Article by Anthony Cardiel, CPA/ABV, CFE
All Forensic Valuation Services (FVS) professionals must go through it: Your first time testifying. How do you prepare to testify for the first time? I had the privilege of interviewing Judge James Lombardino of the 308th Family District Court for some advice.
Judge Lombardino has been practicing family law for over 40 years and has presided over the 308th Family District Court since January 1, 2011. He obtained his JD from the South Texas College of Law and was last re-elected in 2014.
If an expert witness is testifying for the first time in your court or any other court, what is your advice to them?
Judge Lombardino: There are a few things that every expert witness should do. The first thing is to be prepared. It sounds simple enough, but there are many instances where an expert witness doesn’t recall the facts of the case they are testifying to. The second thing an expert witness should do is to go over what they are going to testify to with the attorney beforehand. This may help you be prepared for questions from the attorney that employed you and from opposing counsel regarding your testimony. Thirdly, and many people are not aware this is possible, but an expert witness can listen to the opposing counsel’s expert witness trial testimony. Of course, you only have this option if you are testifying second. If for some reason you cannot attend court, you can order an overnight transcript to be prepared. By hearing the opposing witness’ testimony, you may be able to include points when you are testifying that will make your testimony more complete and helpful to the judge or jury.
When an expert witness CPA is on the stand, what do you expect to see or hear from them?
Judge Lombardino: If you are called to testify, you should go over the standards you used, if applicable. You should also be able to speak to the methodology used to develop your opinion. By being able to state these things clearly you will most likely look more competent. You may also demonstrate a weakness in opposing counsel or their expert witness if their answers or report are not detailed enough.
Have you ever had to exclude a CPA from testifying and if so, why?
Judge Lombardino: No. Expert witnesses are only excluded if they are not competent in the field or subject they are testifying to. Having the authority of the Texas State Board of Public Accountancy behind your CPA license makes it difficult to exclude a CPA as a witness. Opposing counsel will most likely still challenge your opinion. Your testimony may be excluded if your report is not completed in a timely fashion. Make sure you know what date the report is needed and don’t wait until the last minute.
What is a common misstep that you see among the more inexperienced expert witnesses?
Judge Lombardino: The most common misstep I see for inexperienced expert witnesses is experts talking too much, trying to justify their expertise. They may go into detail for a yes or no question. They should only answer the questions. Sometimes the more information you give, the more it helps the opposition. I also see a tendency to try and “railroad” a case based on credentials. The work must be done in order for your opinion to stand up in court. Your credentials or expertise alone won’t get the job done.
Tell us about one of the worst examples that you’ve ever seen.
Judge Lombardino: There was a case where an expert witness repeatedly used the wrong name in their testimony. It demonstrated a lack of preparation.
Is there any other advice that could help a beginner?
Judge Lombardino: Don’t feel that you have to answer questions instantly. It is better to take your time and make sure you give the correct answer. If you need to take a few seconds to frame your answer its okay. Know what is in your report. Do not let opposing counsel’s leading questions allow you to testify to something that isn’t in your report or to facts and opinions that you have not stated. Listen carefully to the question before answering and wait for the attorney to finish the question before answering.
Anthony Cardiel, CPA/ABV, CFE is a partner at Summit Valuation Advisors. As an experienced CPA with exposure to many industries and work environments. Specializing in privately owned business, not for profit, and governmental services. Expert at increasing internal control and improving operational processes. Experienced in court testimony on various audit and valuation topics.