Page 18 - Family Law Services

Deposition

CPAs retained as expert witnesses are often required to give depositions. Depositions of the expert under
oath may be taken by opposing counsel during either the discovery phase of the engagement or before or
after the trial begins. At a deposition, the rules of the court apply, and a court reporter transcribes the
proceedings, even though the trier of fact (regardless of whether that is a judge or jury) is typically not
involved in these proceedings. The opposing attorney uses depositions to discover as much as possible
about the expert’s work and opinions on the issues of the case. The testimony given at depositions may
be used at trial. As such, it is advisable for the CPA to consider preparing and advising the attorney of
the nature of the opinions and work product to be used when giving testimony.

The goals of the deposing attorney are to analyze the strengths and weaknesses of the expert’s
knowledge of the facts, opinions, assumptions, and other basis for those opinions. If the opposing coun-
sel can find errors or inconsistencies in the expert’s testimony during deposition, that testimony may be
used at trial to discredit the witness and possibly argue that the expert’s entire testimony should be dis-
regarded.

A number of questions asked at depositions can be answered with a simple yes or no. However, most
questions at depositions require narrative answers. The expert should not provide an answer that is be-
yond the scope of what was asked in the question. The expert should always tell the truth.

Depending on the state, at the conclusion of the deposition, the attorney or expert may waive the reading
and signing of the deposition transcript; however, it is recommended that the expert always review the
transcript for errors, inconsistencies, and ambiguities. The expert should advise the court reporter of
transcription errors within the prescribed time frame and in the required form so the corrections are part
of the deposition record.

The CPA is seldom, if ever, permitted to ask questions at a deposition.

However, the CPA may be asked to further assist the attorney with the deposition of the opposing CPA,
financial expert, or testifying witnesses. This assistance may include drafting questions, attending that
expert’s deposition, or both.

Testifying Expert

In the event that a settlement is not reached prior to trial, the CPA expert may be expected to testify to
findings or opinions developed during the course of the dissolution proceeding. Preparing for trial testi-
mony is an important facet of the CPA’s role in litigation support services because the case may be won
or lost based on the testimony of those who testify. Unlike some other civil litigation matters, marital
dissolutions are, in the majority of jurisdictions, tried before a judge rather than a jury (that is, one trier
of fact who decides the outcome of the matter). It is the role of the CPA expert to assist the judge in un-
derstanding the financial and technical issues in the case.

It is not unusual for the CPA expert’s work product and report based on his or her findings to be sub-
stantial and comprise technical calculations, terminology, charts, graphs, exhibits, and schedules. If
these schedules and reports will be used during trial, the CPA should, to the extent possible, produce ex-
hibits that are simple and easily understood. The use of colors in courtroom exhibits can accentuate dif-
ferences in data and emphasize important facts for the judge or jury. Although the CPA expert is famil-
iar with the contents of the report, the judge or jury can become overwhelmed by the quantity and com-
plexity of the information and the associated detail. In such circumstances, the CPA expert may choose

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