Want to be an expert witness?

Here’s brutal honesty from CFEs who’ve spent decades as expert witnesses. Prerequisites: thick skin, penchant for over-preparedness and meticulousness, ability to think quickly, poise and a supply of heavy-duty deodorant.

Tiffany Couch, CFE, was nervous but prepared. As a young woman, barely over 30, she was ready to be an expert witness in a big case, but she had only been in business for a few years. The expert witness on the other side had 30 years of experience.

“I sat in my seat, hands folded in my lap, and was able to testify confidently and without hesitation,” Couch says. “I had done all the work or closely supervised and checked it all. The other side tried to say I wasn’t qualified as an expert, but the judge shot it down. The expert witness on the other side, with all his experience, was terrible. He hadn’t done any work himself. He had someone else do it. Every question he answered, he had to refer to a document in a file.

“I was on the stand a couple of days and stayed with the trial team the entirety of the nine-day trial. We won many of the points being litigated,” she says.

“I’ve come to realize that the most difficult times testifying rarely has anything to do with me,” says Couch, an ACFE Regent Emeritus. “It could be a lawyer not prepared. It could be a lawyer whose only option is to discredit you in any way because you have good points. It could be your client has bad facts. Being prepared and managing client expectations is crucial — no matter the outcome.”

A new professional path

Expert witnessing could be a new career move for you. Attorneys often call upon CFEs, accountants and auditors to provide testimony in criminal and civil prosecutions, and use their services to support investigations of financial frauds, embezzlements, misapplication of funds, arson for profit, bankruptcy fraud, improper accounting practices and tax evasion. CFEs might also be used as defense witnesses or to support defendants’ counsel on matters that involve accounting or audit issues.

If the prosecution calls a CFE during a trial, they might testify to their findings. And if the defense calls them, they might testify about opinions expressed by the prosecutions’ expert — to create doubt in the jury’s mind about the credibility or weight to be given to that expert.

Alternatively, a CFE might be called upon to give a different opinion from that reached by an equally credible expert on the other side. This might be because of different interpretations of the facts of the case. Sometimes, the case — given equally plausible alternatives — might be decided on whichever side had the most credible expert witness.

Fraud Magazine recently interviewed ACFE faculty members about their expert-witnessing work. They gave practical advice on how they started, qualifying as expert witnesses, preparation for assignments and much more.

[See “Counsel on Elements of Expert Witnessing” at the end of this article.]

How they started as expert witnesses

These CFEs began their expert witness ventures in disparate ways. Jeff Matthews, CFE, CPA, partner, Forensic and Litigation Services, at Weaver and Tidwell, L.L.P., and adjunct accounting professor at the University of Texas at Arlington, says the Louisiana Legislative’s Auditor’s Office recruited him while he was still in college. “They approached the head of the accounting department, and were looking for ‘an accountant that didn’t fit in.’ He thought of me immediately. I do not ever remember feeling better about being a misfit!” Matthews says.

Janet McHard, CFE, CPA, CFF, president of McHard Accounting Consulting, said when she was in a litigation support division at a regional accounting firm in 2002 when “the partners … began giving me some of the less complex cases so that I could develop my expert witness skills and experience.”

Walter W. Manning, CFE, president of Techno-Crime Institute, says he received a significant amount of training and experience by testifying in criminal cases during his 20 years in law enforcement. “This helped a lot when I went into private practice and founded my digital forensics firm,” he says. “Working on a variety of civil cases has given me many opportunities to testify as an expert witness."

Regent Emeritus Ralph Q. Summerford, CFE, CPA/ABV, president of Forensic Strategic Solutions Inc., says CPAs are often called upon as experts in economic damage disputes, whether in breach of contract or lost profits. “That work naturally led me to becoming an expert witness in fraud examinations after I became a CFE in 1992,” he says. “It wasn’t until the late 1990s that courts began to accept the professional designation of the CFE and to allow CFEs to testify as experts in fraud matters.”

Rebecca Busch, CFE, R.N., CEO and president of Medical Business Associates Inc., says, in 2001 “an attorney needed help in understanding healthcare bills and asked me if I could explain it to a judge on a lien matter. I said yes, of course, and that was the start.”

Qualifying as an expert witness

“Most people who qualify as an expert witness have either advanced education or an extensive work record in a particular area,” says Bret Hood, CFE, director of 21^st Century Learnings & Consulting.

“While there are many people who can qualify, what can make you stand out is doing additional things such as pursuing advanced education or training, identifying certain niches that are underserved, and writing relevant and timely articles for journals or trade magazines,” he says.

“No matter which path you choose, you should always remember to stay as current as possible either through training, research or experience. What gets you qualified in 2019 may not keep you qualified in 2020,” Hood says. “As an expert witness, the presiding judge has to conclude that your testimony is based on current and accepted scientific methods or is based on a reliable foundation and is also relevant to the issue at hand. The court and opposing counsel can also ask you to explain the methods you used to calculate or measure your findings. An expert witness needs to be able to explain not only how findings were determined but also why the methods used were sound and generally accepted by others in the field.”

Summerford says that credentials and experience each play a key role. “You have heard the term, ‘résumé building,’ Summerford says. “Everything in your career should be considered along with community service.”

Matthews counsels would-be expert witnesses to stick to what you know. “Do not accept assignments in which your expertise or qualifications can be questioned,” he says. “You will receive more than enough questions on the facts involved in the dispute, and you don’t want to be forced into spending hours on questions that could have been avoided.”

State of Louisiana Prosecutor Hugo A. Holland, Jr., J.D., CFE, concurs. For more than 30 years he selected expert witnesses for trial. “Don’t fudge on your CV, and don’t ‘fluff’ it either,” he says. “If you are the member of some group that sounds impressive but the only qualification for becoming a ‘fellow’ of the group is to send a check, a lawyer will find out about it and make you look like an idiot on the stand. Also, that lawyer is going to run your name through Westlaw, and if you have ever been offered but not accepted as an expert, he’ll know that, too.”

Manning says you can create an “expert credentials” document. “It should include a description of your employment history and education, as well as the details regarding any previous experiences as a qualified expert,” he says. “Include the details for all cases where you have served as an expert, listing the case number, court and dates. The document should also contain any books or articles written that would show you to be an expert, along with presentations or training you have given. List all professional licenses and affiliations as well,” Manning says. Cynthia Hetherington, CFE, president of the Hetherington Group, advises that you should assure your LinkedIn account, resume and any other online CVs are accurate, depict you properly and sync with each other.

Preparation for an expert witness assignment

Matthews says he conducts research, and then more research. “Professional standards require that prior to undertaking any assignment you must expect you can complete it with professional competency,” he says. “Once you determine whether you possess the appropriate skills, time and resources to accept the engagement, you then have to determine whether the risks and rewards are acceptable. Every professional has different risk tolerance. There could be reputation risks for working with a particular entity or specific set of facts, as well as the financial risk of not being compensated. Consider all of this prior to your acceptance.”

McHard says that good testimony preparation is based on performing a quality fraud examination or forensic accounting. “Just before testimony I go back through workpapers and documents to refresh my memory of the work performed and sources of information that form the basis for my opinion,” she says.

Hetherington has a similar view. “Prepping for expert witness work is no different than conducting the investigation, except for your testimony,” she says. “Testimony is stating the facts of your findings discovered in your investigation. In this process, your language must be clear and relevant to the jury.”

Summerford takes an analytical approach. “The most important aspect of any assignment is to first understand the objective, determine the facts and allegations in the case, and then determine if there is sufficient basis in the case to meet the professional standards of the profession to be sworn in as an expert,” he says. “I always want to read the complaint and answers, or the indictment to make sure I thoroughly understand what is being asked of me.”

Couch also has a checklist. “Meet with the lawyer and sometimes with the prospective client,” she says. “Figure out the issues in the case and whether it will be a good fit for the firm. Obtain an engagement letter and retainer. Request documents and perform analysis. Inform the lawyer and the client of findings, do additional document requests.”

Manning is a details man. “From my law enforcement experience, I developed the habit of keeping very organized and detailed case files,” he says. “Most of my cases involved either providing an expert report or the potential for oral testimony, so my preparation really didn’t change from case to case.”

Busch spends hours identifying pertinent elements. “Identify the scope of work plus all relevant parties and the practice standards of those parties,” she says. “Identify the authoritative sources that those parties are subject to. Clearly identify the parties’ work flow and all relevant people, processes and technology that the parties use. Identify any relevant contractual or legal relevance if appropriate. Identify damages.

“Apply the relevant practice standards such as in a fraud examination applying the ACFE investigative model and code of conduct, an audit applying the Institute of Internal Audit standards and code of conduct and a healthcare compliance domain applying the same standards and code of conduct,” Busch says. “Experience has taught me to add — at no charge — a one-week pre-conference call with the prosecution to review the file.”

Because Holland is a prosecutor, he sits in a different seat. “From my end, I provide the expert with every scrap of information I have about the case,” he says. “I then call them and make sure they understand what the defense is and how they fit in.”

Best … and worst

These CFEs discussed the parts of the expert witnessing process they enjoyed (and didn’t).

“The mental challenge of a litigated environment is especially gratifying,” Summerford says. “Each attorney is an advocate for his or her client. … The expert witness, however, is not an advocate for either party, but an advocate for his or her opinion. The expert witness adds value to the litigation process in the ability to see the big picture. Then the expert must synthesize that picture and explain the complicated concepts in believable, understandable pictures and stories that a lay juror can understand. The ability to perform this function is wonderfully rewarding, both professionally and financially.

“The part I least enjoy,” Summerford says, “is the uncertainty of having to live with a court’s timelines and schedules, which always get changed. It’s very much a hurry-up-and wait process with tons of pressure. But once I get there, it is delightful to match wits with truly professional, competent attorneys.”

McHard says she enjoys the legal process. “It is fascinating. I also enjoy the challenge of knowing the documents well enough to find every reference easily,” she says. “I don’t enjoy waiting to testify, which seems to be a required part of every testimony event.”

Matthews says he loves “how each assignment is challenging and unique in their own way. The matter’s allegations may be similar, but the data involved and the passion of those pursuing the dispute are always different. Also, I love the intellect and brilliance of those that are most successful in our space.

“However, the stress can be relentless at times,” Matthews says. “It takes a lot of mental fortitude to navigate court-ordered deadlines while managing less-than perfect data to support with clients that have high expectations.”

Couch says the best part of being an expert witness is helping a lawyer identify claims they didn’t know they had. “The second-best part is helping a lawyer gain clarity and comfort around a financial-related argument so that they can be confident in the courtroom.” However, she says that litigation brings out the worst in people. “It makes me sad, especially when there are points where one would think some agreements could be had.”

Manning says that he’s enjoyed explaining technical aspects of a digital forensics investigation so that anyone reading the expert report or hearing testimony would understand.

“My least favorite experiences,” Manning says, “have been the situations where when qualifying as an expert, the opposing counsel wants me to describe in detail every law enforcement assignment and every digital forensics case that I had worked on. I realize that this can be necessary to qualify a witness as an expert, but that part of the process can be very time-consuming, tiring and tedious.”

Best advice for would-be expert witnesses

Exhaustive preparation and research are common denominators. “Double and triple check your data because a single mistake when testifying can destroy your credibility,” Hood says. “You must have a passion to want to become an expert witness. If you have that passion then you must study, study, and make it a lifelong process of being a student because you must always learn,” Summerford says. “Be over-prepared,” Manning says. “If your expert contribution is in writing, have your expert report reviewed by peers and colleagues if possible, to ensure that everything is clear and concise. If oral testimony is required, rehearse if you can with either attorneys or colleagues who have experience in this area.”

And shrinking violets need not apply. “Grow thick skin!” Matthews says. “Adverse parties often hire opposing experts to critique your work, your credentials and sometimes your character. There are also times in which today’s clients or colleagues — most often law firms — are tomorrow’s adversaries. You have to remind yourself ‘it’s just business’ and rarely, if ever, personal.”

Couch concurs. “If you take everything personally, if you can’t handle the scrutiny, someone questioning you in a firm or even yelling tone, or you aren’t someone who thinks well on their feet, you should seriously reconsider becoming an expert witness,” she says. “One of the most difficult parts of being an expert witness is the intense scrutiny you will face. … It’s ugly, it’s tough, it’s never fair, and even when you’re right, your client won’t always win.”

McHard has a practical suggestion. “Wear good deodorant,” she says. “I’m not kidding about this. Testifying is, at the same time, the most exhilarating and most terrifying thing you’ll ever do professionally.”

Hood passes on to prospective expert witnesses the last thing he says to witnesses he escorts to the stand at trial. “All you have to do is tell the truth.”

Dick Carozza, CFE, is editor-in-chief of Fraud Magazine. Contact him at dcarozza@ACFE.com.

Counsel on Elements of Expert Witnessing

Disclosure requirements

Hetherington: “You’re the expert, not the attorney. If you don’t feel qualified to speak on an issue or topic, don’t. They may see ‘CFE,’ and think you’re as good as any auditor or accountant, and that could be grossly inaccurate."

Summerford: “Courts have different rules, whether state or federal court. Some have very detailed requirements while others — mostly state courts — have very lax requirements. There is no one size fits all category of disclosure."

McHard: “Make sure you know at the beginning of the engagement which disclosures may be required. Always assume your full case file and workpapers will be disclosed. Don’t put snarky comments in your workpapers or emails!”

Preparing reports

Matthews: “Discuss with counsel whether a report is necessary. Never commit things to writing without express consent. Sometimes an oral report, or a few paragraphs or spreadsheets can suffice. When a full report is required, follow the requirements set forth by both the procedural rules and the standards set by the applicable regulatory and professional bodies such as the ACFE. Write in chocolate because you might end up having to eat your words meaning, never say anything you are not comfortable supporting."

Couch: “Write reports a 12th grader could understand because that’s the average education of a juror. Lawyers and judges are smart, but they are smart in the law. They don’t always understand the numbers. Write in a way that a layperson understands. You’re already the smartest person in the room; you don’t have to prove it by writing a report full of technical jargon. Also, understand that you won’t be in every room when your report is being considered. It should stand alone without you there.”

Discovery

Manning: “Understand how to deal with electronic and digital evidence and how to work with digital forensics experts. These topics are addressed in the ACFE’s course, ‘Obtaining, Managing and Searching Electronic Evidence.’ ”

Hood: “Disclose everything you have, including potential conflicts, to the attorney who hired you. At no point should you provide any reports, schedules or drafts to anyone other than the attorney who hired you.”

Direct examination

Holland: “Fifty percent of all communication is non-verbal, so get eye contact with jurors, and use simple language to explain difficult concepts. The best example on a case that everyone should be familiar with can be found on YouTube."

Busch: “Take interview and acting classes. Learn to listen. The key is to answer the question that’s asked. If you don’t know the answer, it’s okay to say, ‘I don’t recall,” or I don’t know.’ ”

Matthews: “This is ‘friendly fire’ while the judge and/or jury observes in trial. Relax. Listen to your client’s question carefully, and with all confidence, nail it. This is where your all of your hard work gets a voice. This is the opportunity where your observations on this matter, as well the expertise you developed through prior experiences, can educate the trier of fact and actually strengthen your opinion.”

Couch: “Offer to write your own direct. Not only will the lawyer love you for it, you’ll be totally prepared.”

Demeanor and appearance

Matthews: “Calm is your superpower. Do not take the bait and argue with an attorney. It’s like wrestling with a pig; you both get dirty and the pig likes it. Do not respond in anger or appear the least bit defensive. Remember, you are an advocate for your opinion, not the client’s position. Wear your Sunday best, always. You never know when an urgent, unplanned client meeting will occur, or you bump into someone of the utmost importance unexpectedly. That also goes for your online personality. Never post anything online you would not want a parent or child to see.”

Hood: “You’re trying to persuade the jury — not the judge, counsel or client. The best expert witnesses look at the attorneys as they ask the question and then turn their attention to the jury when answering. You want the jury feel like you are having a conversation with them."

Couch: “Never engage with a lawyer or judge if they get short or dismissive with you. If someone is being a jerk, or acting frustrated, let them. Need more time to answer a question? Ask the question to be repeated or refer to your file. Be succinct and simple in your answers.