By Terry Silver
Special to the Legal
In my 25 years' experience as an expert witness, I have come to recognize which skills serve me best in the courtroom. It has been an evolutionary process as I fine-tuned my own professional skills. I’d like to share what I believe are the most common characteristics found in successful expert witnesses.
First, and most obvious, the expert witness must be qualified in the area in which he or she is providing expert testimony. Yet how can the trier-of-fact know who is and who is not qualified? In the case of business valuation, the expert should possess those most recognized credentials, including ASA, CVA, CFA or ABV. If the expert witness you engage for a business valuation does not possess one of these credentials, then their valuation conclusion will likely be challenged.
Credentialing by respected valuation organizations signifies to both counsel and the court that the candidate has been rigorously trained, has passed a proctored exam and is “current” in his or her professional education. I have heard it said that “perception is oftentimes reality.” Well, being properly credentialed will no doubt assist in furthering a positive perception in the mind of the judge or jury.
In addition to the expert’s credentials, expert witnesses should be experienced – after all, an expert is one who has “done this before.” The voir dire process always proceeds more smoothly when the expert has appropriate credentials, experience and knowledge of the industry on which the expert report is based.
In prior postings, I discussed the importance of being prepared. I cannot emphasize this enough. During cross-examination, a good attorney will utilize whatever appropriate means are available to discredit the expert’s work product and resulting conclusions. To the extent the expert is prepared to address multi-levels and multi-layers of issues, they will successfully stand up to the cross-examination process. To the extent the expert witness does not prepare properly, the results are usually and predictably, negative. I must admit, for the record, that the most significant motivating factor for me in the litigation process is the fear of failure. This fear of failure (or desire for success) is my principal motivation for meticulously understanding the issues and preparing for the litigation.
I’ve also discussed in the past the importance of the team approach between the attorney and the expert. Working as a team requires constant communication and updates. I have found that this investment in the “details” early on an engagement will yield great results at the end of the engagement. To the extent the attorney and the expert are not “on the same page,” or are at odds with each other, the client will ultimately suffer.
My first experience as an expert witness was approximately 25 years ago. Following my testimony, I was called into judge’s chambers. This meeting resulted in one of the most significant learning experiences of my career. The judge kindly informed me that she thought I was a very well prepared and intelligent young man. Despite that, she indicated that no one in the courtroom understood my testimony! This realization led me to understand that the language we often speak in expert testimony is not the language judges or jurors easily comprehend.
This experience evolved into my understanding that the expert witness is as much an educator as they are an expert. For example, what is the benefit of a well-written and well-concluded expert report when the expert cannot adeptly and succinctly communicate in words their findings to the hearers of fact? The successful expert converts complicated concepts and volumes of data into useful information that the judge and/or jury can understand. To the extent the expert is unable to convert complicated concepts into understandable ones, their would-be quality work serves no significant benefit to the case, the attorney or, most importantly, the client. For this reason, my style as an expert witness has evolved over the years to be as much an educator as a presenter of an expert conclusion/opinion.
In this process, I remain mindful that the education process does not demean those being educated. My areas of expertise are financial. The language of finance is second nature to me, but that is not necessarily true for the listener. It would be a mistake for me, as the expert witness/communicator, to take for granted that the listeners are as comfortable as I am with the financial “lingo” and financial concepts.
To move to the intangible, the expert should be likeable, or at the very least not possessing a personality or manner the judge or jury will dislike. When the expert is competent, prepared and can successfully communicate their position, likeability is a significant bonus.
In summary, the attorney should seek diverse qualities in the expert they engage. The successful expert should be experienced and qualified by reference to his or her credentialing. Moreover, the expert must be likable and be a good communicator. Nothing is more compelling in court than an experienced, qualified, likable expert who is a great communicator.
Terry Silver is a Certified Public Accountant, Certified Valuation Analyst and Certified in Financial Forensics, for Citrin Cooperman, an accounting, tax and business consulting firm in Philadelphia, where he is a partner with more than 33 years of experience as an accountant and auditor. He focuses his practice on business valuation and financial forensic services, expert testimony and matrimonial actions. He can be reached at firstname.lastname@example.org or (215) 545-4800.