Financial Expert Witness Communication - Valuation

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Financial Expert Witness Communication

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Praise for Financial Expert Witness Communication

"Financial Expert Witness Communication is a great resource for those who have an interest in better understanding what it takes to be an expert witness, attorneys hiring financial expert witnesses, as well as experts and attorneys who have been doing it for years and just need a reference book handy. The real-world practical tips, checklists, and advice are invaluable. These are usually obtained through many years of experience and hard knocks, but this book puts these many lessons right on the table."
—Michael A. Fahlman, Grant Thornton LLP, Forensic and Valuation Services Partner

"Mr. Preber's book is a terrific and easy-to-use reference guide both for experienced financial expert witnesses that want to review their rudiments in the course of an engagement and for new or relatively inexperienced entrants to the expert witness world. Financial professionals that are considering expert witness work will find helpful insight into what the work requires. I am not aware of another book like it."
—Bennett W. Lasko, Partner, Drinker Biddle & Reath LLP

"I knew Brad Preber was a financial expert par excellence. And I also knew he was a gifted communicator as well. But in this book, Financial Expert Witness Communication, he has simply hit it out of the ballpark … in other words, rephrasing only slightly, read this book, and I guarantee you shall Witness Communication by a Financial Expert! A great resource for those in the field rendering expert witness testimony, whether contemplating it (future—to prepare better), doing it (present—to refine their skills and competencies), or having done it (past—to relive and relish) … "
—Dr. Sridhar Ramamoorti, ACA, CPA/CITP/CFF/CGMA, CFE, CIA, CFSA, CRP, CGAP, CRMA, CGFM, MAFF; Director, Corporate Governance Center, and professor of accountancy, Kennesaw State University, Georgia, USA; Chairman, Committee on Governance, Risk, & Compliance of Financial Executives International (FEI); member, Standing Advisory Group, Public Company Accounting Oversight Board (PCAOB), 2014–2016
Disclaimer xiii

Foreword xv

Preface xix

Acknowledgments xxiii

PART I: DISPUTE RESOLUTION AND THE FINANCIAL EXPERT

Chapter 1: Value of the Financial Expert in Litigation and Dispute Resolution 3

Why Be a Financial Expert Witness? 3

Value of the Financial Expert Witness under Federal Rules 4

Enhancing Value Using the Litigation Process 13

Coming Up 14

Notes 14

Chapter 2: Roles Suited for the Financial Expert 17

The “Big Three”: Liability, Causation, and Damages 17

Financial Expert Assignments 19

Roles for the Financial Expert 20

Matters Suited for the Financial Expert 21

Financial Expert Litigation Services 22

Coming Up 27

Notes 27

Chapter 3: Retention of the Financial Expert 29

Finding Financial Experts 29

Prospective Client Due Diligence 35

Pre-Engagement Communications 39

Selection of the Financial Expert Witness 42

Coming Up 44

Notes 44

Chapter 4: Getting Started as a Financial Expert 45

Getting Started 45

Coming Up 61

Notes 61

Chapter 5: Civil Litigation and Dispute Resolution Processes 63

Civil Litigation Actions and Proceedings 63

Alternative Dispute Resolution 71

Coming Up 72

Notes 72

PART II: FINANCIAL EXPERT RULES, CASE PRECEDENT, AND ETHICS

Chapter 6: Federal Rules of Evidence for the Financial Expert Witness 77

Evidentiary Rules on Expert Witness Opinions and Testimony 77

Scientific, Technical, or Other Specialized Knowledge 79

Coming Up 94

Notes 94

Chapter 7: Federal Rules of Civil Procedure for the Financial Expert Witness 97

Procedural Rules on Expert Witness Reporting and Testimony 97

Coming Up 105

Note 105

Chapter 8: Basic Litigation Knowledge for the Financial Expert Witness 107

Laws and Rules 107

Legal Precedent 113

Orders 117

Court Rules and Policies 121

Privileged Communications 121

Professional Standards 122

Coming Up 122

Notes 122

Chapter 9: Professional Ethics Considerations 125

Professional Ethics 125

Ethical Considerations for the Financial Expert Witness 130

Trial 133

Coming Up 136

PART III: FINANCIAL EXPERT WITNESS REPORTS AND TESTIMONY

Chapter 10: Preparing the Financial Expert Witness Report 139

Federal Rules on Financial Expert Witness Disclosure 139

A PRACTICAL Way to Prepare a Financial Expert Report 140

Organization of the Financial Expert Witness Written Report 143

Writing the Financial Expert Witness Report 145

Caveats to Consider 149

Exhibits 153

Quality Control for Financial Expert Witness Reports 154

Coming Up 156

Notes 156

Chapter 11: Rebutting the Financial Expert Witness Report 157

The Financial Expert Rebuttal 157

Steps for an Effective Rebuttal 157

Case Study: Exclusion of the Financial Expert Witness 171

Risks of Having Only Rebuttal Opinions 174

Coming Up 174

Notes 174

Chapter 12: Discovery Using Deposition 177

What Is a Deposition? 177

Deposition Objectives 185

Coming Up 187

Chapter 13: Financial Expert Witness Deposition Preparation 189

Preparation for Deposition 189

Expected Deposition Questions 192

Confer with Client Legal Counsel 200

Leading Up to Deposition 203

Coming Up 204

Chapter 14: Financial Expert Witness Deposition Testimony 205

Deposition Testimony 205

Post-Deposition Activities 225

Coming Up 227

Notes 227

Chapter 15: The Financial Expert Witness and Motions and Hearings 229

Motions 229

Hearings 235

Coming Up 236

Notes 236

Chapter 16: Financial Expert Witness Trial Testimony 237

Types of Trials 237

Components of Trial Examination 238

Preparation for Trial Testimony 239

Objections 248

Coming Up 250

Notes 250

Chapter 17: Financial Expert Witness Direct Examination 253

Direct Examination 253

Direct Examination Outline 258

Trial Demonstratives 259

Preemptive Cross-Examination 260

Use of the Expert Report in Trial 261

Redirect Examination 261

Rebuttal Testimony 262

Coming Up 262

Notes 262

Chapter 18: Financial Expert Witness Cross-Examination 263

Cross-Examination 263

Objectives of Cross-Examination 264

Cross-Examination Techniques 268

Ten Commandments of Cross-Examination 272

Surviving Cross-Examination 274

Re-Cross-Examination 277

Coming Up 277

Notes 278

PART IV: ALTERNATIVE DISPUTE RESOLUTION

Chapter 19: Alternative Dispute Resolution: Mediation 281

Mediation Process 281

Financial Expert Participation in Mediation 282

Mediation Activities 284

Coming Up 288

Notes 289

Chapter 20: Alternative Dispute Resolution: Arbitration 291

The Arbitration Process 291

Structure of Arbitration 292

Arbitration Activities 293

Financial Expert Participation in Arbitration 300

Coming Up 301

Chapter 21: Alternative Dispute Resolution: Neutral Accounting Arbitration 303

Neutral Accounting Arbitration 303

Neutral Accounting Arbitration Process 304

In Closing 312

Bibliography and Suggested Reading 313

About the Author 317

About the Website 319

Index 321
BRADLEY J. PREBER, CPA, CFF, CFE, is the National Managing Partner of Grant Thornton LLP’s Forensic and Valuation Services Practice. With more than 30 years’ experience, he has prepared numerous expert reports as an accounting, financial, fraud, and/or damage expert and has testified in federal court and state courts. Preber is the primary author of the AICPA’s Introduction to Civil Litigation Services, and he has instructed National Institute of Trial Advocacy (NITA) programs.