Tales From the Trenches Episode No. 3—Quit Staring at Me
Some years ago, I was very active in valuing medical practices, so much so that I caught the attention of the Department of Justice, which had sued a hospital chain in Florida for Medicare fraud. The hospital chain had acquired more than about 100 medical practices from small practices in the area near its hospitals. Most were individual practitioners. The acquisitions were in the 1990s as I recall. My engagement for my client, the DOJ, was to prove that the hospital chain had overpaid for the practices, i.e., it had paid more than fair market value for the practices.
I had provided a report for each of the practices with detailed supportable calculations showing that the hospital had indeed paid higher than fair market value for all of the practices. The hospital chain engaged a CPA/ABV in Florida to provide rebuttal reports and testimony to challenge my reports. The DOJ scheduled a deposition of the opposing expert, which was held in the offices of the opposing expert’s firm in Miami. It was a video deposition.
The DOJ asked me to attend the deposition, which I did. By this time, I was a very seasoned forensic witness and had testified many times. I had learned that, when you are attending the deposition of another witness, it was very important not to gesture, exclaim, or otherwise express yourself during the deposition no matter what the other witness was saying even if he or she was saying things that were false or derogatory to you or anything that might be irritating to you. In other words, I needed to be as nonexpressive as I could be.
Taking that demeanor as an observer at a deposition had not been a problem for me because it was expected. But, in this particular case, it turned out to have an unexpected consequence. The opposing witness, while an experienced valuator, was a very inexperienced testifier. The deposition began, and I focused on the other witness to make sure I was paying attention to what he was saying. I was not taking any notes or writing anything because those would be discoverable by the other side.
About a half hour into the deposition the other witness broke off an answer to one of the questions in midsentence and began screaming at me. He looked right at me and said, “Why do you keep staring at me? Are you trying to intimidate me?” He went on screaming and yelling at me and finally calmed down. I did not respond at all to his outburst. Opposing counsel called for a recess in the deposition. When they came back in about 10 minutes, they indicated that they wanted to suspend the deposition, which we did.
About three days later, the opposing counsel called the DOJ attorneys and asked to settle, which they did. At the time of this settlement, it was the largest amount of fines that the DOJ had ever collected in such a case. There is no doubt that the miserable performance of the expert in this case hastened if not outright caused the hospital to settle.
Takeaways: It is important to maintain control of your temperament when testifying in a case. Having testified hundreds of times, it should not be surprising that I have not always been able to comply with this rule. One case in particular in Florida many years ago comes to mind. Even though I was a very experienced testifier at the time of this case, I let the attorney get to me on cross-examination. And I even knew he had a reputation of doing that. My performance in that case still bothers me to this day. But, in the vast majority of cases, I have maintained my temperament whether at trial or in a deposition.
The case here is a good example of why keeping your cool is important whether in a deposition or at trial. The expert in this case looked even more foolish because it was a video deposition. While I believe that the DOJ, with the help of my testimony, would have prevailed in this case had it gone to trial, there is no doubt that the expert’s display during the deposition caused the hospital to fold and settle. No matter how experienced and professional you are in determining the value of a business, for example, your work will not matter if you fail at testifying.