Litigation + Valuation Perspectives

Demystifying Valuation, Economic Damages + Forensic Accounting

CPAs Who Testify: Do You Have What It Takes? Part 1

Was there a time when you had to testify in court about a civil litigation matter regarding the company you worked for, or on behalf of one of your clients? Do you remember how it felt? Did your hands start to sweat? Did your heart start pounding when the opposing attorney started asking his or her questions of you? Did your mind seem to go blank when you were asked to give your full name and place of employment?

If you had these feelings you experienced what many who sit on the witness stand experience – terror! That is, unless you were unconscious when you testified.

The next time you’re required to testify on a civil matter for one of your clients, or for the company for which you work, here are some “tips” that could make your task easier. I’ve listed some of the edge and confidence boosters that have helped me, many times, in providing a persuasive and convincing argument to the judge and jury.

Preparation

You’ve heard the old adage “Practice makes perfect.” This holds true for testifying. You must meet, before the trial date, with the attorney who represents your client and review with the attorney what he or she will be asking you in the courtroom. You should give your answers similar to the way you would respond on the witness stand. If you have a pretty good idea of what your side’s counsel is going to ask you beforehand, you will have less stress on the stand.

It is also a good idea to practice answering hypothetical questions that the opposing attorney may ask you. Usually, your side’s attorney, with your input, can come up with a list of potential questions from the other side with which you can become familiar before you sit on the witness stand. If you go into a hearing cold, you will greatly assist the opposing side. By the way, you don’t want to practice your responses, for the first time, an hour before you’re supposed to testify.

Workpapers, Schedules, Lists, and Charts

Unless you want the opposing counsel to have access to your workpapers, do not bring these papers with you to the witness stand. In my early days of testifying as an expert witness, the attorney for my side suggested I take the workpapers I had prepared to support our client’s position on a civil matter up to the witness stand with me. That way, for some of the really technical questions he was going to ask me, I could check some of the fine details in my workpaper file.

During my pretrial conferences with my side’s attorney, I provided him with some pretty good documentation to support my testimony. I even wrote down several questions for him to ask me that would lead me smoothly through my testimony. I even put a copy of the questions in the workpaper file that I took up to the stand with me.
Once the opposing attorney saw me refer to my workpaper file, he started asking me questions about it. He then asked the judge to have the court take a break while he reviewed the contents of the file. Once the court reconvened, the opposing attorney made a very large point that the questions my side’s attorney was asking me were found almost verbatim on sheets within this file.

“You must meet, before the trial date, with the attorney who represents your client and review with the attorney what he or she will be asking you in the courtroom.”

Now, keep in mind, there is absolutely no problem with you helping your side’s attorney in drafting the accounting and financial questions he or she will ask you in the courtroom. A sly opposing attorney, however, can make you and your side’s attorney look like there was some conniving going on with your testimony. Judges and juries can be persuaded that something was amiss, even though there is nothing inappropriate about your helping draft questions to be asked of you.

I was quite embarrassed. I learned a very valuable lesson, however. Unless you absolutely without a doubt-have to have your workpaper files with you on the witness stand, and you don’t mind whether the opposing counsel has access to them, don’t bring them with you. And don’t leave a listing of the questions you helped your attorney to ask you in your workpaper files.

Eye Contact

One bit of advice on your witness stand demeanor that has proven invaluable to me time and time again is this: Look at the jury when you are responding to a question from your side’s counsel or from the opposing counsel. If you’re involved in a nonjury trial, look at the judge when you are answering. You will find that most juries who sit in on a civil case relating to technical accounting or financial issues have barely a clue as to the real meaning of “cost of goods sold” or proper footnote disclosures for “deferred income taxes.” The same thing goes for many of the judges.
However, once you look them in the eye and talk as if you are speaking to each juror individually, or to the judge, something magical happens. There is a feeling that you are really involving each juror, or the judge, in the trial and that you really care about making sure they fully understand the tough technical concept you are trying to get across. They appreciate you for that. And oftentimes, even if they don’t quite grasp the complete technical ramifications of the accounting principle you are trying to explain, they like you more than they did when you first came into the courtroom, and they have an easier time believing your side’s argument. Trust me.

Attitude

You can be the most technically astute CPA in all the country and you can have credentials that are a mile long which say you are the most authoritative person from whom the court has heard testimony. But, if you are arrogant, argumentative, overbearing, or try to be a stand-up comedian on the witness stand, neither the judge nor the jury is going to like what you have to say. Be polite and confident. You can even throw in some levity. Juries like to know that accountants aren’t really dull and that they actually have personalities.

Stay tuned as my next post will be part two which will include Answering the counsel’s question’s, honesty, teacher in the courtroom, your look and composure.

Don Bays, CPA/ABV, CVA, CFF