I’ve discovered some wisdom within the 1989 film, Roadhouse. In this film, Patrick Swayze’s character James Dalton accepts the job of cleaning up a bar gone bad. After surveying the scope of the assignment, he summons his coworkers for a meeting to discuss the plan. He tells them reaching the desired result is as simple as these three things:
1. Never underestimate your opponent…expect the unexpected.
2. Take it outside…never start anything in the bar.
3. Be nice!
What great advice when testifying about the facts, figures and conclusions in a forensic accounting engagement!
In the context of litigation, accountants tend to underestimate their opponents for two reasons: (1) they are overly confident in their own case and (2) they do not view their opponents in the proper context. It’s a wonderful thing to be completely confident in one’s abilities and conclusions. However, when this occurs, a migration to “overly” confident occurs almost naturally. When preparing for testimony, it is critical for one to explore the potential weaknesses in his or her case. One should know each weakness in his or her case, and know why his or her ultimate conclusion negates this weakness. If one never considers the potential weaknesses, the “unexpected” questions will be met with an apparent lack of confidence as one ponders a response.
One can also expect the unexpected questions by understanding who asks and considers the questions. Accountants have a tendency to prepare for questions as if they are being asked by another accountant. This is a mistake! In the courtroom, the questions are asked by and considered by non-accountants. Why does this matter? If there is a simple, non-technical line of questioning that appears to compromise the accountant’s conclusions, the jury will likely be inclined to side against the accountant. So, the accountant should always consider how a non-accountant will perceive his or her analysis.
Now, let’s explore the next tip about “taking it outside.” The point of this tip in the movie was to reinforce comfort zones. The bar is an uncomfortable place for fighting…especially for the guests! It’s also no picnic for the bouncers. With too many people around, bouncers will lose focus, their movement may be limited, and weapons (such as chairs and bottles) abound. With testifying, it is critical that the accountant not leave their comfort zone, which is his or her field of expertise.
During cross examination, attorneys will try to take accountants outside their realm of expertise. The objective is simple: if the attorney can get the accountant to offer an opinion that is proven wrong, or that the accountant is not qualified to make, the attorney wins. The jury is left with the idea that the accountant will say anything. I testified in a fraud case involving the theft of linens. My analysis of how much linen was consumed by the operation relied on a factor for the number of times the linen could go through the wash cycle and still be used. That factor was provided by another expert. The smallest change in the factor, in either direction, caused a major change in the amount of damages. During my testimony, the attorney tried with great persistence for me to offer an opinion on the factor. However, each time I made it clear that any determination would be outside of my field of expertise. My client ultimately received a favorable settlement in the case.
The final tip is simple, but critically important: Just be nice. Attorneys know all to well that when it comes to expert testimony, jurors side with those experts that they like. One way to be liked is to explain concepts in the jurors’ language. They will like and appreciate someone that offers understandable concepts, as opposed to confusion-filled jargon. Also, accountants should never “trash” the opposing accountant. Instead, seek out ways to compliment the opposing accountant and find common ground. The beauty of this approach is that it works no matter what type of demeanor the opposing accountant displays. For instance, if the opposing accountant is arrogant and not shy with insults, the jury will naturally dislike him. When the next accountant takes the high road, it will be an easy choice for the jury to decide which expert they preferred. But what if the opposing accountant is also nice? The theory works here too. If one compliments the opposing accountant and makes it clear that both accountants agree on most issues, the jury can then end up liking both of them. At that point, making the few limited areas of disagreement clear and concise will win the jury.
So, remember Swayze’s three simple rules. I haven’t found a practical use for the “pain don’t hurt” line in the movie, but check back soon.