There's a funny scene in the movieMy Cousin Vinny. Joe Pesci — in his best New York accent — calls his youthful clients "Utes" causing the judge to ask: "What's a Ute?" Financial expert witnesses sometimes have similar problems on the stand.
For example, after a twenty minute dissertation regarding the analyses that led to his value conclusion, the judge broke in with a question of her own: "What's a cap rate?" The expert felt he had done a masterful job in explaining not only the valuation conclusion but the pieces that made up the process. Apparently not. After answering the judge's fundamental question, the expert had to recap his previous testimony to make sure the judge fully understood his technique.
Expert Witness Obstacles
Because financial experts and most attorneys are well versed in financial matters, they may not be able to anticipate when there will be a comprehension problem for the judge or jury. But if judges or jurors aren't familiar with the subject matter, they may not be able to fully comprehend the testimony provided by the financial expert.
Surveys have indicated that most financial expert testimony is considered droll and uninteresting. So the financial expert is starting out with an uphill climb to get his or her point across to the trier of fact. The attorney needs to work with the financial expert to ensure the message isn't lost among the confusing financial jargon and theory.
5 Steps to More Effective Communications
Here are five steps an attorney can take to help insure the success of his or her financial expert:
Minimize jargon. To the extent possible, an expert should either eliminate or explain technical terms in the report and the testimony. The attorney can help by reviewing the expert's report in advance and pointing out where technical issues should be clarified and simplified. It might also help to have an associate or even an administrative employee of the law firm review the report and highlight areas that a layperson might not easily understand.
Don't speak in acronyms. Attorneys who are familiar with financial terms can often lapse into an acronym-filled conversation that can easily go over the head of a judge or juror. Acronyms should be avoided in the written report and during oral testimony. In fact, just defining the acronym once might not be enough if the term is to be repeated throughout the testimony. A jury might not grasp the acronym on the first time around. Thus, even though it's somewhat laborious, it might be wise to use the longer form of the acronym as much as possible. The attorney might also need to interrupt the expert if the expert is using the acronym too often and say something to the effect of, "Could you please explain again to the jury what that acronym means?"
Keep it simple. Whether presenting an opinion of damages, value or some other financial matter, the concepts can be daunting to a judge or juror. To help the testimony to be understood, complex issues should be presented in the plainest manner possible so that the average person with no training in finance can understand them. An attorney can often pick up on whether the judge or jury are "getting it" during testimony. If they're not, the attorney should add clarifying questions to the testimony to shore up the understanding of the trier of fact.
Use pictures. Work with the expert so that he or she utilizes graphs, charts and even simple pictures that represent the concepts that the expert is trying to explain. To be most effective, each visual exhibit should present a single idea or conclusion in a clear, concise manner. And the expert should provide verbal testimony to help the judge or jury understand what each exhibit means. In a federal trial, charts, graphs and PowerPoint presentations may have to be submitted as part of the report in order to be used in testimony. The attorney should help the expert as to the local rules in a state case in order to use these aids.
Be interesting. The attorney and expert don't have to carry on a comedy routine, but there are ways to keep the testimony interesting for a judge or jury. For example, the attorney might ask the expert to explain a concept by using a flip chart. Or the attorney might have the expert leave the witness chair (with the permission of the judge, of course) to explain certain charts or graphs.
Working Together to Bring Clarity
The most effective expert witnesses possess strong written and oral communication skills — and they're able to make what they do appear simple and straightforward, even though it's complex and filled with subtle nuances. Attorneys sometimes avoid making recommendations to expert communications in order to preserve the experts' perceived objectivity. However, it's perfectly acceptable to ask for greater clarity when explaining complex financial matters in written reports and oral testimony. By working as a team, the attorney and expert can help the trier of fact better understand how the expert arrived at and supported his or her conclusion.
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