Over the past two weeks we discussed when to add a forensic accountant to your family law team and how to effectively work with him or her once (s)he is on board. This week we shift the focus from your side of the divorce case to that of your opponent. More specifically, how to bring into question the work your opponent’s financial expert has done.
If you are like most family law attorneys, few of your divorce cases go to trial, let alone a jury trial. The fact that this case and its financial issues are complex enough that both sides hired forensic accountants may make a trial necessary. If so, the most important thing for you to remember is that even if you have a CFL Designation for Divorce Practitioners, the judge likely does not and the jurors most certainly do not. Consequently, they are not conversant with financial jargon and may not understand even the rudiments of a complex financial battle. It is your job to make them understand.
Trial Preparation
Thorough preparation is crucial for any trial, but especially so for one involving complex financial issues. Make sure you do extensive discovery including appropriate interrogatories, requests for admissions, production of documents, witness list, etc. Then crawl through everything with the proverbial fine-tooth comb. This is your first opportunity to discover discrepancies, inconsistencies, unfounded assumptions, faulty reasoning, etc. Start a binder of key points you want to make at trial and how the discovery documents concur with or dispute those points.
When you depose your opponent’s financial expert, insist that (s)he bring his or her credentials if you don’t already have them. These should include degrees, certifications, continuing education, published articles, teaching positions, etc. You may discover that the expert is not, in fact, an expert at all.
Trial
It goes without saying that you will be telling a story at trial; i.e., the story of how your client’s spouse has gone about depriving your client of his or her rightful share of the couple’s property. While your cross-examination of the spouse is highly relevant in telling your story, your cross-examination of the spouse’s financial expert can be even more critical.
This is where the binder you started months ago serves its purpose. It now is your roadmap of the points you want to cover in cross-examination, how you want to cover them, and what evidence, both yours and your opponent’s, you want to use. Still, your binder is only a roadmap. Listen carefully to opposing counsel’s direct examination and the answers the expert gives. Note anything that deviates from what you expected, such as a recantation, actual or implied, of the expert’s previously held position. You may discover that your roadmap just gained a marvelous detour.
Also note how the judge and/or jury is reacting to the expert’s testimony. Are their eyes glazing over? Did (s)he lose them the minute “market share” or “discount rate” came out of his or her mouth? At best, this is very dry information; at worst, they don’t understand a word (s)he says. Actually, that is the best of all possible worlds for you.
Cross-examination
When it is your turn to cross-examine, stick with the K.I.S.S. principle: keep it simple, stupid. Speak in layman’s language and insist that the expert answer you likewise. If (s)he cannot or will not, rephrase the answers by asking rhetorical questions such as, “Did I understand you to say. . .?”
Attack what you believe to be the expert’s weakest point first; the sooner you discredit him or her, be it through credentials, methodology, assumptions, discrepancies, or whatever is weakest, the sooner the judge and/or jury will doubt everything (s)he says. That, after all, is your whole purpose.
For more information on financial issues you need to be aware of, how gaining your CFL Designation for Divorce Practitioners will give you the financial knowledge and skills you need to attract additional high-asset clients, and the other benefits of AACFL membership, please visit this page on our site.
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