Expert Witness or Consultant

One of our newer Chapter members submitted a comment on-line two weeks ago requesting information about the pitfalls involved in the CFE choosing to act as a consultant to a client attorney rather than as an expert witness. This is an important topic for CFEs in individual practice as well as for those serving as examiners on the staffs of private or public entities. The ACFE tells us that CFEs typically act as experts in the legal process by assisting attorneys with the financial details of a suit and testifying about these practices at trial. They analyze documents and transactions, showing how the fraud was accomplished and, when possible, who the most likely perpetrators were. The CFE is a guide and adviser for the attorney in assembling the case, and a major participant in explaining the details of a fraud scenario to a judge and jury.

In general, expert witnesses are typically brought in when required by law, as in malpractice suits where a member of a given profession must explain the infraction against professional by-laws or principles; when key points are deemed sufficiently technical or complex, such as in cooking-the-books schemes involving intricate accounting manipulations, or to assist a jury in making its decision. Federal Rule of Evidence 702 says that an expert witness with appropriate knowledge and credentials may testify in any proceeding where scientific, technical, or specialized knowledge will shed light on the dispute. Even in cases that don’t go to trial, experts may still be involved in mediation, arbitration, settlement conferences, or summary judgment motions.

Experts contribute to the trial process in numerous ways. They provide background information to guide and frame a case; during the discovery process they investigate, run tests, advise on depositions, prepare other witnesses, make exhibits, and respond to the opposition’s discovery requests; they file written opinions, which are entered as evidence into the court record; and they testify in actual proceedings should the case make it to a courtroom.

Once they accept a case, many experts immediately start assembling a narrative version of the events. This detailed summary of the facts of the case serves as the raw material for rendering an official opinion. As we’ve pointed out many times, it’s important that the text be written with care and professionalism because the text may (and probably will) have to be produced during discovery. Additionally, a well-written narrative helps the client attorney in preparing and executing the case at trial.

According to our most experienced members, perhaps the thorniest challenge for CFEs, once they’re engaged to work on a case, is setting a value on the specific business losses due to a fraud. Depending on the facts, there may be several methods for evaluating net worth/net loss, each rendering a different number at the end. And regardless of the numbers, there’s always the human element. Calculating business loss is a challenging task in a complex case because the examiner has to consider the amount of business being done, try to reconstruct the market conditions, think about competitors, and then calculate the amount of direct personal benefit; all of these factors being intertwined. In such cases, the examiner must consider a variety of points, prepare an estimate of loss, and then, most often, try to work out a compromise.

Article V. of the Association of Certified Fraud Examiners Code of Professional Ethics states:

A fraud examiner, in conducting examinations, will obtain evidence or other documentation to establish a reasonable basis for any opinion rendered. No opinion shall be expressed regarding the guilt or innocence of any person or party.

The rule that prohibits opinions regarding the guilt or innocence of any person or party is a rule of prudence. Clearly, it’s prudent for a Certified Fraud Examiner to refrain from usurping the role of jury. In a courtroom, no good attorney would ask a CFE for such a conclusion, and no alert judge would allow such testimony.  The fraud examiner’s job is to present the evidence in his or her report. Such evidence might constitute a convincing case pointing to the guilt or innocence of a person. But a clear line should be drawn between a report that essentially says, “Here is the evidence” and one that steps over the line and says “S/he is the guilty (innocent) person.” Nevertheless, there is a fine line between recommending action, forwarding the evidence to a law enforcement agency or filing a complaint or lawsuit, and giving an opinion on guilt or innocence. CFEs may make such recommendations because they think the evidence is strong enough to support a case. They might even have a conclusion about whether the suspect committed a crime. The rule does not prohibit the CFE, under the proper circumstances, from accusing the person under investigation. However, the ultimate decision of whether a person is “guilty” or “innocent” is for a jury to determine. The CFE is free to report the facts and the conclusions that can be drawn from those facts, but the decision as to whether a person is guilty of a crime is a decision for the judge or jury.

Caution is the by-word for every expert witnesses at every step of the legal process. According to discovery rules governing expert testimony, everything the expert says or writes about the case after being hired is subject to discovery by opposing counsel. That means everything: narrative versions of the case, comments to the press or law enforcement, hypothetical reconstructions, even notes can be demanded and used by the opposing party. A shrewd attorney can use an expert’s preliminary notes containing drafts of an opinion and other purely deliberative information to call the witness’s testimony into question. The only exception is when the expert is hired by the attorney purely on a consulting basis. An expert witness has no privilege. The principle of privilege exists to protect certain core societal relationships (attorney-client, husband-wife), but the expert witness’s relationship with clients is not among those protected. If the expert’s opinions will be presented in court, everything related to the expert’s opinion is discoverable by the defense.

There is an exception. The CFE expert may consult on the client attorney’s work product, i.e., materials the attorney prepares as background for a case. While performing background work, the expert is said to be working as an associate of the attorney, so the exchange is protected; they are two professionals conferring. However, once the expert is hired as a witness, and begins entering opinions as part of the attorney’s case, there is no privilege for any contribution the expert makes. The distinction is something like this: when acting as “witnesses,” experts are bringing official information to the court, and so must disclose any contact with the case; when experts act as “consultants” or “associates” for attorneys or law enforcement, they are only assisting the attorney, and do not have to disclose their involvement in the case. However, if a testifying expert reviews the work of the consultant expert, then the work of the consultant expert will be discoverable. Remember this; if a CFE is hired to testify at trial, anything he or s/he used to form his or her opinion will be subject to review by the opposing party. This includes notes from other experts, documents received from the plaintiff or defendant, and any documents or notes from the attorney. CFEs should be sure to consult with the client attorney before reviewing anything. If the attorney has not given the document to you, then ask before you read. Otherwise, you may inadvertently destroy the confidentiality or privilege of the material.

In summary, the best way to protect the confidentiality of information is to keep good files. Any materials which serve as the basis for an expert’s opinion must be in the file. Notes, documents, or tests that serve as background, or that represent unfruitful lines of investigation, don’t have to be included, and probably shouldn’t be. The attorney trying the case doesn’t want an expert having to answer about investigative dead ends or exploratory side lines; a shrewd cross-examiner can turn a hastily scribbled hypothetical into reasonable doubt, just enough to avert a conviction. So, in the best-case scenario, an expert presents to the court an opinion and its basis, nothing more nothing less.

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