What Is an Expert Witness? Possesses expertise and specialized - - PowerPoint PPT Presentation

ASSOCIATION OF CERTIFIED FRAUD EXAMINERS 2013 ACFE Canadian Fraud Conference September 9, 2013

Becoming an Expert as an Expert Witness

Drew Dorweiler, CFE, FRICS, CBV, ASA, CPAABV,

CBA, M.B.A.

Managing Partner

DARTMOUT TMOUTH PARTN TNER ERS S LIMIT ITED ED

Montréal  Chicago

What Is an Expert Witness?

• Possesses expertise and specialized knowledge in a

particular subject beyond that of the average person

• Expertise by virtue of education, training, skill, and/or

experience

• Trier of fact may officially and legally rely on the

expert witness’s opinion (scientific, technical, etc.)

• Differs from a fact witness

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Types of Expert Witnesses Include

• Scientists
• Engineers
• Medical professionals
• Academics
• Financial professionals
• Business valuators
• Chartered accountants
• Forensic accountants
• Certified Fraud

Examiners

• Law enforcement
• Government agents
• Security professionals
• Detectives and private

investigators

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Expert Opinions

• Must be within scope of expertise
• Purpose of opinion is to assist the trier of fact
• Opinion may be written, oral, or both
• Expert required to be independent

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Retention of Expert Witnesses

• One party to litigation
• Jointly by both parties
• Court-appointed expert

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Independence of Experts

• Avoid perception of being “hired gun”
• Should not have concurrent business or personal

relationships with parties to litigation

• Fees must not be contingent on outcome of

fraud case or quantum of damages, award, etc.

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Independence of Experts

• Desirable to be retained by both plaintiffs and

defendants in your practice

• Desirable to be retained by a variety of clients

and lawyers

• Professional fees should be fully collected prior

to testimony to avoid perception of bias

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Engagement Letters—Expert Mandate

• Phase One—Preparation of written expert
• pinion
• Phase Two—Pretrial assistance
• Phase Three—Attendance at trial

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Phase One—Evidence Gathering

• Meetings with legal counsel, client, professionals,
• ther experts engaged by client
• Prepare detailed information request list:
• Your client
• Opposing side
• If difficult to obtain, request court subpoena

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Phase One—Evidence Gathering

• Be familiar with procedural rules in your jurisdiction
• Out-of-court examinations on discovery or depositions:
• Fact witnesses
• Expert witnesses

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Phase One—Evidence Gathering

• Be familiar with rules on what is privileged vs.

discoverable

• Evidence that is reviewed and deemed irrelevant vs.

that which is relied upon

• Maintain originals or copies of all evidence relied

upon in working paper files

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Phase One—Evidence Gathering

• Interviews should only be conducted by qualified

personnel (your client, opposing party, third-party fact witnesses)

• Take detailed physical record of the interview (e.g.,

video, transcript, notes)

• Independent, third-party corroboration of assertions

made by interviewees should be obtained

• Hearsay evidence admissible for expert

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Phase One—Report Writing

• Comply with applicable professional reporting

standards (form and content)

• Work performed by persons having adequate

technical training and proficiency in the subject of expertise (due care and objective state of mind)

• If access to essential information is denied or
• therwise unavailable, any conclusion expressed

should be qualified and the limitation on the scope of work clearly set out in the report

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Phase One—Report Writing

Expert reports should strike a balance between: a) providing sufficient detailed support explaining approaches adopted, procedures performed, and conclusions obtained; and a) containing extraneous information that could be used to weaken the credibility of the expert

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Phase One—Report Writing

• Thorough review of written reports, schedules, exhibits,

and assumptions is critical to maintain credibility of the expert opinion (quality control)

• In a fraud context, an expert should never express a

conclusion of guilt (or innocence) in an oral or written report

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Phase Two—Pretrial Assistance

• Critique of other expert reports
• Gathering additional detailed evidence supporting expert
• pinion and assumptions
• Detailed cross-referencing of expert report to facilitate

testimony

• Preparation of explanatory charts, detailed computations,

exhibits to be filed at trial

• Gathering documents to be put to opposing party’s expert

during cross-examination

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Phase Two—Pretrial Assistance

• Consideration of evidence arising subsequent to

report issuance date (possible report revision)

• Consultation with other experts (including non-

testifying experts retained to evaluate case)

• Preparation of trial binder to be used as an aide-

memoire during testimony

• “Mock trial” questioning by counsel

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Phase Two—Pretrial Assistance

• Attendance at negotiation strategy settlement

sessions (could occur during Phase One, Two, or Three)

• Be careful not to jeopardize your independence

(e.g., offering settlement advice to client)

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Phase Three—Attendance at Trial

• Trial
• Criminal or Civil
• Judge, Tribunal, Jury
• Hearing (e.g., Expropriation Panel)
• Arbitration (one or more party-appointed arbitrators)
• Mediation (non-binding)

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Phase Three—Attendance at Trial

• Plaintiff’s witnesses testify first, followed by

those of Defendant

• Frequently, expert witness may listen to other

expert and fact witness testimony

• May discreetly communicate observations to counsel
• Possibility for exclusion from courtroom

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Phase Three—Attendance at Trial

• Direct examination
• Cross-examination
• Redirect and re-cross

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Phase Three—Attendance at Trial

• Direct examination:
• Qualification of expert (demonstrate credentials to be

accepted as an authority in the field)

• Summary of salient portions of expert report
• Make sure your client’s counsel is intimately familiar with your

report, methodology, technical concepts, exhibits you intend to file to assist the court in understanding your testimony

• Avoid “cross-examination” by your client’s counsel

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Phase Three—Attendance at Trial

• Cross-examination:
• Opposing counsel questions expert as to:
• Contents of report
• Procedures followed (or omitted) during mandate
• Professional qualifications
• Assumptions made in arriving at opinion
• Alternative hypotheses
• Contents of authoritative reference sources

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Phase Three—Attendance at Trial

• Cross-examination:
• Purpose of cross-examination is to attack the

credibility of the expert and her/his opinion

• Opposing counsel will attempt to portray the expert as

either incompetent or biased/dishonest

• Opposing counsel will ideally hit a “home run” if the

expert is disqualified and/or expert opinion is assigned zero weight by the court

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Phase Three—Attendance at Trial

• Many different types of cross-examination tactics

exist:

• Hostile, provocative, and confrontational
• Friendly, seemingly agreeable, “leading the opposing

expert down the garden path”

• Seemingly disorganized (Colombo) hoping to catch

witness in a contradiction

• Persistently attempting to “put words in the expert’s

mouth” and lead the expert to false conclusions

• Demanding a “yes or no” answer

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Phase Three—Attendance at Trial

• Bring all the documents and information (including

computer files) to court with you that may be required to support your testimony

• Remember that any documents and information in

your possession in court may be requested by

• pposing counsel to be produced as an exhibit
• Witnesses in cross-examination are not allowed to

discuss their testimony with anyone during recesses of the court (e.g., lunch or overnight)

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Phase Three—Attendance at Trial

• Redirect examination provides counsel the
• pportunity to ask further questions of his client’s

witness based on testimony given during direct or cross-examination

• Provides an excellent technique to clarify points
• f an expert’s testimony that may have impugned

by opposing counsel

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Phase Three—Attendance at Trial

• Re-cross examination provides counsel the
• pportunity to ask further questions of the
• pposing client’s witness based on testimony

given during redirect examination

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Phase Three—Attendance at Trial

• Courtroom “Dos”:
• Always bear in mind that you are present as an expert to educate

the court

• Dress conservatively
• Speak clearly, slowly, and politely
• Always focus your attention on the judge(s) when testifying
• If the judge(s) are taking notes, allow them to finish writing before

continuing your testimony DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three—Attendance at Trial

• Courtroom “Dos”:
• Address the judge(s) as “Your Honour” or an equivalent

respectful term

• Take as much time as you require to speak, whether in direct or

cross-examination (it is your testimony and you should feel free, as the court expert, to deliver a comprehensive explanation supporting your opinion)

• Respond clearly, completely, and honestly to questions from

the judge(s)

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Phase Three—Attendance at Trial

• Courtroom “Dos”:
• Be aware of prior testimony and/or published articles or

texts that opposing counsel may attempt to use against you

• Direct judge(s) to specific exhibit and page number when

referring to a document

• Remember credibility is paramount for an expert witness

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Phase Three—Attendance at Trial

• Courtroom “Don’ts”:
• Talk or shuffle papers audibly when court is in session
• Turn on your mobile phone ringer
• Be late for court
• Hesitate to take all the time you require to retrieve a

document from your files or perform a requested calculation (e.g., it might be a good idea to state that you require __ minutes to consult your files)

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Phase Three—Attendance at Trial

• Courtroom “Don’ts”:
• Allow opposing counsel to abruptly cut off your answers to

their questions—insist on providing full answers (this is your testimony)

• Be anything other than completely honest in your testimony
• Appear to be biased or an advocate for your client’s position
• Be reluctant to state that you do not recall something

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Phase Three—Attendance at Trial

• Courtroom “Don’ts”:
• Take cross-examination personally (remain emotionally detached)
• Feel compelled to add more to your answer (i.e., counsel’s trick of

silence)

• Attempt to verbally combat or sarcastically spar with opposing

counsel when in the witness box

• Be afraid to admit that you are wrong (if you are)

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Remember, the most satisfying words you will hear on the stand are:

“Mr. / Ms. Expert, no further questions. You are dismissed.”

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Thank you / Merci beaucoup

Drew Dorweiler, CFE, FRICS, CBV, ASA, CPA•ABV, CBA,

M.B.A.

http://www.google.com/profiles/canadienshockey http://ca.linkedin.com/in/drewdorweiler

DARTMOUTH MOUTH PARTNERS NERS LIMITED ITED 308 Square Saint-Louis Montréal (Québec) CANADA H2X 1A5 1 (514) 962 6896

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