The Fraud Files

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Tracy L. Coenen

More than ever, competent and dynamic expert witnesses are critical to winning legal cases. Even if a case doesn’t go to trial, a credible expert can be the key to settling the case for your client.

I believe that an expert witness has the opportunity to make or break a case. We all know that there are few chances to fix a bad opinion when you go to court. There is one chance to express the correct opinion and support it fully. A faulty opinion, or one with little reliable support, can doom a case.

Some attorneys have their preferred experts, while others get referrals from colleagues. Each attorney works with an expert witness in the way that she or he is comfortable. However, it never hurts to hear about it from the other side. This is my perspective on best utilizing your expert witness to her or his full value.

Finding the Right Expert

The most critical part of working with an expert witness is finding the right one. Naturally, the selection of an expert involves the evaluation of education and credentials. The examination of an expert’s credentials is a particularly critical process.

There are credentials that are earned through a bona fide process, such as the CPA (Certified Public Accountant), CFE (Certified Fraud Examiner), and CVA (Certified Valuation Analyst). Then there are credentials that are meaningless because they are simply purchased, none of which are even worth mentioning. It is important to research which credentials truly enhance the credibility of the expert.

In addition to credentials, a potential expert’s case history should also be examined. Good technical experts do not necessarily make effective experts in a courtroom.

Testimony experience can be an important piece to the puzzle. Your expert must possess the ability to effectively communicate findings to a judge and jury, or all the technical skills in the world may become meaningless.

Certain experts might need to have expertise in particular industries. Other cases may not require industry expertise, but just subject-matter expertise. This is a critical distinction that should be made early in the case.

It is important to carefully analyze both the strengths and weaknesses of the potential expert’s background and experience. Not only must the expert have knowledge and expertise in the subject matter at-hand, she or he must also possess good analytical skills, be able to think and respond quickly and accurately, be a good communicator, possess integrity, and be able to complete casework in a timely fashion.

One less talked-about skill that some experts possess is the ability to work collaboratively with an attorney while standing her or his ground when necessary. It is important to be a team player and take direction from the attorney, but it can be equally important to strongly advise the attorney when necessary. This includes providing the opinion that is true and correct, rather than giving the opinion that the attorney desires and expects.

Finally, it’s important to know whether your expert will actually be performing the work on your case, or if a junior associate will be handling the bulk of the work.

While the work of a junior associate may cost less, you will be sacrificing experience. Also, if the testifying expert has not performed most of the substantive work, she or he may not be familiar with all the documentation involved in the case. That lack of familiarity could be a liability during testimony. Consider whether a cost savings is worth the potential of a lower quality work product.

Start Early

There are many reasons to get your expert on board early. The most important reasons have to do with the selection of the expert. Good experts who testify well are not always easy to find, especially in specialty areas. An early start gives an attorney the best chance of finding the proper professional to consult on the case.

An early start also helps ensure that once you find the right expert, you are actually able to retain her or him. You don’t want opposing counsel to retain your preferred expert first. Particularly in specialty areas, competition for good experts can be tough, and an early start assures you a better chance of retaining the best expert.

It’s also important to start early so that you can be sure the expert has time in her or his schedule for your case. Without a deposit, the best experts will not set aside time for your matter. It’s disappointing to lose the right expert for your case, just because you didn’t secure a commitment early enough.

Give the expert plenty of time to consider the issues, examine the information, and issue a report. Most experts will tell you that while it may be a bit more exciting to complete a case in a rush, having extra time usually leads to a more thorough and thought-out report. More time is almost always better than less time.

Working Together

A good expert can help the attorney with the formulation of a strategy related to that expert’s area of specialty. For example, even though an attorney may be aggressively defending a claim, it can be helpful to discuss potential damages with a forensic accountant early in the case. A good expert will point out strengths and weaknesses in the strategies as they relate to her or his expertise.

An expert witness may be able to offer help throughout the discovery process. For example, a forensic accountant can help with requests for production of documents, particularly as it relates to accounting records. It is helpful to have someone familiar with the accounting process assist the attorney with formulating requests. Once documen
ts and answers to interrogatories are received, the expert can review them and suggest follow-up requests.

The same expert can also be helpful with depositions. A forensic accountant can suggest lines of questioning or specific questions that should be asked. The expert might sit in on a preliminary hearing or deposition to offer the attorney assistance with questioning. Financial matters, for example, can become highly technical, and a qualified expert can help decode some of the numbers.

It is important to give your expert enough latitude to fully examine all pertinent documents and information. Sometimes attorneys limit this process too much, in order to save fees. While this makes economic sense, it is not always best for the case.

Find out what the expert would like to review and why, and then decide together whether that analysis is critical to the expert’s formation of an opinion. Make sure that the expert has appropriate access to key people. If you have selected the right expert for your case, you should be willing to trust her or his recommendations in regard to the examination of information.

It is important to prepare the expert for testimony early. Attorneys sometimes wait until a couple of days before a trial to begin preparing experts. Earlier preparation is beneficial to the expert, because it allows her or him time to review the notes several times before going on the witness stand. Consider starting early with trial preparation, with possibly a short meeting immediately prior to the trial to finalize the preparation.

Being a good expert is about completing the work that legal counsel needs, while advising the attorney about the alternatives and opinions. The legal process can be collaborative, and a good expert should be willing to help guide the attorney when appropriate. An early start, coupled with a willingness to fully utilize the expert, can produce the most useful results.

Tracy L. Coenen CPA, MBA, CFE is the president of Sequence Inc, a forensic accounting firm with offices in Milwaukee and Chicago. She is a nationally-recognized expert on fraud and financial investigations, and can be reached at [email protected] or 414.727.2361.