January 2002

Expert Rules: 100 (and More) Points You Need To Know About Expert Witnesses, 2nd edition

By David M. Malone and Paul J. Zwier

National Institute of Trial Advocacy; $16.95; 156pp including appendices; ISBN: 1-55681-721-5

Reviewed by Vincent J. Love

This pocket-sized edition is written primarily to assist lawyers in selecting, preparing, and examining expert witnesses. Like its big brother (reviewed in the April 2000 CPA Journal), this condensed version will help CPA experts hone their reporting and communication skills. It will also help the expert avoid the pitfalls of Daubert and Kumho Tire, the two court decisions that established the criteria that judges use to preclude unreliable and incompetent expert testimony. The book is written in a brief comment-and-explanation style that is concise, hard-hitting, and powerful. Its pocketbook size is quite convenient: About the size of a postcard, it fits easily into a pocket, attaché case, or purse, for quick reading and reference. The subject matter is divided into 12 categories and the appendices include the relevant portions of the Federal Rules of Evidence and Civil Procedure, both as amended to December 1, 2000. The book is crammed with good advice for the attorney and the expert witness. Consider the following excerpts:

• "Attorneys cannot select the information to funnel to the expert, because they are not competent to determine whether particular material should be relied upon or rejected."
• "Do not hide facts from the expert."
• "Attorneys should remember that while they may help the expert decide how to express an opinion, it is the expert's responsibility to decide what that opinion is."
• "The expert's report shall contain a complete statement of opinions, bases, information considered, exhibits to be used as summaries or support, qualifications, publications within the past 10 years, compensation, and trial or deposition testimony within the past four years."
• "Obtain [knowledge about the opposing expert] in an organized way by taking the time to ask your expert how the opposing expert would approach this assignment, what biases and prejudices would be active, what sources would be preferred, and so forth, always looking for differences between your testifying expert's approach and that of the opposing expert."

Those gems are just in the first 29 pages of this treasure trove of advice on how to work with experts. For the expert, it is a primer in how to write a report that will be acceptable in a federal court and how to prepare for testimony.

In the section on deposing expert witnesses, the authors give the reader 10 questions that should be asked of every expert. The questions are simple and apply to almost any situation: "How did you do that?" "Why did you do that?" Answering these questions will put the CPA expert in a better position to clarify, support, and articulate opinions in a deposition or at trial. This section of the book also addresses issues such as where the expert obtained the documents that were used in forming opinions and whether access to documents was controlled or denied. It also discusses Daubert issues and the advice given to lawyers to "be the expert's most interested, but ignorant, student."

The book makes useful points on admissibility of expert testimony, direct and cross-examination of the expert at trial, and use of visual aids, charts and graphics "to provide the jury and judge with a picture story of the expert witness's testimony." The authors also touch on the impact of the baseline selection on the visual effect of graphs. Other suggestions are to use at least one of the opposing experts' graphics against their own position, and not to allow opposing experts to use visuals during cross-examination.

The book's last section deals with expert witness depositions, specifically the criteria for the acceptance and rejection of expert testimony. Included is an article written in the same direct style as the book, "The Daubert Deposition Dance: Retracing the Intricacies of the Expert's Steps," which examines specific questions an attorney can ask in deposition to explore the expert's adherence to the Daubert and Kumho Tire criteria. The authors pose pointed questions that probe the underpinning of the expert's opinions. CPA experts must consider such questions when developing their opinions.

Although written for lawyers, the book gives potential experts a grounding in the basics of the federal law relating to expert testimony and the reasons behind attorneys' witness strategies. The full-time litigation services provider should read this book, as should anyone not familiar with litigation who has been asked to give expert testimony in a legal proceeding.

The quantity and conciseness of excellent advice given, along with the book's portability and its hard-hitting, easy-to-read style, make it a worthwhile addition to a professional's library.

Vincent J. Love, CPA, is a member of the NYSSCPA Board of Directors.

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