CFS Expert Testimony & Court Presentation 2 — Questions and Answers
Question 1: During cross-examination, opposing counsel asks the fraud examiner about a prior case where their methodology was criticized. The best response is to:
- Refuse to answer, citing attorney-client privilege
- Acknowledge the criticism and explain how methodology was subsequently refined (Correct answer)
- Claim the question is irrelevant and ask the judge to intervene
- Deflect by criticizing opposing counsel's understanding of forensic methods
Correct answer: Acknowledge the criticism and explain how methodology was subsequently refined
Acknowledging past criticism and demonstrating improvement shows intellectual honesty and actually strengthens credibility with the jury.
Question 2: A fraud examiner is asked to calculate lost profits in a civil fraud case. Which methodology is most defensible under Daubert standards?
- The 'yardstick' method using comparable businesses with no adjustments
- A before-and-after method using the plaintiff's own historical financials with documented assumptions (Correct answer)
- A projection based solely on industry averages without case-specific data
- An estimate provided verbally by the plaintiff's CEO
Correct answer: A before-and-after method using the plaintiff's own historical financials with documented assumptions
The before-and-after method using the plaintiff's actual historical data with documented, testable assumptions best satisfies Daubert's reliability requirements.
Question 3: When the judge asks an expert witness to clarify a technical term 'in plain English,' the witness should:
- Politely explain that simplification would distort the meaning
- Provide a clear analogy or everyday comparison without sacrificing accuracy (Correct answer)
- Refer the judge to the written report for the definition
- Ask the retaining attorney to answer on their behalf
Correct answer: Provide a clear analogy or everyday comparison without sacrificing accuracy
Judges and juries are lay audiences; clear analogies that preserve accuracy are both professional and effective.
Question 4: Which of the following would most likely cause an expert witness's opinion to be excluded under Federal Rule of Evidence 702?
- The expert has 20 years of field experience but no academic credentials
- The expert's methodology was not peer-reviewed and has no known error rate (Correct answer)
- The expert's opinion differs from the opposing expert's opinion
- The expert relied on interviews with the plaintiff's employees
Correct answer: The expert's methodology was not peer-reviewed and has no known error rate
FRE 702 requires reliable methodology; lack of peer review and an unknown error rate are core Daubert factors that can lead to exclusion.
Question 5: An attorney asks the fraud examiner to include in their report a conclusion that goes beyond the data they reviewed. The examiner should:
- Include the conclusion since the attorney has legal authority over the case strategy
- Refuse and explain that opinions must be supported by the evidence reviewed (Correct answer)
- Include the conclusion but add a footnote disclaiming personal responsibility
- Ask a junior analyst to sign the report instead
Correct answer: Refuse and explain that opinions must be supported by the evidence reviewed
Expert opinions must be grounded in sufficient facts and data; an expert who exceeds their evidentiary basis risks Daubert exclusion and damages their credibility.
Question 6: In a jury trial, the fraud examiner is presenting a chart showing a complex embezzlement scheme. The most effective presentation technique is to:
- Display all transactions simultaneously in a dense spreadsheet format
- Build the chart incrementally, explaining each layer before adding the next (Correct answer)
- Use only written descriptions to avoid visual distraction
- Present the chart only in the written report, not during live testimony
Correct answer: Build the chart incrementally, explaining each layer before adding the next
Incremental visual building helps jurors follow complex financial narratives without becoming overwhelmed.
Question 7: A fraud examiner retained by the defense discovers evidence that actually supports the prosecution's case. The examiner's ethical obligation is to:
- Disclose the evidence to retaining defense counsel only and let them decide (Correct answer)
- Suppress the evidence since it harms the client who is paying the fees
- Immediately notify the court directly without informing defense counsel
- Withdraw from the engagement rather than testify falsely
Correct answer: Disclose the evidence to retaining defense counsel only and let them decide
The examiner must disclose adverse findings to retaining counsel, who then bears the disclosure obligations; the examiner must not testify to opinions they know to be false.
CFS Expert Testimony & Court Presentation 2
During cross-examination, opposing counsel asks the fraud examiner about a prior case where their methodology was criticized.
The best response is to: