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Back to Basics: The Outline For Direct Testimony
A Useful Tool in Litigation Services


Even the most experienced practitioners sometimes need to reflect on the basics of expert testimony, such as preparing an outline for direct testimony. It is usually helpful if both the testifier and the attorney prepare a detailed outline of the expert's expected direct testimony. The purpose of an outline is to organize intended testimony, not to prepare a script for delivery.

The attorney may wish to develop the outline. However, an experienced CPA expert who is familiar with the facts of the case will have no trouble preparing an initial draft and, by doing so, may help the attorney to structure the expert's part of the trial. By arranging his or her testimony in a logical, detailed, and understandable manner, the expert will better prepare for presentation at the trial or hearing. The expert's initial out- line will also help the attorney to better understand the expert's analysis, and thus help the attorney determine the key points to emphasize in direct testimony.

For discovery purposes and other reasons, some attorneys may prefer to talk through the outline rather than have it drafted. Rarely, if ever should an expert bring the outline to the stand to refer to during testimony. If the expert does this, the outline is probably discoverable on the stand. Obviously, this tool is a matter for careful prior communication between the CPA expert and the attorney. The expert may be attacked on cross- examination for planning testimony with the attorney who takes his or her direct examination. Such planning, however, is wholly consistent with an expert's proper preparation to form his or her conclusions and take responsibility for his or her testimony.

An outline for direct testimony should be logically structured, concise, and simple, but thorough in explanation. The outline should be appropriate to the given time constraints and the knowledge of the trier of fact or other audience. The outline often should repeat the expert's findings. One common approach is to have the expert first provide an overview of his or her opinions and analyses, then explain the analyses and conclusions in detail, and, finally, again summarize the opinions and analyses for the audience- that is, tell them what you're going to say, say it, and then tell them what you said.

The outline might have the following structure:

1. QUALIFICATIONS
The expert identifies himself or herself and outlines his or her qualifications to do the work and to testify: his or her skills, knowledge, education, experience, and training. The expert should reveal prior experience in the same business, industry, or type of asset as the subject of the assignment.

2. THE ASSIGNMENT
The testimony should describe what the expert was asked to do, briefly, and in simple, not highly technical terms. At this relatively early stage of testimony, the expert and the attorney may decide to state the basic premises and procedures used and explain how they apply to the assignment and venue.

3. INTRODUCTION OF OPINIONS
The expert concisely introduces his or her opinions. This early summary statement helps to pique the interest of the trier of fact or other audience.

4. DETAILED APPROACH TO THE ASSIGNMENT
The expert provides a detailed description of how he or she arrived at his or her opinions. The expert should consider discussing all the steps followed and all the important information used to reach the conclusions. Typically, the elements treated as significant in a written report will merit consideration for oral testimony. However, the testifier should also keep the presentation clear and simple

With experience, experts learn that, before they take the stand, certain parts of planned testimony can become irrelevant or time constraints require an abbreviated direct testimony. For these reasons, some CPA experts recommend also preparing an abbreviated outline.

5. SUMMARY OF OPTIONS
Once again, the testifier states his or her conclusions and reminds the audience of key facts and procedures performed.

If the outline is to serve its intended purpose, the attorney and the expert witness should always spend sufficient time discussing the completed outline. Properly used, the outline for direct testimony will help the attorney to understand all the elements of the expert's work and conclusions, the expert to polish his or her presentation, and both attorney and expert to determine how to structure the expert's direct testimony. Preparation in litigation should almost always include this useful tool.


 
 
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