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Be Careful when Testifying on Fraud

June 12, 2012

Accountants who provide expert testimony in fraud cases had better be sure they don’t say anything to conflict with the other expert witnesses called by the attorney with whom they are working.

That was the advice of John I. Salomon, CPA, a managing director at the Capstone Advisory Group, who addressed the New York State Society of CPAs’ Anti-Fraud Conference on Tuesday. He leads the national litigation and forensic practice at his firm.

He advised the CPAs in attendance to not only review their own expert reports, but also the reports of other experts on the case, even the opposing experts working for the other side.

“Make sure you don’t trip up another expert on the same side you’re working on,” he said. “He may be at your own firm or another firm. You finish up your own case and harm someone else.”

Salomon also cautioned accountants not to offer opinions outside their area of expertise, as tempting as that might be. “We’re CPAs and we want to help, but don’t opine outside your area of expertise,” he said.

He also recommended that expert witnesses make sure to appear credible and reasonable when giving depositions, even when they are asked hypothetical questions by the other side’s attorney that tend to stretch the imagination. Expert witnesses should not continue to insist that nothing would change their opinion. A better practice is to say something along the lines of, “This goes beyond my opinion in the case, but my answer would be, etc.”

Video depositions can be especially difficult, as the expert witness’s demeanor is all too apparent to the jurors, who are typically watching a close-up view. “Don’t engage with a questioner who becomes hostile with you,” Salomon advised. “They’ll ask if you are being evasive, and my answer will be, ‘No, I’m attempting to answer the question to the best of my abilities.’ The nicer you are, the better off you are.”

If an opposing attorney asks the witness if they are being paid for their testimony, they should respond, “No, I’m being paid for my time, but not my testimony.”

Sarcasm and humor do not come across well in a deposition. Salomon advised accountants to avoid them at all costs.

Anthony M. Rainone, a partner at the law firm Brach Eichler LLC, said it is important that the expert accounting witnesses he works with are comfortable with their testimony, and he is willing to revise his damage claims to make sure they are. “If I argue the consequential damages are one number and the expert is more comfortable with another number, why jeopardize your case if the expert witness will have trouble defending an inflated number with a straight face?” he said.

Rainone advised the audience to preserve copies of their draft reports and date them. He also said to be sure to mark emails “privileged and confidential in anticipation of litigation” in any written communications or else they won’t be considered privileged. He strongly advised accountants not to delete any emails related to a case, no matter how trivial they appear.

“Destruction is very bad,” he said. “The federal judges will kill you for it.”

Expert witnesses should be sure to make themselves available at reasonable hours to attorneys. “I’m not asking to call you at 10:00 at night, but at 6 or 7 at night, it’s helpful and I’ll be able to use you for the next job,” he said.

Rainone had to make an especially urgent, but useful call on the way to the conference. A fellow passenger on the subway approached him and indicated he was having a seizure. Even though he’s no ambulance chaser, Rainone called the ambulance to get the man some timely attention.

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