What Is an Expert Witness? Possesses expertise and specialized - PowerPoint PPT Presentation

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, CPA  ABV, CBA, M.B.A. Managing Partner DARTMOUT TMOUTH PARTN TNER ERS S LIMIT ITED ED 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Types of Expert Witnesses Include • Scientists • Forensic accountants • Engineers • Certified Fraud Examiners • Medical professionals • Law enforcement • Academics • Government agents • Financial professionals • Security professionals • Business valuators • Detectives and private • Chartered accountants investigators DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Retention of Expert Witnesses • One party to litigation • Jointly by both parties • Court-appointed expert DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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. DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Engagement Letters — Expert Mandate • Phase One — Preparation of written expert opinion • Phase Two — Pretrial assistance • Phase Three — Attendance at trial DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase One — Evidence Gathering • Be familiar with procedural rules in your jurisdiction • Out-of-court examinations on discovery or depositions: • Fact witnesses • Expert witnesses DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase One — Evidence Gathering • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase One — Evidence Gathering • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase One — Report Writing 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase One — Report Writing • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Two — Pretrial Assistance • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Two — Pretrial Assistance • 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) DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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) DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three — Attendance at Trial • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three — Attendance at Trial • Direct examination • Cross-examination • Redirect and re-cross DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three — Attendance at Trial • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three — Attendance at Trial • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three — Attendance at Trial • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three — Attendance at Trial • 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) DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED

Phase Three — Attendance at Trial • 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 DARTMOU MOUTH H PARTNERS RS LIM IMIT ITED