becoming an expert as an expert witness · 2013-09-12 · association of certified fraud examiners...

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, CPAABV,

CBA, M.B.A.

Managing Partner

DARTMOUTH PARTNERS LIMITED

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 DARTMOUTH PARTNERS LIMITED

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


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


Retention of Expert Witnesses

•One party to litigation

•Jointly by both parties

•Court-appointed expert


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.


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


Engagement Letters—Expert Mandate

•Phase One—Preparation of written expert opinion

•Phase Two—Pretrial assistance

•Phase Three—Attendance at trial


Phase One—Evidence Gathering

•Meetings with legal counsel, client, professionals, other experts engaged by client

•Prepare detailed information request list:

•Your client

•Opposing side

•If difficult to obtain, request court subpoena



•Be familiar with procedural rules in your jurisdiction

•Out-of-court examinations on discovery or depositions:

•Fact witnesses

•Expert witnesses



•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



•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


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 otherwise unavailable, any conclusion expressed should be qualified and the limitation on the scope of work clearly set out in the report



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



•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


Phase Two—Pretrial Assistance

•Critique of other expert reports •Gathering additional detailed evidence supporting expert opinion 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



•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



•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)


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)



•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



•Direct examination

•Cross-examination

•Redirect and re-cross



•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


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



•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



•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



•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 opposing 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)



•Redirect examination provides counsel the opportunity 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 of an expert’s testimony that may have impugned by opposing counsel



•Re-cross examination provides counsel the opportunity to ask further questions of the opposing client’s witness based on testimony given during redirect examination



•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




•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)




•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



•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)




•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




•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)


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

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


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


308 Square Saint-Louis Montréal (Québec) CANADA H2X 1A5 1 (514) 962 6896

[email protected]

http://www.google.com/profiles/canadienshockey

http://www.google.com/profiles/canadienshockey

becoming an expert as an expert witness · 2013-09-12 · association of certified fraud examiners...

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