Understanding the cross-examiner’s objectives can help an expert witness prepare to take the stand. It is not difficult to identify foundational principles that, if properly understood and applied, allow you to “survive” cross-examination. Here are seven tips for forensic and valuation services accountants who serve as expert witnesses.
Understand the expert’s role in the case. Juries
place a good deal of faith in expert witnesses, and even judges are
generally receptive to such testimony when the critical issues in a
case are beyond the scope of their experience and understanding. But
nobody wants another advocate. Making concessions where necessary
looks more impartial than vehemently resisting every inquiry. On the
other hand, people like educators/teachers. The appearance of an
impartial educator with a professional manner can be invaluable.
Prepare. Preparation is key to surviving even the
most carefully crafted cross-examination. The cross-examiner will
likely ask only questions to which he or she already knows the answer.
Anticipating questions ahead of time and thinking through the answers
goes a long way toward withstanding cross-examination.
Do not underestimate the cross-examiner. A skilled
trial lawyer’s review of an expert’s written work and prior testimony
is an essential part of his or her preparation. Electronic databanks
and public records requests make it easy to see what an expert has
said in the past. Assume that the cross-examiner has, at least on the
issues to be addressed at trial, developed an expertise equivalent to
yours and knowledge of the relevant facts superior to yours.
Control yourself. Take nothing personally.
Suggestions of incompetence or sloth may be designed to anger you or
to destroy your professional air. Remain courteous but firm.
Similarly, be prepared to testify about your hourly rate and the cost
of your work. Do not be embarrassed by, or defensive about, the level
of compensation, particularly if you have successfully imparted to the
jury on direct examination the full scope of your work and the time
required to conduct the expert analysis properly.
Do not try to “win” the case. A perfectly conceived
cross-examination may result in the expert answering “yes” 20 or 30
consecutive times and then leaving the witness stand. While certain
experts insist on occasionally adding a rejoinder—such as “Would you
like me to explain?”—such a comment is not likely to advance your
cause. The cross-examiner will decline and suggest that “your
attorney” will have the opportunity to question you again, if
appropriate, on redirect examination.
Understand the role of the redirect and closing
arguments. If the cross-examination goes poorly, a properly
prepared attorney may be able to repair most of the damage on
redirect. The redirect and a closing argument are available to triage
any injuries.
Choose your words wisely. Generally, you should not
volunteer information or stray from the specific subject presented. Do
not assist the questioner when he or she appears confused or
uneducated—such ignorance is often feigned. Generally avoid absolutes
(such as “always” and “never”) and do not be reluctant to say “I don’t
know,” “I don’t recall,” or, when appropriate, “I did not
analyze/investigate/explore/address that matter as it was outside the
scope of my assignment.”
Editor’s note: This checklist is adapted from an edited excerpt of materials from the “Surviving Cross-Examination” presentation at the 2013 AICPA Forensic & Valuation Services Conference. Also see the article “Seven Tips for Surviving Cross-Examination,” FVS News, August 6, 2014, available at tinyurl.com/k6v3lm3.
—By Gary L. Birnbaum (
gbirnbaum@dickinsonwright.com
), a senior litigator at Dickinson Wright PLLC in Phoenix, and
Vail Cloar (
vcloar@asu.edu
), a law clerk with the Arizona Supreme Court.
