Depositions can make or break a case, especially when it comes to financial experts who may provide critical testimony. For attorneys dealing with intellectual property, royalty disputes, or damages claims, a strong deposition of an opposing expert is key to uncovering flaws in their analysis, challenging their damages conclusions, or shoring up your own case. Here's how to prepare and execute an effective deposition of a financial expert according to me, your expert.
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| Forensic Accountant Cedar Boschan |
Involve Your Financial Expert Early
Retaining your own financial expert before discovery begins is crucial, especially in complex cases. Early involvement allows your expert to advise on discovery requests, such as interrogatories and document production, that will provide the data necessary for a thorough analysis. This proactive approach can lead to a more accurate understanding of the case’s financial aspects, allowing your expert to better rebut opposing testimony.
Involving your expert early also helps you anticipate weaknesses in the opposing expert's report, giving you a strategic advantage in depositions
Understand the Opposing Expert’s Background and Qualifications
Review the expert’s qualifications, including their education, certifications, and professional experience. A financial expert with less relevant experience may struggle to explain complex valuation or auditing principles under pressure. Look for gaps in their credentials or areas where they may be overreaching.Know the Opposing Expert's Report Inside Out
Start by thoroughly reviewing the expert's report and any supporting materials. Identify the key points of their analysis, especially any assumptions or methodologies that seem questionable. Make sure you understand the subject matter enough to spot inconsistencies or potential errors. Collaborating with your own financial expert during this stage can provide deeper insights into the opposing expert's weaknesses.Decide Your Deposition Approach: Tie Them Down or Impeach?
When cross-examining a financial expert during deposition, it’s tempting to go after them aggressively. However, this can backfire.Before you start, consider your goal for the deposition. Do you want to tie the expert to their opinions so they can’t modify them later, or are you aiming to impeach their credibility and methodology? These two approaches require different strategies:
- Tie them down: Focus on obtaining the expert’s opinions and gathering information underlying and locking them into a position that limits their flexibility at trial. Use this strategy when the expert seems sound but could be vulnerable under scrutiny. By getting clear answers, you can later work with your own financial expert to identify areas of weakness to address during trial. Leaving the hard-hitting cross-examination for trial ensures you won’t accidentally educate the expert on your strategies.
- Impeach: Alternatively, if you aim to discredit the expert, look for opportunities to expose flaws in their methodology, challenge assumptions, or highlight bias. This approach can be risky as it may inadvertently "show your hand." In other words, it may cause the opposing expert to prepare by strengthening their testimony at trial, especially if they can correct their mistakes or clarify their testimony before then. To avoid this, it’s important to carefully plan your cross-examination with your financial expert early-on.
Tip: In many cases, a hybrid strategy can be employed - locking down the expert’s opinions while subtly probing for impeachment opportunities without showing your hand.
Leverage Your Expert to Assist with Drafting Deposition and Cross-Examination Questions
Ask your expert to identify credibility weaknesses questions using tactics such as:
- Challenge their expertise if it appears they are not specialized in the relevant area (e.g., royalty audits vs. damages calculations)
- Ask about their track record in court or deposition to see if they have any vulnerabilities as a witness
- Establish bias or conflicts of interest including financial incentives, such as compensation structure
- How many times have you testified for the opposing party or similar clients?
- What percentage of your income comes from working as an expert witness?
- Are there any professional or personal relationships with the party that could affect your impartiality?
An expert’s credibility can be damaged if you can show they selectively included or ignored data that doesn’t support their conclusions. Therefore, ask your expert to highlight inconsistencies or omissions in the opposing expert's report or record. You can use the deposition to further uncover inconsistencies in the expert’s testimony, either with their report, other testimony, or known facts of the case.
Ask the opposing expert to clarify:
- Why they chose certain data points while ignoring others
- If any alternative methods were considered and why they were rejected
- If there is any academic or industry criticism of the approach they used
A financial expert’s methodology is a crucial point of attack. Ask your expert to look closely at the processes the opposing experts used to arrive at their conclusions and ask detailed questions designed to disclose the following:
- Were industry standards followed?
- Did they selectively ignore data?
- Did they combine nominal and real rates —an error that skews projections and can be a major vulnerability during trial?
- Are they using current or historical data inconsistently?
- Did they overlook important factors, like work-life expectancy or inflation projections?
- What generally accepted specific methods did you rely on for your analysis?
- How do those standards apply to the facts of this case?
- Have you ever used a different method in similar cases? Why or why not?
- What assumptions did they base their analysis on?
- Are the expert's assumptions well-supported by the evidence?
- Has the expert made any mathematical or interpretive errors?
Test Their Limits: Push Beyond the Opposing Expert's Comfort Zone
Experts, no matter how experienced, have limits. Use the deposition to find those limits by probing deeply into their knowledge of specific accounting principles, economic theories, or valuation techniques. This can reveal overconfidence or expose gaps in their expertise, especially if the expert is more generalist than specialist.Explore their depth of knowledge by asking:
- Can you explain the basis for [specific financial principle] in this context?
- How would this approach differ if the facts were [adjusted scenario]?
- Have you ever been criticized for this methodology in past cases?
Stay Focused: Avoid Tangential Debates with the Opposing Expert
While it may be tempting to engage in deep financial debates, remember that your goal is to collect information and expose weaknesses. Avoid getting bogged down in overly technical details that distract from your strategy. Keep the deposition focused on the big picture: undermining the expert’s credibility and methodology while gathering useful admissions.Prepare for Trial Using the Opposing Expert's Key Admissions
Finally, try to lock the opposition's expert into key admissions that will support your case or undermine theirs. These admissions can be used during trial to cast doubt on the expert’s analysis or reliability. Aim for clear, concise statements on points where the opposing expert’s opinion is weakest or most vulnerable.During trial, your financial expert can then highlight these weaknesses, helping to undermine the opposing expert’s credibility in front of the jury.
Key admissions to target:
- Concessions about the limits of their analysis
- Acknowledgment of alternative approaches they could have taken
- Agreement that certain assumptions were subjective or speculative
Final Thoughts
Deposing a financial expert requires careful preparation and an understanding of both legal and financial principles. By asking the right questions and maintaining focus, you can reveal flaws in the expert's analysis, highlight biases, and make their testimony less compelling at trial.Attorneys handling cases involving forensic accounting or intellectual property rights should be well-versed in these techniques to ensure a successful deposition. With the right approach, you can turn a financial expert from a strong adversary into a liability for the opposing side.
