By David M. Malone and Paul J. Zwier
Published by the National Institute for Trial Advocacy [315 pp. including appendices, $49.95 (ISBN 1-55681-564-6)]
Reviewed by Vincent J. Love, CPA, managing partner, Kramer & Love, New York City
Written primarily to assist lawyers in selecting, preparing, and examining expert witnesses, Effective Expert Testimony is also a treasure trove for the CPA expert, giving the insider’s perspective on how expert witnesses are selected and cross-examined. Because the CPA designation is a well-respected credential, many CPAs give expert advice and testimony—some as an adjunct to their regular practice and others as full-time practitioners. The book also gives potential experts a strong grounding in the basics of the federal law regarding expert testimony.
The authors’ flowing, jargon-free writing style makes the book easy to digest: “The trial attorney’s task is to retain something of the expert aura in the testimony and to ensure the expert communicates the meaning as well.” The book addresses the selection of the expert, working with the expert, preparing the expert to give testimony, cross-examining an expert, and examining the reliability of the testimony in light of the evolving law on the admissibility of expert testimony.
In Chapter 2, the authors explore the ways to find an expert. This information—the what, how, and where of finding and retaining financial experts—will also help a potential expert develop an effective marketing program. Chapter 3, caring for an expert, is interesting because it instructs attorneys on how to—and how not to—approach the expert’s retention and preparation. This chapter’s advice for attorneys is important for the expert trying to understand the work habits of litigators. The authors also explore situations for attorneys to avoid when interacting with experts; these coincide with the most common complaints from experts about working with counsel. Advice given to lawyers includes the following:
Chapter 4 presents timelines for both plaintiff and defense counsel when working with experts and discusses the advantage gained through also using the expert as a consultant on the case. This chapter will help the novice expert understand the flow of the case and the timing for report submission under the Federal Rules of Evidence, including procedural challenges to the admissibility of the expert’s report. In Chapter 5, the authors discuss issues regarding the discoverability of information given to, and conversations with, the expert. This information is important, because everything the expert relies on (and often simply obtains) is subject to discovery by opposing counsel.
One significant point the book makes is that the attorney should not unduly influence the expert’s report. (In New York, the CPA expert is required under the NYSSCPA Code of Professional Conduct to be objective in rendering a professional opinion and not to subordinate professional judgment to others.) The authors caution lawyers not to seek to subordinate their expert’s opinions to their will. For example: “Attorneys should not see this limited role [in reviewing and commenting on the expert’s written report] as presenting an opportunity to shape the substance of the expert’s testimony; that substance must continue to be the choice of the expert and to emanate from the expert.”
Chapters 6 through 9 and 11 through 13 address expert testimony and cross-examination. Reading these chapters will give the CPA expert a greater understanding and appreciation of the deposition process and different opposing counsel strategies. These chapters deliver a wealth of information concerning preparing to testify, the demeanor of the expert under direct examination, qualifying the expert, the expert’s advantages and vulnerabilities, anticipating and preparing for cross-examination, and lawyers’ examination styles. Chapter 8 contains an excellent discussion for the CPA and financial expert on the criteria for precluding an expert’s testimony under recent federal court decisions. Chapters 14 and 15 discuss in detail the seminal cases on preclusion of expert witness and how to structure expert opinions to avoid any pitfalls.
Chapter 10 covers the use of trial exhibits by experts. While written from a legal perspective, the information will help the expert prepare exhibits that can withstand the challenge of opposing counsel. However, the application of legal principles concerning the admissibility of demonstrative evidence is ultimately the responsibility of the attorney, who edits and critiques them to ensure they are fair and admissible.
The appendices contain selected portions of the Federal Rules of Evidence (as of December 1, 2000) as they relate to expert opinions, testimony and court appointment, and discovery. One appendix contains the U.S. Supreme Court decisions in the three seminal expert testimony cases, known colloquially as Daubert, Joiner, and Kumho Tire.
This book will be of significant assistance to the full-time litigation services provider and to those who are unfamiliar with litigation but have been asked to give expert testimony in a legal proceeding. Certainly, CPAs or financial experts with a practice in the field of litigation service should consider this book for their professional library.
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©2009 The New York State Society of CPAs. Legal Notices
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