in effect, and there was no ability for counsel to object as the board was both finder of fact and arbitrator of the proceedings.
In listening to the questions, it soon became clear that many of the traits to which society holds its Eagle Scouts are the same as those which are expected of an expert witness.
A Scout is Trustworthy
The first of the Scout Laws1Â unequivocally is one which is expected of the expert professional. Given the microscopic disembowelment which prospective experts undergo in the course of the judicial process, the requirement of trustworthiness is a given. A breach would mean certain professional death under the sword of the opposition.
A Scout is Loyal
Loyalty is looked upon favorably by society, a given fact. â€śScout, you observe a fellow scout using alcohol and then acting as the safety person for another scout rappelling on a cliff, what do you do?â€ť
Is the scoutâ€™s loyalty to his alcohol impaired friend superior to his duty to the scout at the end of a rope?
Does the expert owe loyalty to his employing party to alter his opinion or tell only half of the story? Is his loyalty to the court to disclose everything?
If he is loyal to himself and his professional opinion at the expense of winning the case, does this discredit him or does it raise him above those who walk the streets peddling themselves to anyone willing to pay?
Laura Tindall, a Florida colleague, in her book, Ethics Reference Guide for Expert Witnesses,2Â cautioned, â€śAs an expert witness, you will be challenged by moral dilemmas, whether or not you are aware of the existence of a moral dilemma.â€ť In her earlier 2001 study, she revealed that â€śindividuals having the highest moral maturity were those who (1) worked equally for both sides of the dispute, (2) worked in professional areas not involved in litigation, and (3) had taken at least 17 hours of ethics training in the past five years.â€ť
Scouting provided this candidate with weekly (if not daily) ethical training. â€śOn my first day as a Cub Scout I was told to do a good deed daily.â€ťÂ This is obviously simplistic in the grown-up world of litigation, but entirely applicable when viewed in the context of the observation of a late friend, a Circuit Court Judge, experts are hired opinions; I know what they are going to say before they open their mouths. Counsel would not let them testify if it would hurt their case.
As experts, donâ€™t we owe loyalty to ourselves and our profession, as well as our clients, not to say what counsel wants to hear?
Telling it like it is affords the attorney the opportunity to be a counselor, as well as an advocate. While many attorneys, confronted with an expert whose opinion is not favorable to their client might hunt for another expert, likewise, some may advise their client to settle. In either case, the expertâ€™s obligation is to his independent opinion.
The other 10 points of the Scout Law are no less important than those listed above. As these questions were being answered by the Eagle candidate, I thought of the final quality required by the Scout Law, reverence, and how I, as a professional, fulfill it. Each time I get on the stand I pray that I am truthful, that I will present facts which are helpful to the trier of fact, that no matter what is said by opposing counsel I will be appear friendly, be courteous and kind, that I will be obedient to the regulations of the court, that I be brave enough that the quite normal anxiety we all experience on the stand will not be outwardly apparent, that my appearance is a credit to both myself and my profession, that my engagement was performed efficiently, and lastly, I pray that opposing counsel doesnâ€™t cut my opinion to shreds.
Howard J. Schneider CPA, CVA, MAFF, Â is an editorial board member of the QuickRead. Once, when he worked part time while in college for the Litigation Support department of a New York CPA firm, Howard was handed a deposition to read; the case was of a massive accounting fraud and that became his summer reading list. At the beginning of the fall semester the auditing professor lectured on the case, misstating the facts. â€śExcuse me professorâ€¦.â€ť he said.Â That was over 40 years ago and it was the start of a career in forensic accounting. Asking questions and researching the answers came naturally. â€śI still get nervous before testifying, but that just keeps me on my toes.â€ť
Howard lives in Coral Gables, Florida, with his wife, Gail. Together they have two grown daughters and a granddaughter, whom Â he loves to spoil.Â When not working, he can be found behind a camera shooting pictures.
1 A Scout is: Trustworthy, Loyal, Helpful, Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave, Clean and Reverent
2 Tindall,Â Laura Jane.Â Ethics Reference Guide for Expert Witnesses ( Loxahatchee: Dynamics Ingenuity Inc., 2003, Â 109.