How to excel as a testifying expert was a question that several panels at this year’s AICPA FVS Conference in Las Vegas addressed. One discussion was particularly insightful in that it gave attorney and expert perspectives of how expert testimony fits into the attorney’s presentation of the case and what makes for a successful collaboration.
The panel was “Cross-Examination … Inside the Brain of an Attorney,” and the speakers were Randall J. Dean, Esq. (Chapman Glucksman) and Neil Beaton (Alvarez & Marsal Valuation Services). Here are a few key points for attorneys and experts to keep in mind.
Think ‘theme’: In working up a case, the attorney typically develops a theory of the case, a theme, that guides his or her presentation to the judge and jury. The attorney looks to the expert to support the theme and uses cross-examination of the opposing expert to debunk the other side’s theory and reinforce the validity of his or her theme.
Dean explains that the retained expert must understand the theme the retaining attorney offers and how the expert’s work fits into the narrative. It’s critical that the expert does not allow the opposing counsel to lead him or her astray on cross-examination. For the testifying expert, the key to staying on point is to listen carefully to the retaining attorney’s questions on direct and the opposing attorney’s questions on cross-examination. Be present.
Further, if the expert believes a key point of his or her testimony needs clarification or further explanation, the expert may send the retaining attorney a signal in the form of a buzzword. Attorney and expert listening to each other is the secret to making the expert’s appearance (in deposition or trial) helpful to the case.
Be prepared: Dean and Beaton agree that a litigation’s success depends on preparation. They have a formula, the “5 P's,” standing for “prior planning prevents poor performance.”
A good trial attorney will know all there is to know about the opposing expert, besides the work product relevant to the case. This includes all prior opinions, particularly ones that contradict the current opinion. An expert has to show the same level of preparedness. Know your record. If there are seemingly contradictory opinions, work with the attorney to explain, on direct, how the prior case differed from the current one, Dean says. Similarly, if the expert was excluded in another case, the attorney needs to deal with the exclusion, either in the form of a motion to exclude this fact or, in direct, by showing this fact is not relevant to the instant case. Dean says the attorney and expert need to have a shared understanding of the expert’s background and move in sync on countering attacks from the opposing expert.
Don’t lose your composure: One piece of advice Dean offers to attorneys and experts is never to exhibit aggression against the opposing side. Dean says an attorney doesn’t have to be snarky, or, worse, mean to show the opposing attorney’s case is weak or the opposing attorney or expert lack competence. A good attorney can expose flaws in the opponent through polite questions that focus on the record—never the person. Similarly, Dean says, he expects that the retained expert, even if asked the same question in multiple ways, makes every effort to remain polite and patient.