Litigation + Valuation Perspectives

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Here’s how to fail when testifying as an expert

I first started testifying when I was a cop on the Tucson Police Department many moons ago. Those cases all involved the commission of a crime – some of the misdemeanor type and others involving felonies. After my career as a police officer, I became an accountant and then, eventually, a CPA. As a CPA I started getting calls to testify as an expert witness in civil cases. My civil case testifying started around 1984. I’ve been doing it ever since.

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Over the years of testifying as an expert and observing other CPAs and non-CPAs testifying I have noticed conduct on the part of expert witnesses that, from my perception, hurt their testimony as far as judges and juries were concerned. As a result, I have come up with a list of testifying “no-no’s” that CPAs should strive to avoid as best they can when in the courtroom. If a testifying CPA does not care how they come across in front of judges and jury members, and therefore do not really care if they are persuasive in the courtroom, here is a list of things to do to help provide bad testimony:

  1. Do not prepare for the hearing. Try to testify based on your best recollection of what your original file had in it to support your opinions.
  2. Do not confer with your client’s attorney prior to the trial. You don’t need to know what they are going to ask you because you are “good on your feet.”
  3. Once in the courtroom argue with the opposing attorney during your cross-examination. This will show the judge and jury what a great debater you are.
  4. Never make eye contact with the judge. Do the same with the jury members. Your knowledge of the issues and your opinions is sufficient. It is not necessary to engage anyone.
  5. Use highly technical language to explain your opinions. This will show the judge or jury how smart you really are.
  6. Speak in a low, monotonous voice. It’s really okay if one or two of the jury members nods off.
  7. Take an extra long time to think about your answer to an attorney’s question. This won’t show those in the courtroom that you are not sure of what to say but, rather, that you are a careful thinker.
  8. Always expand your answers to questions from the attorneys to areas for which you were not asked to address. The more you can do this it will use up time available to ask you other questions. It also shows the judge and jury the breadth of knowledge that you have.
  9. Dress casually for the courtroom. This will show the judge or jury that you are truly a “down-to-earth” person who does not put on any pretended airs. No one will think you are disrespecting the judge and jury or the decorum of the courtroom.

These are some of the “do not’s” that I’ve run across. And, I’ll admit, I was guilty of a few of them when I first started testifying in the olden days.

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Don R. Bays, CPA, ABV, CVA, CFF