Litigation + Valuation Perspectives

Demystifying Valuation, Economic Damages + Forensic Accounting

Testifying experts must be careful of what they write

I have had the good fortune of having the opportunity to write articles for numerous local and national accounting and financial publications. In addition, I have authored many blogs which have appeared on my firm’s website. Every so often, I am requested to produce a copy of one of my articles to an opposing party’s attorney in connection with a litigation case where I have been retained as a testifying expert. The attorney’s intent is to review my written piece to see if there is anything that might pertain to the current case at hand – and, whether I can be impeached.

For example, the attorney may ask me a question on the witness stand for which I have given an answer in front of the court. After my answer, she may come out with an “Aha” moment saying, “Sir, you said something entirely different in this article you wrote. Will you please read, for the court, what you wrote, right there in paragraph two of the second page? And now you are saying something different? Isn’t that right? Are you sure you want to say that?”

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Fortunately, I’ve always been able to back up any words I’ve written in the articles I publish. Because I’ve not written any impeachable sentences, the issue has never been one to confront me in the court room.

So, what are my guiding principles that keep me from being cross-examined on articles I’ve written? There are two: 1. Keep the writing interesting for the reader; and, 2. Always write with the idea that my article or blog will be scrutinized by the opposing attorney in any case where I am retained as a testifying expert.

Feel free to contact of our Henry+Horne professionals to help answer any questions.

Don Bays, CPA

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