How to ensure you choose the right expert witness to improve your legal case Featured

8:01pm EDT July 31, 2011
How to ensure you choose the right expert witness to improve your legal case

Expert witnesses are frequently used by attorneys in the courtroom.  While many qualified experts exist, the “right” expert can greatly assist counsel and the litigation with his testimony.

“An expert witness can offer testimony about a scientific, technical, or professional issue in a court case,” says John Alfonsi, CPA, ABV, CFF, CFE, CVA, managing director of Cendrowski Corporate Advisors LLC. “Finding the ‘right’ expert is often a difficult task, but our experience demonstrates that attorneys generally look for several attributes when selecting an expert witness.”

Smart Business spoke with Alfonsi about what attributes attorneys generally look for in an expert witness.

What are some key attributes that an expert witness should possess?

In our experience, attorneys generally seek an expert witness (aka ‘expert’) who possesses at least four attributes: 1) relevant professional experience; 2) a history of testimony in which that person has represented both plaintiffs and defendants; 3) active involvement in his or her field of expertise; and 4) credentials.

Why are a track record of professional experience and a history of testimony for both plaintiffs and defendants essential qualities of an expert witness?

Opposing counsel may try to discredit an expert witness by demonstrating a lack of relevant business and/or courtroom experience. Though a potential expert may have years of experience, this does not necessarily mean he has a high level of expertise in the specific area of the case, or that his experience demonstrates the requisite unbiased nature that an expert must possess.

For example, some experts have only provided their services on behalf of either the defendant or plaintiff. Such a track record might be used by opposing counsel to infer a bias on the part of the expert, even if the bias does not exist; the appearance of bias in and of itself may undermine the expert’s testimony.

Why is active involvement an essential quality of an expert witness?

Active involvement often manifests itself in an expert’s writing and speech; both are key elements of his testimony. Experts who contribute to their field generally pride themselves on having a thorough understanding of the subject matter. They may be most up to date on recent rulings and opinions regarding relevant analytical techniques, and will generally ensure their testimony complies with these items.

Active involvement may also manifest itself on the stand in the expert’s ability to convey findings to nontechnicians, such as a judge or jury members. Experts primarily work with individuals who readily understand the technical terms and analytical methods of the field.  This peer group may be quite different from a judge or jury pool.

Involved experts will recognize this difference and have a profound understanding of their area of expertise, permitting them to successfully articulate their findings.

Do attorneys generally look for specific credentials in selecting an expert witness?

Attorneys generally engage experts who hold credentials in their field requiring the expert to pass rigorous tests, participate in continuing education programs, and/or possess significant, related experience.  In some instances, multiple credentials adhering to such criteria might exist within a given field.

For instance, business valuation credentials fitting the previously mentioned criteria include Accredited in Business Valuation (ABV), Certified Valuation Analyst (CVA), Certified Business Appraiser (CBA), and Accredited Senior Appraiser (ASA). No one credential is generally better than the other, but credentials generally emphasize the expert’s commitment to his profession and understanding of the technical issues.

Is analytical ability the most important attribute of an expert?

It is a key attribute, but sometimes not the most important. Though an expert may have strong analytical abilities, it is important that he be able to articulate his findings in a clear and concise manner, both on the stand and in written testimony.

In a recent U.S. Tax Court case, Estate of Gallagher v. Commissioner, the presiding judge faulted the taxpayer’s expert witness numerous times for failing to adequately explain his analytical methods and resultant conclusions included in his business valuation. Thus, in spite of the expert’s analytical methods, the court found his arguments less persuasive than those of the opposing IRS expert.

To specifically address this issue, some experts purposefully make liberal use of visual tools, including graphs and flowcharts, in reports and include detailed explanations to ensure findings are well articulated and written at a level that non-business professionals can fully comprehend.  These experts might also assume a reader has little-to-no prior knowledge of the technical aspects of the case, or of the analytical methods employed.

This strategy helps ensure a reader or listener will not be confused by necessary technical jargon or methods that might otherwise be nonintuitive to a layperson.

John T. Alfonsi, CPA, ABV, CFF, CFE, CVA, is a managing director of Cendrowski Corporate Advisors LLC. Reach him at (866) 717-1607 or jta@cendsel.com.