Anyone who has prosecuted or defended a complicated civil lawsuit understands the importance of an excellent expert witness. But not all expert topics are created equal.
Take medical malpractice, there is no question that it’s essential for a medical expert to help a jury understand what the doctor did, what he didn’t do, what he should have done, what he shouldn’t have done, and what the consequences were. While this does sound complicated, medical malpractice involves a part of peoples’ lives that most people basically understand. For example, if a surgeon left a surgical tool in a patient’s body after the surgery, most of us will understand that it is malpractice because it’s an obvious negligence.
But what about a financial expert witness’ testimony? Most people have a basic understanding of depositing and withdrawing and investing money, paying bills and the basics of balancing a checkbook. But financial lawsuits are never that simple. Almost all of them involve arcane, sophisticated and complex financial prestidigitation. We see the revenue and profit on an Excel spreadsheet, but many jurors will not understand the complicated formulas and macros that are imbedded in the financial statements and how those numbers came to be.
The financial expert witness is in a class of his own. When I was a law clerk, I helped in a case which had so many financial documents entered into evidence that one of the jurors became frustrated while reviewing the documents during the case.
High finance involves derivatives or thousands of pages of accounting. It’s all supposed to be digested by individuals who might not have any financial backgrounds. Too many times I’ve seen attorneys attempting to explain complex financial data to a jury. And they did so in a dull, dry and confusing manner.
If you’ve got a case that involves finances – from Ponzi schemes to securities fraud to insider trading – you can help the jury out and use a financial expert witness who can explain the finances to them in layman’s term. When you and your financial expert are preparing for trial, you can ask for several laypeople to listen to the direct examination of your expert to test whether or not they understand the concept. If they do not, then you will need to work with the expert witness to communicate the point.
My advice to trial attorneys: remember that (most) juries hate math and unless you do the math for them, what they don’t know might hurt your case when they get into the jury room. Even financial expert witness have to speak plain English.
By: Ian Heller, J.D.