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A case of the “I told you so’s” (you were right Mom!)

August 17th, 2011 by Rebekah Smith

In June, I attended NACVA’s National Conference, where on Saturday, NACVA ran its Litigation Bootcamp for Financial Experts program which culminates in a live Jury Trial. The participants are afforded the opportunity to watch both the expert testimony and then the jury’s live deliberation.

Interestingly the observations I take away from these mock trials are frankly lessons I think my mother tried to teach me as I grew up. I am certain that each of my jury deliberation observations are actual statements taught at some point during my childhood.

  1. It’s not about you…I can recall one of these mock trials where the experts focused almost exclusively on discount rates.  They discussed, charted, analogized, dissected each other’s rate, and expounded on the reasons why their rate was superior, ad nausea.  After the trial, when faced with a result that neither had expected and having never once heard the jury discuss the discount rate, they asked the jury “But what about the discount rate?!?!”  The jury said they didn’t care about the discount rate (can you believe it?) and that frankly the jurors were BORED with the lengthy discussion. Thinking about your testimony from a jury perspective is incredibly important. As experts who are very scientifically minded and enjoy the technical aspects of a valuation or calculation, our propensity is to focus on technical battles.  Sometimes, you have to step back and ask yourself, what does the jury need to hear about in order to make an informed decision?
  2. Mind your manners…My mother always admonished me to “mind my manners” (which was usually followed up by threat to send me to Manners School –  does that really exist?) In this day of tweeting, texting, Facebooking, blogging and email, many of the typical manners have fallen by the wayside. People forget how the use of “Mr.”, “Mrs.”, “please” and “thank you” can go a long way in demonstrating respect not only for all the parties involved but the judicial process itself. You may not think that anyone notices when you call your client Mr. Jones but then call the opposing expert “Sally” but juries pick up on those nuances and will make judgments about an expert based on those subtleties. Juries will notice if an expert says “thank you” during direct but never during cross exam.
  3. Be creative…In my opinion the expert whose side did “prevail” in the mock trial probably did not have the fundamentally sounder calculation. But do you know what he did have? Panache!  Okay well not panache exactly (I mean really, what accountant does have panache?) but he had charts! He had wisely converted his testimony and calculations into visual aids.  He had a power point presentations and a graph to emphasize a critical assumption in his calculations.  During the jury deliberations it was apparent that the charts had left an impression on the jury and had aided in their understanding of a complex topic. Let’s face it, numbers are boring (unless you are a statistician or an accountant) and most people don’t like numbers so you as an expert have to do something to make it educational and entertaining
  4. It’s not what you say; it’s how you say it…During the mock trial, the expert whose side did not prevail completely changed his demeanor on cross exam. He sat back in his chair, lowered his voice, and stopped making eye contact with the jury. Astonishingly, during deliberations the jury discussed his demeanor change on cross exam.  One juror said it made him feel like he was hiding something. A second juror observed that he seemed much more “helpful” on direct than on cross. That demeanor change really decreased the juries trust and confidence in his opinions and ultimately weighed heavily in their determination of credibility.  So even the nicest compliment, “Boy you look great,” said in a sarcastic tone, can take on totally different meaning.

So thanks to my mom for teaching me to be creative, as long as I remember that it’s not all about me and that I should mind my manners while watching what I say!

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