Last week we began discussing how you should go about cross-examining your opponent’s financial expert in the divorce case you are litigating. This week we examine your strategy choices and your methodology under each.
Remember that at trial you will be telling a story to the judge and/or jury about how your client’s spouse is attempting to deprive him or her of a rightful share of the couple’s property. Your opponent’s story, on the other hand, will be how the spouse is the reasonable party and your client the unreasonable one. Your CFL Designation for Divorce Practitioners gives you the financial knowledge you need, not only to help you tell your client’s story, but also to help you discredit your opponent’s story.
Generally, you can take three approaches to discrediting your opponent’s financial expert:
- Put his or her credibility in doubt
- Discredit his or her expert opinion
- Support your own story using his or her calculations and/or opinions
An expert’s opinion is credible only if (s)he is, in fact, an expert. Depending on the facts of this particular case, does your opponent’s expert witness possess the requisite qualifications to competently perform the work (s)he did? Did (s)he adhere to the appropriate professional standards of practice? Did (s)he perform a truly objective investigation and analysis of all relevant documents?
Sometimes you can discredit the expert by means of questioning his or her independence. For instance, does (s)he regularly testify for your opponent in similar divorce cases? Is (s)he connected in any way to your opponent’s law firm? Does a significant portion of his or her own income derive from your opponent’s firm? An affirmative answer to any of these questions immediately prejudices the jury against him or her.
Faulty Assumptions and Calculations
Whatever model the financial expert used, it contains embedded assumptions. Are those assumptions valid? With the pre-trial assistance of your own forensic accountant, you should long since have broken the opposing expert’s model into its component parts and carefully examined each one for internal inconsistencies, faulty reasoning, erroneous calculations, etc.
If you can establish that the expert used reverse engineering; i.e., started with the desired outcome and worked backward to support it, even your laymen jury, who know little or nothing about complex financial issues and calculations, know biased methodology when they see it. It is your job to make them see it.
Often you can bolster your own story by means of your opposing expert’s methodology. For instance, did (s)he really consider and take into account all the relevant documents and other information you provided during discovery? Did (s)he overlook one or more critical details, either deliberately or inadvertently? Does anything (s)he said during depositions or direct examination actually back up your story rather than your opponent’s?
Quit While You’re Ahead
Given the dryness and complexity of financial expert witness testimony, do not conduct a longer cross-examination than you need to. Hit the weakest aspect(s) of the expert’s credibility first, and hit it or them hard. Remember, the jury is not interested in getting into the weeds of financial analysis. Nor will they likely understand it if you do. Overloading them with a long list of the expert’s exact failures not only confuses the issues in their minds, but also likely bores them to tears. Assess the jury’s engagement in and with your cross-examination. Once you see them agreeing with your position, stop. Don’t risk losing them through boredom or confusion once you have them.
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.