Kicking an Opposing Forensic Accounting Expert Off the Witness Stand

The Forensic Accounting Deskbook by Miles Mason, Sr. JD, CPA, published by the ABA Family Law Section

How to be successful challenging an expert witness’s qualifications. How does one challenge an expert witness for lack of qualifications as opposed to Daubert challenges? What are minimum qualifications to be admitted?

Miles Mason, Sr. JD, CPA is the author of The Forensic Accounting Deskbook: A Practical Guide to Financial Investigation and Analysis for Family Lawyers, Second Edition, published by the ABA Family Law Section.  This updated edition of one the ABA’s most popular resources explains the practice of forensic accounting and business valuation and how to apply it in family law cases. It provides a practice-focused introduction to the core financial concepts in divorce, such as asset identification, classification, and valuation, income determination, expenses, and more.

See Mason’s complete list of the 10 Big Divorce Financial Mistakes.

VIDEO TRANSCRIPT:

Tracy Coenen:             Have you been successful in the past at challenging an expert’s qualifications? And how did you go about doing that?

Miles Mason:              I have partially. There are two challenges you can bring: the Daubert challenge, which is underneath the rule, but you can also challenge an expert’s ability to testify in general because they’re not an expert. Okay. In Daubert, you’re challenging generally methodology in a particular application or lack of methodology. Okay. I know that’s difficult, but for here, for purposes of answering your question, what we’ve been able to show at times that the particular expert witness, and in the case I’m thinking about, there was a CPA, but what the CPA wanted to testify was outside of their expertise. The CPA did not have training in that particular area, did not have any education, had never attended a seminar on that particular topic, and in this particular topic was tangential to a business valuation, and the CPA had no background whatsoever in business valuation other than doing tax returns and general accounting. So that was a rather simple challenge in that particular case.

Tracy Coenen:             So, obviously there may have been a way in this case, for the CPA to overcome that challenge?

Miles Mason:              Well, if the CPA had been to some seminars, been to some conferences, read some material. I mean in this particular case, the CPA had not even read an article, a single article, much less other CPAs who practice in the area that are full time forensic accountants have written articles on the topic. In general, courts don’t require an expert witness to have written a book on the topic in order to testify about it because that’s the brink of insanity. But at the same time, they’ve got to know something about it. Reading a book about it is very helpful, on the topic of what they’re supposed to be talking about. And in this particular case where the expert was excluded, this particular proposed expert had no idea what they were talking about.

Thank you to Tracy Coenen, CPA, CFF for inviting me to join her in this video series. Tracy is a nationally recognized forensic accountant practicing in Milwaukee and Chicago.