CFS Expert Testimony & Court Presentation 3 — Questions and Answers
Question 1: The 'battle of the experts' phenomenon occurs when opposing experts reach contradictory conclusions. To maintain credibility in this situation, a fraud examiner should:
- Aggressively attack the opposing expert's qualifications in testimony
- Clearly articulate the methodological differences that explain the divergent conclusions (Correct answer)
- Request the court appoint a neutral third expert
- Decline to comment on the opposing expert's opinion at all
Correct answer: Clearly articulate the methodological differences that explain the divergent conclusions
Explaining methodological differences helps the jury understand why experts disagree and positions the witness as a credible educator rather than an advocate.
Question 2: Under the Federal Rules of Civil Procedure Rule 26(a)(2), an expert's written report must include:
- Only the final conclusions without underlying data
- All communications between the expert and retaining counsel
- A complete statement of all opinions and the basis and reasons for them (Correct answer)
- The expert's billing records and hourly rate details
Correct answer: A complete statement of all opinions and the basis and reasons for them
FRCP 26(a)(2) requires the report to contain all opinions the expert intends to express, plus the basis, reasoning, data considered, and exhibits.
Question 3: When an attorney instructs an expert witness 'don't volunteer information' before testimony, this instruction is:
- Unethical and should be reported to the bar
- A standard and legitimate preparation instruction (Correct answer)
- A form of witness tampering under federal law
- Irrelevant since experts must answer all questions fully
Correct answer: A standard and legitimate preparation instruction
Advising a witness to answer only what is asked, without volunteering extra information, is standard and permissible trial preparation.
Question 4: A fraud examiner is testifying about a Ponzi scheme. The most persuasive way to explain the scheme's mechanics to jurors is to:
- Read verbatim from the SEC's legal definition of a Ponzi scheme
- Use a simple visual showing money flowing from new investors to pay old investors (Correct answer)
- Testify solely in accounting terminology to establish authority
- Reference well-known cases like Madoff without explaining the underlying mechanics
Correct answer: Use a simple visual showing money flowing from new investors to pay old investors
A clear visual flow diagram showing the circular movement of investor funds makes the scheme's mechanics immediately comprehensible to lay jurors.
Question 5: Which circumstance would most appropriately lead an expert witness to change their opinion before trial?
- Retaining counsel pressures the expert to align with a higher damages figure
- New documentary evidence is produced in discovery that contradicts prior assumptions (Correct answer)
- The opposing expert published a paper disagreeing with the methodology
- The client's settlement demand increases significantly
Correct answer: New documentary evidence is produced in discovery that contradicts prior assumptions
New material evidence that changes the factual basis of an opinion legitimately requires the expert to revise their conclusions.
Question 6: What is the primary purpose of a Daubert hearing in a fraud case?
- To allow the jury to evaluate the credibility of expert witnesses
- To allow the judge to screen expert testimony for reliability and relevance before trial (Correct answer)
- To enable both sides to exchange expert reports for the first time
- To determine the expert's fee arrangement with retaining counsel
Correct answer: To allow the judge to screen expert testimony for reliability and relevance before trial
A Daubert hearing is a pretrial gatekeeping proceeding where the judge determines whether proposed expert testimony meets the reliability standards of FRE 702.
Question 7: An expert witness who charges a contingency fee (a percentage of the damages awarded) is:
- Permitted if disclosed to the opposing party
- Standard practice in complex commercial litigation
- Prohibited because it creates an improper financial interest in the outcome (Correct answer)
- Acceptable only in cases involving less than $100,000 in damages
Correct answer: Prohibited because it creates an improper financial interest in the outcome
Contingency fee arrangements for expert witnesses are prohibited because they create a financial stake in the outcome that undermines the expert's required objectivity.
CFS Expert Testimony & Court Presentation 3
The 'battle of the experts' phenomenon occurs when opposing experts reach contradictory conclusions.
To maintain credibility in this situation, a fraud examiner should: