Expert Witness Selection Advice
Four steps for effectively selecting and managing forensic partners.
Thanks to one of today’s more popular television programs, many equate the term “forensic expert” with being a special investigator who works to find clues at the scene of the crime.
While accurate, that definition is also narrow. Forensic investigation—the science of gathering evidence to support the facts related to a criminal investigation—can be applied to any number of industry experts, including engineers, accountant, medical professionals, and many others.
Depending on the case in question, a forensic expert in a related area may be helpful in both assessing a claim as well as discovering evidence that may otherwise go unnoticed. Here are four specific steps to determine if a forensic expert is right for your file.
Step 1: Choose Wisely
Before settling on an expert to work your case, ask yourself the following questions.
First, ask if there is a need for prior experience in a specific industry. By having familiarity with the industry at hand, your expert can “speak the same language” as the opposing party, which can reduce the inefficiencies (and costs) often experienced with a learning curve.
Second, determine if the expert is qualified to deliver an opinion on the type of calculation deemed necessary. What degrees do they hold? What credentials do they possess? Are they current with continuing professional education requirements? These questions are especially important if there is a chance that the expert will need to testify and, hence, subjected to cross-examination or face experts with contrary findings.
Third, confirm that the expert brings a solid reputation for being competent and trustworthy. In order to make the correct choice, it is important to gain background information on the potential expert.
Fourth, determine if the expert can demonstrate to others that his findings are just and his reasoning is sound. Are conclusions supported by well-organized and logical work product? If given the opportunity, could your expert present his case and support the opinions in a convincing fashion?
Finally, establish that your expert is excited about being involved in an engagement or part of your team. Is he passionate about the work? The world is full of forensic experts; don’t choose one that seems to simply be going through the motions.
Regardless of the industry, specific communication skills are critical. Make sure the expert you select brings the following skills:
The ability to clearly explain and teach. People are more likely to believe those who they understand and distrust those who cannot clearly communicate their points of view. Selecting a forensic expert who presents much like a teacher can be extremely helpful in timely settlements of claims or the resolution of matters in dispute. The most effective experts evaluate the audience and determine the best way to relay opinions and conclusions in understandable terms. In short, the ability to communicate clearly a difficult or complex issue to the insurance professional or jury can mean the difference between resolving a claim or losing a case at trial.
The consistent use of open, two-way communication. Those who retain forensic experts are better served by hearing about potential issues or problems that the expert finds as early in the process as possible. A lack of disclosure of such findings may cause the resolution process to become unnecessarily overcomplicated as the case progresses.
The capacity to speak with facts, not emotion. Discussions surrounding disputes can become heated. The best experts can be a calming influence and a voice of reason during such times.
Is the expert truly independent as to the outcome of the decision? Certain professions demand that professionals adhere to strict guidelines regarding independence in attestation engagements. Independence includes two aspects: independence in fact and independence in appearance.
Independence in fact refers to the state of mind the professional is in at the time of the engagement. That is, does the professional have the ability to make an independent decision if placed in a compromising position by others? Independence in appearance means the expert must be perceived as being independent. If there is any question, the results of his findings may be called into question.
Does the expert have strong analytical skills? The most effective forensic experts must possess superior research and investigative skills in order to collect, analyze, and evaluate relevant data and effectively communicate their findings. Especially important for a forensic expert’s credibility is the time and willingness to review and analyze all available materials prior to reaching a final conclusion.
Does the expert have an inquisitive attitude? Forensic experts must consistently question results and examine issues thoroughly. Expert opinion should not be based on the desires of the individual who retained them but rather on the facts of the matter coupled with educational and working experience.
Step 2: Defining Goals and Objectives
Having an expert work without a defined scope can lead to a number of problems, including higher-than-necessary fees, incorrect findings, and information or missed engagement deadlines. Clients need to establish goals and deadlines at the beginning of an engagement, specifically detailing who is expected to perform tasks and by what date.
Remember, the overall strategy of the engagement could revolve around the timing of the expert’s investigation. Involving the expert early in the process and allowing sufficient time for his analysis to be conducted may prevent last-minute time crunches or, worse, the need for shortcuts that could compromise the outcome of the project. It is always a good idea to document critical points in writing to avoid potential misunderstandings between the client and the expert.
Additionally, it is best to involve your expert in the assignment as early as possible. Waiting forces the expert to play catch-up with knowledge of events and key pieces of information.
Step 3: Build a Relationship
Trust is an important and necessary element in every business relationship, including working effectively with a forensic expert. It’s important that you trust your expert to deliver on his defined responsibilities for the project within the expected timeframe. Some qualities that may assist in the development of trust include the following:
Thoroughness. Does the expert carefully review all data and information produced, as well as the conclusions reached? Can the expert actively discuss specifics of the matter in detail, or do they just know the key points?
Competence. Experts display competence by demonstrating a firm grasp of their areas of concentration; bringing knowledge of prior experiences to the assignment; and by showing the ability to recognize problems, determine possible solutions, and being able to decide among them.
Responsiveness. Is your expert responsive to your needs? Are they good listeners? Does the expert return calls or emails quickly, or do you have to track them down? In settlements of claims or other disputed matters, responsiveness plays an important role in the process. Positive outcomes can be delayed or lost entirely by using an expert who is not responsive.
Step 4: Develop Open Communication
It is essential for a forensic expert to possess good communication skills. At some point in the relationship, an expert will need to communicate properly his findings and opinions to one or more key audiences: the client, the insured, or even a judge and/or jury. Appropriate, two-way communication is a must during all phases of an engagement.
It’s important to remember that you and your expert share the responsibility for communicating effectively with each other. As the client, you must be able to communicate exactly what you are asking your expert to do and when you need the assigned tasks to be completed. In turn, the expert must effectively and efficiently translate technical terms and concepts involved in their analyses into terms that can be understood by you and other end-users of the material.
Forensic experts can play a positive role in your assignment, project, or file, but it’s important to hire the most qualified person or company, communicate goals clearly, and develop a high level of professional trust in order to benefit fully from the relationship.
Timothy J. Voncina, CPA/CFF, is a partner and Gregory T. Brown, CPA, is a senior manager with RGL Forensics. They can be reached at (630) 625-4220, www.rgl.com.