Litigation + Valuation Perspectives

Demystifying Valuation, Economic Damages + Forensic Accounting

CPAs Who Testify: Do You Have What It Takes? Part 2

Answering Counsel’s Question’s

When you are asked a question by your side’s counsel don’t blurt out your answer before the conclusion of the question. The jury needs to know that you have given some serious thought to what is being said. Even though you went over your responses with your side’s counsel previously.  On the other hand, don’t wait too long to respond because the jury will think you are unsure of your answer.

When the opposing counsel asks you questions, likewise, don’t be so quick to respond. Hesitating momentarily will also give your side’s attorney the opportunity to object to the question if it’s improper and, on occasion, if it’s a really, really tough question, your side’s attorney can object merely to give you some time to think of the best and most compelling response.

Sometimes opposing counsel will say ”I just want a simple ‘Yes’ or ‘No,’ Ms. Smith.” If your simple yes or no answer would leave the jury confused, simply turn to the judge and say, “Your honor, a simple yes or no answer would be confusing to the court. May I have permission to expand my response?” This will usually draw approval from the judge and a sneer from the opposing counsel.

Don’t volunteer information when responding to the opposition’s queries. Too many times I’ve seen CPAs expand their answers to areas that weren’t really asked about by the opposing counsel. Once the CPA does this, it provides fuel for the opposition. On the other hand, contrary to how you would answer questions at a deposition (where you try to answer yes or no to each question asked by the opposing counsel), you can be more expansive in your answers in the courtroom if doing so aids in clarification.

Honesty

This is not really a necessary tip. For you, it’s a given. Frequently the opposing counsel will ask you if you had conversation about the case with your side’s attorney before you came into the courtroom to testify. You answer emphatically “yes.” By the way, it’s perfectly okay for you to have discussed the case with your side’s attorney. In fact, you would be considered irresponsible if you had not, but the opposing attorney will try to make you feel like you’ve done something really rotten by having done so.

The querying attorney will then likely ask you to tell the court or the jury just what your side’s attorney told you about the case. This will be a really good place in the questioning to win a point for your side by answering, “My side’s attorney told me to be honest in all my answers on the stand.” Now, realistically, it would be pretty dumb for anyone to think that you, as a sworn-in witness, not to mention the fact that you are from one of the most respected professions in the country, would tell a fib. But this is persuasive stuff.

Teaching

I can’t tell you how many times I’ve participated as a witness in a litigation hearing involving financial statements or accounting concepts when I’ve glanced over and noticed one or two jurors dozing (obviously not when I’m on the stand, however). It’s true. Litigation hearings involving accounting and financial matters are not the most exciting cases for jurors to hear. Not only are the cases not exciting, often the jury hasn’t a clue as to what the CPA is trying to explain.

You must be a teacher in the courtroom. You must be able to present your views on a particular accounting or financial matter to the jury (and judge) in a manner that is simple, easy to follow, but not patronizing or condescending to the jury and judge. It’s a fine line to know how much detail to present on a courtroom chart or how much detail to show on an exhibit passed to the jury. Too much, and the jury may really become confused. Too little, and you may have lost the persuasion needed for your side.

Visual aids are excellent for demonstrating a point or to give analysis. Visuals aids can also make complex subjects easier to understand and greatly enhance the retention of information. The saying “A picture is worth a thousand words” is especially applicable to your use of visual aids in the courtroom.

The Look

It’s sad but true. You may have the greatest credentials as an expert witness as any client could ever hope to have for its side. But if you look too young, don’t have enough wrinkles in your face, or not enough gray hair, you may not be as impressive as a witness whose technical abilities pale in comparison to yours. This particular witness may even be someone who is 10 years your senior and has the appearance of being a college dean or chairperson of a Fortune 500 company. There is a psychological advantage to the older, distinguished looking CPA when it comes to being the most believable witness.

Composure

Above all else, never, never lose your composure on the witness stand. You should expect the opposing counsel to do his or her best to make you confused, angry, and argumentative; also to intimidate you and make you appear ignorant and unsure of your answers.

One of your greatest weapons against this tactic is to remain coolheaded and polite. Many times the opposing counsel will back off once he or she sees that he or she is not ruffling your feathers. The judge and jury will take note of your coolness under fire.

Summary

Even though you are not experienced in testifying or are very uneasy about having to do it, you can minimize your stress by properly preparing yourself for the witness stand and always keeping a cool head.

Don Bays, CPA/ABV, CVA, CFF