The expert witness is a key player in a legal or administrative action where technical evidence is central to the arguments being made. Typically an expert witness is a professional who gives that testimony to a court of law or a forum at the request of a party to the action.
In the context of the accountancy profession, the expert witness is most commonly a forensic accountant or a tax expert. The forum where the witness gives their expert opinion may be legal or quasi-legal, such as a law court, a tax appeal, an unfair dismissal action or a mediation.
I have authored grounding affidavits for court in white collar cases both civil and criminal, and I have acted as an expert witness in court, at tax appeals and other fora. In writing this article, I am drawing on over forty years of professional experience working at senior levels in the Revenue Commissioners and the Office of the Director of Corporate Enforcement (ODCE), now the Corporate Enforcement Agency (CEA).
Expert witnesses gain most of their training on the job
Many years’ post qualification experience in a particular technical or subject area is required by an expert witness, whose key attributes will include the following:
- They are able to ‘ask the question’ when examining evidence, using professional scepticism in a measured way.
- They are good lateral thinkers, able to argue both sides and think outside the box.
- They have excellent knowledge of the legal environment they are operating in, including the legal rules of evidence.
- They exhibit professionalism in all aspects of their work, both written and oral, in an unbiased way.
Experts gain most of their training on the job, from actually doing the work. They attend CPD courses and do further study in the area they wish to specialise in. They also undertake soft skills training in report writing and, in particular, verbal communication.
How they’re chosen
Generally, in a major legal case an expert witness will be approached by a party to an action or a ‘notice party’ to an action such as an insurance company.
They may be approached directly by a client or by the client’s own accountant or professional adviser. It is nearly always preferable to be approached by the client’s lawyers as that gives the expert witness’s reports legal privilege and limits their circulation.
Before accepting instructions or issuing a letter of engagement, the expert must ask themselves the following questions:
- Am I properly experienced and qualified to carry out this assignment?
- Do I have enough professional indemnity insurance?
- Do I have any conflicts of interest?
- Does the client understand the basis of my fees (which must be based on arm’s length commercial terms)?
- Am I a professional in good standing, with the correct qualifications?
- Do the parties understand my role and what is required of me?
- Have I a good understanding of the issues, and where the evidence is, or can be obtained, that I will need to compile my report?
- Will I need to do a scoping engagement first, to determine what evidence there is, and will I be able to produce a report I can defend in a forum such as a court or appeal hearing?
Scenarios
There is a wide range of situations in which accountants can find themselves acting as expert witnesses. You may be approached by a state regulator to compile a report on financial statement fraud to be used as evidence in court in a director’s disqualification case. You may be approached by a business or its insurance company in a dispute over the exact loss of profits where fire damage has led to business closure.
Other possible situations include being asked by a lawyer to compile a loss of earnings report in an unfair dismissal case or a dispute between an insurance company and an individual unable to work because of an accident or injury. Or you could be approached by a party in a matrimonial dispute to investigate the financial means of the other party and whether there may be assets abroad or concealed.
You are there only to assist the court, not to advocate
What do you do in court?
Initially you will state your qualifications and experience. You may be examined by your own lawyers, and subsequently cross-examined by the lawyers for the other side.
It is critical to keep in mind that you are there only to assist the court, and not to advocate one way or the other.
In order for you to perform well in court, it is important that your lawyers understand your report, which is being admitted as evidence. If they don’t, you may encounter difficulties in properly communicating your findings and opinions to the court. Although you will have presented a written report, your role will be to verbally communicate accounting or other financial information, in a manner understandable by non-accountants, and to state your opinion in a professional and unbiased manner.
In court, you must be confident, have a mastery of the facts and be able to explain technical concepts to the court such as, say, the meaning of ‘work in progress’ and how accountants treat it.
In the witness box
Your courtroom performance requires the following from you:
- Do not venture from or embellish the facts.
- Do not advocate one way or the other.
- Ensure you explain that you have looked at the evidence from the perspective of both your client and the other side.
- Advise the court if an area is outside your expertise.
- Speak confidently, slowly and clearly.
- Always address the judge with your replies.
- Ask for clarification of ambiguous or leading questions.
- Do not attempt to try to answer a question you are unsure of.
- Ask the judge for assistance if you need clarification of what you are being asked.
It is a critical requirement that an expert witness be unbiased, in terms of the evidence examined and reported on. You need to have considered all aspects of that evidence both in favour of and against your client. Any bias shown by you will be exploited by the lawyers acting for the other side and could damage your professional reputation.
For accountants with in-depth and specialist expertise, taking on an expert witness role is a very rewarding experience.
