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Cross-Examining a Financial Expert – Part I

Posted in Financial Advisory, on Nov 2014, By: Mark S. Gottlieb

Cross ExamineWe’ve seen it in the movies. A cross-examination where an attorney seeks to identify weaknesses in an opposing side’s conclusions by questioning a witness. Often an entire case can hinge on a cross-examination. As opposed to direct examination, where the exchange between lawyer and witness is warm and fuzzy, cross-examination is often hostile.

In financial litigation, expert witnesses are often certified forensic accountants. If the opposing side is using a forensic accounting expert as a witness, it is important to retain one as well. In their role as a litigation support analyst, the forensic accountant should be given all of the opposing side’s reports. Comparing these reports with their own, they can find any discrepancies and differences and then use these to begin building a cross-examination strategy. There are three steps to follow for a sound strategy.

  1. Reject or question expert’s opinion.

Ultimately, the goal of a cross-examination is to call into question the credibility of the expert’s opinion or findings. This is where one’s own forensic accounting expert will use their knowledge of the complex terminology and methods to point out weaknesses in the opposing expert’s work and conclusions.

One method of discrediting an opinion is with a Daubert Challenge. This is a challenge which examines five different aspects of an expert’s methods to verify their authority. They are:

  • Whether the theory or technique used can be and has been tested;
  • Whether the method has been subject to peer review and publication;
  • Its potential or known error rate;
  • The existence of standards controlling its operation; and
  • Whether it has acceptance within the relevant professional community.

Besides a Daubert Challenge, one can also analyze other parts of the opinion, such as the quality of the work, or the assumptions girding each calculation. Similarly, if there is simply bad mathematical computations within the work, this would obviously negate the expert’s findings.

  1. Interrogate the expert’s proficiency and independence.

The next step an attorney should be to focus on the opposing expert. Does the specialist hold the expertise they claim? What are their accreditations and degrees? How many years of experience do they have? If they have served as testifying experts before, what happened in those cases? All of these types of questions build a profile of the expert which you can then use to question the validity of their opinion and calculation.

Another aspect relating to the expert themselves is their independence. Does the expert hold an interest in the company they are representing? Any possible conflicts of interest that question the expert’s independence and objectivity should be questioned and brought out in court.

  1. Support your case with opposing testimony.

The final step is to use the evidence you have found from the previous two steps to bolster your own case. Often one can focus solely on disproving an expert’s opinion in a cross-examination and not use weaknesses to build your own conclusions. Working closely with a forensic accounting expert to find where the opposing side’s argument can be used against them will be important.

Cross-examination of an opposing forensic accountant can make or break a case. If one ends the cross-examination with the expert’s opinion seeming more valid, or their method more sound, or their qualifications impeccable, your own case is greatly damaged. However, if one consults with a forensic accountant, thoroughly goes through the opposing party’s conclusions, and creates an in-depth and sound plan of interrogation, a cross-examination can be the winning factor.

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