The CPA Journal

By Marvin G. Pickholz

The courtroom can be a strange, hostile, and uncontrollable environment. The best preparation is to understand and relate on a personal level to the perspective of the trier of fact (be it a judge, juror, or arbitrator).

The outcome of a proceeding depends upon the perception of the client’s demeanor, dress, and choice of language as much professional performance. If an accountant is called to testify, this may be particularly necessary for a successful defense. After testimony, much of what went before in the proceeding becomes irrelevant. The entire case can come down to the perception of that report. The following suggestions are useful for anyone involved in litigation as a plaintiff, defendant, or witness.

Forget the old rules. This is a transitional period of history, and traditions are changing. Being an honest professional is not enough. Nor is it sufficient to work for a firm with a carefully built image and reputation for integrity, or to believe that a client was honest. Accountants are now viewed as willing to distort GAAP and ignore GAAS in order to help clients report nonexistent or inflated profits. Testimony about having followed GAAS and GAAP will induce incredulity.

It is futile to argue that adverse verdicts will destroy a firm and injure innocent people. Triers of fact feel they will be no worse off personally if they find for the plaintiff, and emotionally it is easier for them to find for an injured plaintiff than to side with the defendant. Surveys conducted by specialty researchers hired by corporations and accounting firms often produce positive responses from the client users of that entity’s services. Yet those interviewed, when asked their views generally of a profession or industry, frequently give seemingly contradictory answers. For example, almost 90% of one survey’s respondents stated they never had a bad experience with an insurance company, although they had a generally negative view of how insurance companies conduct themselves.

In addition, legal concepts such as the presumption of innocence are now often honored only in theory, not in deed. More than 50% of one survey’s respondents are “very concerned” about ethics of businesspersons and professionals. Roughly the same percentage responded that such a defendant needs to prove its innocence.

Speak their language. Because triers of fact are increasingly multigenerational, plaintiffs, defendants, and witnesses need to understand each age group’s thought processes, attitudes, information needs, and attention spans, and be prepared to address them specifically.

Triers of fact quickly lose patience with technical jargon. Moreover, in the courtroom, “terms of art” are likely to come across as intended to impress or obfuscate rather than engender rapport. In the presence of a skillful cross-examiner jargon can be made to appear pompous. Plain English examples and comparisons that convey a high level of experience without either oversimplifying or overstating are both appropriate and likely to be well received.

Television and, more recently, computers have changed forever how we communicate and how triers of fact perceive the world. As a result, presentations in the courtroom and other legal settings should use appropriate visual materials and also bear in mind today’s shortened attention span. Appropriate visuals should supplement rather than repeat verbal remarks, because listeners tend to read ahead and once finished may “tune out” what they hear. Bullet points are effective because they give the trier of fact a roadmap without giving away everything that will be said. Bullet points also give the plaintiff, defendant, or witness a memory aid that is not overly scripted.

Appearances and body language. Color is a critical factor for charts, graphs, slides, and dress for legal proceedings because it affects the audience‘s perception and frequently predisposes viewers to a particular reaction. For a basic slide of bullet points, yellow or another bright color on black creates the clearest visuals. Regarding dress, people form first impressions and judge each other based on appearance. A balance should be struck between being completely professional and being an individual.

Conveying self-assurance in a legal proceeding requires standing or sitting erect and, when moving, appearing as an open, credible individual sharing knowledge. Taking refuge behind furniture is never seen as a sign of credibility or innocence.

Empathy and alertness. Although defendants and plaintiffs are often advised not to be emotional, such an appearance runs the risk of being misunderstood. They are better advised to humanize themselves by conveying how the proceedings are affecting them. Because there are no “professional” jurors—they are people summoned to perform a responsibility for which they generally feel ill-prepared—juries will empathize with people who are undergoing the same experience.

Defendants, plaintiffs, and witnesses should answer questions succinctly, seeking clarification about questions when they do not understand. More information will be requested if it is needed or wanted. A useful approach to preparing for and presenting testimony is to put oneself in the place of the triers of fact and anticipate their reaction.

Marvin G. Pickholz, a partner of Hoffman Pollok & Lickholz LLP, in New York City, is a former assistant director of the SEC Division of Enforcement.