Financial Expert Witness Communication: A Practical Guide to Reporting and Testimony

CHAPTER 17 Financial Expert Witness Direct Examination

DIRECT EXAMINATION

Direct examination is like an orchestra (i.e., the financial expert witness) conducted by a talented conductor (i.e., the client’s attorney). The questions posed by the conductor allow the financial expert witness to play musical harmony through testimony. During direct examination, the client’s legal counsel has an opportunity to solicit answers from the financial expert witness to questions designed to present the expert’s opinions as reliable for use by the trier of fact. However, the client’s attorney may not ask leading questions in the direct examination.

To be leading, a question must propose the desired answer to the witness. For example, the question: “You did calculate damages using mitigation, right?” is leading. A question on the same topic that is not leading might be: “Did you use mitigation in your damages calculation?” Leading questions are used by opposing legal counsel to limit the financial expert witness’s testimony, hopefully to “yes” or “no” responses, and prevent any opportunity for explanation. Leading questions are not permitted for direct examination because they create the risk that the financial expert witness may be improperly coached by the examining attorney on what to say.

The principal task of a conductor is not to put himself in evidence but to disappear behind his functions ...