FRAUD FILES: Expert witness selection: substance over form

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In commercial litigation, many cases require some kind of expert. Whether it is a financial expert, an engineering expert, a fraud expert, a valuation expert, or some other type of expert witness, the process of selecting one cannot be taken lightly. The effectiveness of your expert witness could win or lose a case for you, so it is important to carefully consider what makes a good expert witness.

Qualifications and credentials

One of the first steps in evaluating your expert, is looking at the education and credentials of the person. The potential expert needs substance in this area to have a reasonable chance of standing up to any challenges by opposing counsel.

In addition to college degrees, you should look at the licenses and professional certificates held by the expert witness. What are the most important certificates in this person’s field? Does this person have them? Are the certificates held by the expert actually worthwhile?

Look first for the most respected credentials in a person’s field. For example, in the area of forensic accounting, it is important to look for someone with a Certified Public Accountant license. A professional without a CPA license may be perfectly qualified to testify in your case. However, the CPA license carries a lot of weight when qualifying an expert, so it certainly provides a significant advantage.

These days, it’s not uncommon for organizations to exist simply to generate revenue. They may offer a “certificate,” but a close examination could reveal that it’s nothing more than a “credential” that someone can purchase. It is important to look at how a certificate or credential is conferred, and confirm that the expert indeed has demonstrated some level of skill and has earned it.

In the fields of fraud and forensic accounting, Certified in Financial Forensics (CFF), Certified Fraud Examiner (CFE), and Certified Valuation Analyst (CVA) are the gold standard for certifications, and have strict requirements for obtaining the credentials. These are obviously very valuable to your case.

On the other hand, there are certificates one can purchase if she or he already holds the designation of CFF, CFE, or CVA. (And I’m sure the same is true in other professions).

The expert who has already earned one of the “qualifying” designations gets no benefit from purchasing another certificate, and neither does your case.

Sometimes less is more when it comes to credentials. Don’t assume that someone with eight sets of letters after her or his name is indeed qualified to be your expert witness. Instead, look at the most highly respected credentials in the field, and confirm that your expert has one or more of those. The quality of the credential is much more important than the quantity of credentials.

Real world experience

Next, it is important to look at a potential expert’s work experience and case history. The person should have significant experience in the field in which she or he will testify. Be careful when selecting a “firm” for your engagement. Who will be working on the case? If you select a firm, rather than an individual, you run the risk of having the work done by someone with little or no experience in the field. There is a risk that goes along with inexperienced staff, and you need to be aware of this when selecting an expert.

Someone with good technical qualifications isn’t necessarily the most effective expert in a courtroom. That is why you should look at the testimony history of the individual, and ensure that she or he has significant deposition and trial experience.

Some witnesses offer expertise in particular industries, while others may have no industry specialty, but possess subject-matter expertise. For example, a fraud investigator may focus his work in the hotel industry. Depending on your case, this depth of knowledge of hotel operations may be critical. In other cases however, the industry may not matter much, but profound knowledge of fraud schemes will be essential.

Experience in litigation should be a requirement when selecting your expert. It is important to have someone who is familiar with the litigation process and can anticipate the work that will need to be done. An experienced expert witness can advise you on potential pitfalls in your case, as well as areas of weakness that could be attacked in depositions and at trial.

Where to find your expert

There is nothing like a referral from a trusted colleague. Another lawyer who has worked with an expert can tell you about her or his analytical skills, communication style, integrity, adherence to deadlines, and effectiveness on the witness stand.

Selecting your expert based on an advertisement brings with it more risk. Everyone puts their best foot forward in advertisements, so there is no way to gauge how good the expert really is. An expert who writes articles for trade publications or websites offers the attorney a chance to preview her or his expertise. Based on the expert’s writings, you can probably make a fair assessment of how knowledgeable she or he is, and this is a good first step in selecting an expert.

Regardless of how you find your expert, take the time to talk with her or him in person or on the phone. Ask questions about prior litigation experience, potential approaches to your project, and possible strategies for winning your case. Request a current curriculum vitae, a list of publications written by the expert, and a history of testimony.

Carefully evaluate these things, and follow your gut instinct about the expert’s reliability and capabilities.

Tracy L. Coenen, CPA, CFF, is the president of Sequence Inc., a forensic accounting firm with offices in Milwaukee and Chicago. She can be reached [email protected].