The Care and Feeding of a Testifying Expert Witness
In civil financial cases that involve following money-deposits or disbursements- through bank and brokerage accounts, the testifying expert is provided with the legal documents, discovery documents (bank, brokerage statements, and credit card statements), admissions to interrogatories, and deposition testimonies. The records-preferably in PDF format with Bates numbers, are provided for review, organization, analysis, and reporting (ROAR). The expert will advise the attorney of what additional information and documentation he/she will need to arrive at various opinions. He/she will also discuss what testimony, via deposition, will be needed to aid the development of evidence and of his/her opinions.
The discovery of records and testimony is necessary to have an overall understanding of what transactions have taken place and why. The flow of discovery is important to the expert. It cannot generally be controlled, yet, the better the flow of discovery, the easier the development of the facts from the evidence, and therefore, less impact on the client's budget. As is necessary, an attorney should subpoena third-party records that the defense appears reluctant to produce.
The expert witness organizes and reviews the documents and prepares an inventory of the records to allow them to be searched and retrieved efficiently. Original records are retained and copies of the records necessary for the report of the expert are maintained separately. Secure online cloud services are very beneficial for the review of records and testimony.
The expert witness prepares a number of detailed analyses of the bank, brokerage, credit card records, income tax returns, contracts, and other pertinent records. The detail is then reduced into a summary for ultimate presentation in a report, or if necessary in court, as a summary of voluminous records.
The expert has in mind Rule 1006 in the Federal Rules of Evidence Article X, regarding contents of writings, recordings, and photographs. The rule allows the proponent to use a summary, chart, or calculation to prove the content of the voluminous records in an effort to aid the court in examining the records. The original records must be available for examination or copying by both parties at a reasonable time and place and available in court.
Depending on the circumstances, some attorneys prefer to have a detailed report containing a rendition of the evidence as viewed by the expert, referenced to the exhibits, and followed by the opinion of the expert. Other attorneys prefer to submit a list of opinions of the expert without the references to the exhibits. For the expert, it makes no difference because he/she must support their opinions with references to exhibits and an explanation of the observed facts.
The report must meet all the required criteria under FRCP 26(a)(2)(B) or other rules, including: