As we all know, few matters end up in court. A settlement, often at the last minute, is the norm. But some cases do go to trial and every fraud investigator must be ready to testify in court. As I have discovered when appearing in court as an expert witness, it can be intimidating, but also exhilarating. Just don’t stray beyond your expertise.
Beware the Slippery Slope
It was the type of cunning question by a defense lawyer I had been warned about. A seemingly innocent inquiry in a very intense setting: a murder trial in Ontario Superior Court in 2011.
The case was shocking and high profile. Glen Davis, who was described in media reports as a millionaire wildlife philanthropist, had been gunned down in an underground parking lot in Toronto in May 2007.
His godson, Marshall Ross, who was a distant cousin, was accused of having commissioned the 66-year-old victim’s killing. By all accounts, Davis, who was more than 20 years older than Ross, had treated his godson with incredible kindness.
“Between 2004 and 2007, Mr. Davis lent close to $3 million from his sizeable fortune…to help the younger man finance a home-renovation business in Toronto,” reported the National Post. “Mr. Davis also frequently gave Ross business advice and never questioned Ross’s decisions. In return, court heard this week, Ross, 41, lied repeatedly to Mr. Davis, cooked up falsified spreadsheets, invented addresses of buildings in which he pretended to be investing and, when he realized he could not repay Mr. Davis, arranged to have him killed.”
According to the Crown, Ross had conspired to enact the murder with three men: Ivgeny (Eugene) Vorobiov, charged with first-degree murder for having shot Davis twice on May 18, 2007; Dmitri Kossyrine, charged with first-degree murder for having engineered the shooting; and Jesse Smith, who had worked on construction sites with the accused and pleaded guilty to accessory after the fact. (Smith was initially charged with first-degree murder but pleaded guilty to the lesser charge in November 2010.)
All three men were connected to Ross and each other through the construction and home-renovation industry in which they worked.
That connection was the reason for the cunning question. Ross had pleaded guilty about a month before my appearance in court, as had Smith, the year prior; but not Vorobiov or Kossyrine. They proclaimed their innocence.
I was testifying as a forensic accountant about the financial evidence presented in court that seemed to link the accused in a conspiracy. Basically, my role was to help the court follow the money. A critical issue was the allegation, by Smith, that his friend and employer, Kossyrine, had initially offered him $100,000 to kill Davis. Smith said he declined. Sometime later, the Crown alleged, Vorobiov was also offered a substantial amount of money to do the same, and he accepted.
Defense counsel, it seemed to me, wanted to introduce doubt in the jury’s mind as to whether any large amount of money that might have passed between the two accused was actually for a contract hit. Early in his cross-examination, counsel asked me if I would agree that there’s a large cash component in the construction industry. In other words, the money could have been under-the-counter payment for legitimate work.
It was presented as almost a rhetorical question, the way you’d ask a Canadian if it was likely more difficult to drive on icy streets than bare ones. His question, however, was a slippery slope I knew I couldn’t go down under any circumstances.
“I couldn’t say,” I replied, or words to that affect. “I have no expertise in the construction industry.”
Counsel, a shrewd interviewer, didn’t give up. He basically asked the question again, adding that I could answer “just between the two of us.”
That was a reasonable suggestion as long as I could block out the rather obvious fact that there was also a judge and jury present and that it was asked in open court.
I again declined to speculate on something outside my expertise, a critical tactic I’d been taught years ago by wise and experienced senior forensic accountants. “The first thing they’ll try to do is get you out of your box, to start you speculating on matters for which you have no expertise,” one of my mentors had said. “Once they do that, you’re screwed.”
In the end, Vorobiov was convicted of first-degree murder by the jury. I was pleased with how I had delivered my evidence on the stand, primarily because I stuck to what I knew and didn’t embellish any testimony or wander outside of what I was qualified to comment on. I also said a quiet thank-you to colleagues who years ago had explained how to conduct myself in court
It’s not easy being grilled on the witness stand. I doubt there are many accountants who wouldn’t find the experience nerve-racking. Most defense lawyers are clever and have far greater experience in a courtroom than a typical expert witness.
It’s uncommon for an accountant to be called to testify in a civil matter, as so many are resolved outside of court. Criminal cases often require expert testimony, but how many criminal trials does the average accountant deal with during a career?
Nonetheless, having to testify in court does occur; in my career, I’ve been called to the stand about 10 times. During those experiences I have learned a few things, in addition to my strong caveat that you should never stray from your expertise.
A Senior Moment
A critical point involves the first few questions. Most lawyers like to start with gentle, easy questions, usually concerning the expert’s background and qualifications. These might seem benign and nonthreatening, but they can have a deadly sting. Some years ago, a senior forensic accountant was testifying in a complex dispute. The plaintiff, who claimed his two partners had colluded to defraud their business of several million dollars over a seven-year period, had retained him. During cross-examination, opposing counsel began by lobbing a series of soft questions at the expert, done in a way that encouraged the man, who held himself in high regard, to almost brag about his qualifications. At one point the expert spoke about his adherence to the highest professional and ethical standards. “What do you think of senior forensic accountants who do little actual work on a file and then claim to have been actively involved in all stages?” counsel then asked.
It was a question the expert had not anticipated. It was also one that struck a sensitive nerve. The expert had been overloaded when he accepted the file and delegated most of the work to his juniors. True to his personality, however, he took credit for their efforts and gave the impression he had done the bulk of the work.
Caught off guard by counsel’s insightful probe, the expert stammered out an unconvincing reply. By the time counsel finished with him, the expert’s credibility was in tatters. More seriously, the plaintiff’s case was weakened, and a subsequent settlement came in at a fraction of what the expert’s client had anticipated.
Lesson learned: prior to testifying, check if there are areas where you are vulnerable. If so, inform counsel (or the Crown if it’s a criminal matter) and know how to answer those questions. In addition, understand there are no easy moments in a cross-examination. Don’t assume that a few seemingly soft probes have no real importance other than a sort of pro forma beginning.
Every question matters, as do all answers. An expert witness must be alert and on guard at all times during testimony, no matter how innocuous a question might seem.
Staying composed is not always easy. But it’s a standard to aim for. It’s especially difficult when a lawyer engages in high theatrics in an attempt to rattle you.
A classic example involved a senior Canadian forensic accountant during a fraud trial in Kingston, Jamaica, that dealt with the collapse of several interrelated financial institutions. The lead defense counsel, defending a civil action launched by the Jamaican government, had unsuccessfully challenged the accountant’s qualifications as an expert witness. However, he threw a hissy fit when the Canadian drank water while in the witness box.
“It was a really hot day and there was no air conditioning in the low-ceilinged courtroom — it was so bad I almost fainted — so I took a sip from a bottle of water I’d taken up with me,” the accountant says. “There was an absolute hush in the courtroom. I didn’t know that in a Jamaican court you have to ask for permission to drink water. Well [counsel] got up and he’s got these black robes on and they look like huge wings when he’s flapping them around, and he’s very agitated and can’t believe my lack of respect for the court.”
Fortunately, the presiding justice felt no deliberate offense had occurred. But counsel’s grandstanding gave the witness notice that he might be in for a bumpy ride during his testimony.
If on the receiving end of an egregious and unanticipated attack or question for which you don’t know the answer, I believe there’s only one intelligent tactic: tell the truth. And do so in a calm, clear manner. Even if the question is embarrassing, something you should have known the answer to, it only gets worse if you deny the reality being presented to you.
The best response is to truthfully explain why you didn’t know the answer and offer to provide the information to the court at the earliest possible time. It’s likely not going to be pleasant going forward, as counsel will probably use your lack of knowledge to challenge what else you don’t know. If that occurs, it’s critical not to become so unnerved you lose your ability to explain that you’re confident in the rest of your testimony.
The Fee Question
One area many experts fear being asked about is their fees. In Cross-Examination: The Comprehensive Guide for Experts by Steven Babitsky and James Mangraviti Jr., the authors, both U.S. trial attorneys, address this head on. “Experts should know how much they are paid [or have billed for],” they say. “Often experts honestly don’t know…because someone else handles their billing. Although this may very well be true, few jurors are likely to believe it.”
The authors warn against falling for the old trick question: how much are you being paid for your testimony here today? This is an example of why it’s so important to listen to every word in a question. The truthful, and artful, answer they suggest is: “I am not being paid for my testimony. I am being paid for my time at a rate of…”
Other trick wording, they say, is embedded in the following seemingly benign question: did you evaluate both sides of the case?
Do not respond too quickly with what you assume is a reasonable response: “Yes I did.”
That answer, they warn, could be followed by this: “What facts or data did you consider that were inconsistent with your opinion?”
The authors prefer this answer: “I reviewed all the documents and reports that were provided, conducted tests, analyzed all the data and formed the opinion I have expressed.”
Needless to say, an expert should not be an advocate, under any circumstances. It is human nature to favor the side that’s paying your bills and with whom you may have formed an intellectual or personal connection during the preparation of your evidence. But advocacy can be disastrous to your career and to your client’s case.
In 2012, an Ontario Superior Court Justice was scathingly critical of a well-known Toronto forensic accountant who had been hired as an expert witness on one side of a major shareholder dispute.
The judge said the expert’s report contained “exaggerated, inflammatory and pejorative comments,” as reported in the Globe and Mail, and that he had “no confidence in [the evidence’s] reliability.”
The judge further stated that the expert exceeded “the bounds of his expertise [and] was wrong to inject opinions on corporate governance into the reports he filed with the court.” The judge also said the forensic accountant’s assertions were “frequently based on suspicion and innuendo” or were “pure speculation.” As a result, the judge tossed out the case, which put a stop to a potential $220-million class-action lawsuit by former shareholders.
Although testifying in court can be an intimidating experience, it can also be exhilarating if it goes well. I will always remember one of Glen Davis’ best friends thanking me for my contribution to the case after I left the stand.
And I was even more satisfied when, in mid-November 2012, a Toronto jury found Kossyrine guilty of first-degree murder in a retrial. During my expert-witness testimony I had again stuck to the facts. I didn’t express any opinion or emotions about the case. But after I heard the verdict, I was pleased that my evidence might have contributed in a small way to a measure of justice for a kind man, a murder victim who seemed to have caused no one any harm.
From Uncovering Fraud: True Stories About Fraud, Fraudsters & How They Got Caught by David Malamed, edited by Paul McLaughlin. This column was first published in March 2103.