TESTIFYING AS A WITNESS

Question 2

Testifying expert

Answer 2

give opinion testimony when specialized knowledge is needed to help the jury understand evidence or determine a fact in issue

Question 3

conflict of interest (expert witness)

Answer 3

exists when an expert’s ability to objectively evaluate and present an issue for a client will be impaired by any current, prior, or future relationship with parties to the litigation

Question 4

Consulting experts

Answer 4

hired to provide technical assistance to the attorney in preparing the case

Question 5

Relevant testimony (expert witness)

Answer 5

assist the jury in understanding the evidence or determining a fact at issue. To be relevant, the proposed testimony must have a tendency to make the existence of any fact more probable than it would be without the evidence. Testimony is not relevant if the jury can make its own determination without expert testimony.

Question 6

Reliable testimony (expert witness)

Answer 6

product of reasoning or methodology that has a reliable basis in the knowledge and experience of the relevant discipline and is based on adequate data

Question 7

Depositions of Expert Witnesses

Answer 7

sworn testimony given by a party or witness upon questioning by counsel for one of the parties before trial and outside of court

Question 8

Narrative questions

Answer 8

broad, opened ended questions that allow experts to present their opinions in their own words with minimal prompting from the lawyer

Question 9

Hypotheticals

Answer 9

fictional situations, analogous to the act in question, which clarify and highlight particular aspects of the dispute

Question 10

Myopic Vision

Answer 10

entails getting the expert to admit to a great amount of time being spent in the investigation of a matter, then selecting an area to highlight about which the expert is unsure or has not done much work. This area might not be central to the issues in the case, but it must be relevant to the conclusions reached. Then, the opposing counsel will make a large issue of it and prove that the expert’s vision is myopic in that the work was limited in extent or scope and, as such, substandard. At the same time, the matter of fees could be drawn in to show that large sums were expended to have this “obviously incomplete” work done.

Question 11

he four main functions of all expert testimony and offers advice on fulfilling each assigned duty:

Answer 11

• Establish the facts. You must first develop a strategy to collect and examine the
documentation in the case. The discovery process, which is a mechanism for full
disclosure of all knowledge pertinent to the case, usually yields a vast amount of paper,
which the expert then must sift through to make a preliminary classification of relevance
• Interpret the facts. Tie together cause and effect relationships with the data and the facts for
the technical basis of your case. Do not be fooled by correlation that seemingly links
cause and effect but holds no theoretical justification.
• Comment on the opposing expert’s facts and opinions. Develop a good understanding of the
opposing experts by reviewing their educational background and experience. Read their
publications. Probe for weaknesses that your side might exploit. Oftentimes trials
become a battle of the experts. Prepare for the battle with as much intelligence as you
can muster. Take apart the opposition’s expert report, which represents the other side’s
best case, piece by piece. Your attorney needs to know the most intimate details about
the facts and opinions contained in that report.
• Define the professional standards in the particular area of your opponent’s expertise. One of the most
critically important ways an expert is used in trial is to define the “standard of care” exercised by fellow professionals in the field. Standard of care has been traditionally
defined on the basis of judgement normally exercised by professionals in good standing.
Additionally, the professional must be informed or aware of current practices and
promulgation. Obsolete practices are now considered by the court to be negligent
practices. Thus, professionals must exercise reasonable, informed judgement in carrying
out their duties. You, as the expert, will be called upon to define the professional
standard and to measure that against the standard of care exercised by the professional(s)
on the other side.

Question 12

Keep the following six tips in mind when preparing an expert report:

Answer 12

• Be brief.
• Avoid ambiguity or inexact language.
• Avoid generalisations; be specific.
• Add charts or graphs where appropriate.
• Reference your work.
• Meticulously check the report for accuracy and neatness.

Question 13

narrative version of the events

Answer 13

This detailed summary of the facts of the case serves as the raw material for
rendering an official opinion.

Question 14

Generally, before allowing an expert to testify before the jury, the judge will make three
determinations before allowing an expert to testify before the jury:

Answer 14

• Is the person qualified as an expert witness?
• Will the expertise of the witness assist the jury in understanding the evidence or determining a fact at issue; in other words, is the testimony relevant to the facts of the case?
• Is the testimony reliable?

Question 15

To qualify as an expert, counsel must establish that the witness is

Answer 15

sufficiently knowledgeable on the subject at hand by showing formal education, skill, or experience.

Question 16

For skilled investigators, deposition provides a golden opportunity to hear the other side’s
case aloud. The opposition may set ulterior goals as well, including:

Answer 16

• To learn new information or confirm existing facts
• To appraise the expert’s ability as a witness
• To lock the expert into a hard-to-defend position
• To create a written record for future impeachment

Question 17

sk that a long or imprecise question be

Answer 17

rephrased or broken into smaller components

Question 18

In cross-examination, do not respond

Answer 18

too quickly. Counsel for your side might wish to

interpose an objection to the question.

Question 19

sk for a repetition of the question or clarification if

Answer 19

you do not fully comprehend it.

Question 20

Opposing counsel also might attempt to take psychological control of a witness by:

Answer 20

• Using physical presence to intimidate.
• Non-stop eye contact.
• Challenging space of the witness.
• Asking questions at a fast pace to confuse witness.
• Not allowing the expert to explain or deviate from the exact question.

Question 21

Safety

Answer 21

This approach often is taken by not attacking the expert and hence lulling him into a feeling
of false security. Then, opposing counsel might find a small hole that quickly can be
enlarged. This approach often is characterised by being friendly and conciliatory, by which
the jury is made sympathetic to the cause of the opposing counsel. Opposing counsel also
might attempt to achieve a certain amount of association with the witness that will make the
witness want to help the opposing counsel to bring out information. Doing so may result in
the witness giving information that otherwise would not have been given. With this
additional information, it might be possible to find a chink or hole in the evidence and open
it further.

Question 22

Contradiction

Answer 22

Opposing counsel might use leading questions to force the witness into a hard or
contradictory position. Alternately, counsel can establish the credibility in court of a
potentially contradicting document or quote from other articles written by experts in the
field. If these documents or articles are in contradiction to the expert, then an admission can
be obtained from the expert as to that contradiction. If a contradiction exits, the expert
might be drawn into an argument as to who is the most appropriate or experienced person.

Question 23

New Information

Answer 23

Opposing counsel may introduce new information that the expert might not be aware of.
This normally is done to introduce confusion in the witness’ mind in the hope that the
witness might contradict himself or develop a series of alternate scenarios, given the new
information to show that the existing report and opinions are no longer of value.

Question 24

Support Opposing Side’s Theory

Answer 24

This approach recognises an expert’s qualifications and evidence. The same information
used by the expert is then interpreted by opposing counsel in a different fashion to support
an alternate theory. By getting the expert to agree to the alternate interpretation of the facts
and the alternate theory, the opposing counsel, in effect, has made the expert a witness for
the other side. This technique is useful to obtain concessions from the witness that would
damage his conclusions and, ultimately, his credibility.

Question 25

Bias

Answer 25

This method draws the expert’s counsel and the expert together to show possible collusion
as to the evidence being presented and hence to demonstrate bias. This can be shown if the
opposing counsel can determine that the expert’s counsel had instructed the witness as to
what to say or by limiting the expert’s scope and hence his conclusions. This approach also
can focus on the question of whether or not the expert was told by his client what to do and
look for. With this approach, opposing counsel might attempt to show that the expert
overlooked important documentation in an effort to assist his client.

Question 26

Confrontation

Answer 26

This method involves the use of a confrontation of wills to put the witness into a situation
where he might lose emotional control and show anger. Once a witness has exploded,
credibility normally disappears.

Question 27

Sounding Board

Answer 27

This method uses the witness as a sounding board to reacquaint the jury with the favourable
aspects (to opposing counsel) of the case. This technique often uses the “is it not true?” and
“would you agree with me?” approach. Constant non-stop agreement is useful to browbeat
the expert. In the eyes of the judge and jury, agreement with various questions raised by the
opposing counsel also might be assumed to be a general concurrence with the position of
opposing counsel.

Question 28

Volunteering Information

Answer 28

One of the most successful techniques in cross-examining a witness is for opposing counsel
to ask a question and after the witness has answered, to wait until the witness feels
compelled to fill in the silence and starts to talk again. Watching an expert destroy his own position by qualifying and expanding and giving
plausible alternatives, by continuing to expound at length on an answer, when a simple “yes”
or “no” would have served the purpose is not a pretty sight, (except for opposing counsel).

Question 29

Fees

Answer 29

This method attacks the witness on the basis of taking an inordinate amount of time for the
result given. Further, the attack might indicate a lack of complete work and might be
correlated to the fee charged. This method often is related to “bias” and “myopic vision.” It
might be suggested that the witness and his opinion are, in fact, biased. This technique often
builds to a conclusion in which the opposing counsel arrives that the work was superficial
and unprofessional, yet that a great deal of money was received by the expert for this and
other areas of service to the client. The inference is that the testimony was purchased or that
the expert was paid to overlook facts contradictory to the conclusions reached.

Question 30

Terms of Engagement

Answer 30

This technique normally is employed by obtaining the original engagement letter and
examining the terms of engagement. Opposing counsel can then show that the expert
intended to look only at various items in support of his client and glossed over alternative
theories, generally to the detriment of the opposition. As such, the witness could be
portrayed as partial.

Question 31

Discrediting the Witness

Answer 31

Discrediting the witness is based upon the concept of proving that the expert is unworthy to
be a credible witness instructor to the court. This often can be accomplished by showing
that the expert is currently or has previously been grossly biased, prejudiced, corrupt,
convicted of criminal activities, shown to engage in immoral activities, made inconsistent
statements, acquired a reputation for a lack of veracity, and/or exaggerated his qualifications. Discrediting also could consist of looking at the quality of the expert’s educational background to reveal any other unusual activities that might bias the witness or exclude him from the court as an expert.

Question 32

Another tactic often used by attorneys on cross is “kill the messenger.” These attacks are of
a more personal nature, and generally include some of the following:

Answer 32

• The examiner is unqualified.
• The examiner displayed unprofessional behaviour during the examination (such as asking
personal or sexual questions during interviews).
• The examiner had a conflict of interest.
• The examiner was harassing (phone calls at home, threatening voice mails, etc.).

Question 33

Failure to Follow the Standards of the Profession

Answer 33

It is important to understand that the Fraud Examiners Manual does not set forth standards.
The Manual provides the CFE with information, suggestions, and methods for conducting a
fraud examination. A CFE is always required to follow the Code of Professional Ethics, but
he or she is not required to follow what is set forth in the Fraud Examiners Manual.

However, if a fraud examiner deviates from the normal investigative methods set forth in the
Manual, he or she should have an explanation as to why it was appropriate and explain that
the Manual is only provided as guidance.

Question 34

Expressing an Opinion on Guilt

Answer 34

A fraud examiner, in conducting examinations, will obtain evidence or other documentation to
establish a reasonable basis for any opinion rendered. No opinion shall be expressed regarding
the guilt or innocence of any person or party.

Question 35

Harold A. Feder in his book, Succeeding as an Expert Witness, suggests keeping the following in
mind while you are working on a particular case:

Answer 35

• Keep an open mind.
• Do not approach a case with predetermined conclusions as to causation, culpability,
fault, or damage.
• Remember that attorneys and clients come to you with facts which might be slanted,
either accidentally or purposefully.
• Carefully follow your own well-established investigative steps; develop forms,
procedures, and processes which will ensure that you do not overlook evidence.

Question 36

While preparing to testify or present evidence, remember the following:

Answer 36

• Prepare your material completely.
• Know your material thoroughly.
• Plan your testimony in advance.
• Be alert.
• Listen carefully.
• Carefully consider each answer, and pause before answering.
• Be honest and avoid bias.
• Clarify—use simple words.
• Keep your cool.
• Maintain professional pride and integrity throughout.

Question 37

Actions which maintain and improve your current credentials and make you a better expert
witness include:

Answer 37

• Pursuing continuing education and training opportunities.
• Reading trade journals and publications.
• Joining and participating in professional societies and associations.
• Teaching, lecturing, and holding seminars.
• Attending specialised seminars and workshops.
• Writing for trade journals and publications.
• Taking advanced computer courses.