You might think it will bring specialist knowledge, perhaps specialist skills, and in some cases gravitas or standing. These are all key parts of the good expert’s role, but you should also include clarity of explanation, greater experience in a particular field, and a fresh mind and outlook. While the first group of attributes should be provided by any reputable professional offering their services, the second set is not as widespread. You need someone with particular specialist skills.
Knowledge
Criminal cases are a particularly good example. They are almost always complicated and problematical . As the legal expert, you can expect to know what the offence is, but how can you expect to recognise it in practice? How do you differentiate between that and some questionable but legal transaction? The simple answer is that your cannot, but you should “know a man who can”.

Take a simple theft case. A couple runs a bar for a working man’s club. It makes a profit and everyone is happy. One day the accountant points out to the committee that it is not as profitable as others that he sees, and after all, nightly taking of around £100 are not much. Mr Chairman is amazed. He spent £40 there last night and there were several other parties, so £100 is clearly too little. Without any hesitation, the couple have been arrested on charges of theft.

The couple claim that they have no idea how much is taken a night. They just ring the money through the till, and bank it twice a week, after paying cash bills. How can you, the police, or they, prove anything? Well, probably you can not, but a good forensic accountant might. There are techniques for identifying the sales from the amount of stock purchased. Clubs fall into types, and we can look at patterns and identify problems. We can also comment on those irritating cash bills. And how much did they pay the relief barmaid, the cleaner and the man selling those special offer crisps?

The big thing to remember is that every business has its own way of operating. Being inefficient, or having poor records, or people mis-remembering how much they spent is not a crime, but then again it might hide a crime. Mindset The other thing that an experienced forensic accountant can bring to the case is knowing where to look. During disclosure you can only ask for what you think of. The good accountant will bring his experience to the question, and suggest other useful avenues and ideas. In this case, perhaps for a sample of nights, looking at the CCTV footage and counting the number of drinks on view; this can suggest the nightly takings. Perhaps the audit working papers might show areas that the auditors staff have considered. The till rolls will clearly be a crucial part of the evidence, but can you understand them, and what are the “Z totals” they show? In the bar case the number of drinks being sold seems to tie up to the takings on about a quarter of the nights. On others the till rolls are not summarised. The audit records show that the husband is the only person who totals the till rolls and banks the cash, and a few quick questions highlights that when he is away, a temporary barmaid is employed. We were able to show that the nights that the takings were down were the nights he had off, and temporary staff were employed.

Confronted with the evidence it transpired that the temporary barmaid was pocketing half of all the cash sales she took. Timing The other question with experts is when to employ them. In the example case the problem would have been resolved far quicker, had we been able to observe the bar for a couple of days before alerting everyone to the fact that the committee knew there was a problem. As accountants, we are used to observing the systems and drawing conclusions, and that would have found the problem quicker, and more robustly. I would suggest that, in most cases, experts are called too late to do a full job. Alert them early, even is it is only to put them on notice and ask for their help in initial planing the case. You will get more for your money that way. Clarity Having established what you think is the true situation, the next big problem is explaining it to a court who are, to be frank, not experienced in the running of men’s working clubs for example.

The best technical report in the world from a forensic accountant is worthless, unless it carries the court with it. Clarity of explanation, attention to detail, and following the minutia of detail are essential. Most lawyers are experts with words, but fewer accountants are; you need to ensure that your expert has been properly trained in report writing. The constraints of a legal report are such that many professionals, not just accountants, produce reports that the other side can rip to shreds. You should ask your chosen expert how he was trained, and what is his experience.

Experience

All professions now require Continued Professional Development, but forensic work is a small subset of work for most experts. There are few things more annoying than finding out in court that your expert would have been correct, but twelve months ago – things do change! You need to have an expert who has a mechanism for keeping up to date and this can be very difficult without membership of a suitable organisation.

Not only are all these factors essential to winning the case, but they are essential to you enjoying your job. There are few things worse than spending hours with the expert making sure that his report will be allowed in court. This happens all to frequently, especially if you use the business’s accountants who may not have forensic experience. Issues of good practice also arise.

The key to stress free and successful use of any expert, and particularly forensic accountants, is to use experts who are also experts in that area. They can add immensely to the case, without adding to your work load. Finding such an expert is therefore a great relief. The best way is experience. If they did a good job last time, they are likely to do so this time. But people move on, and cases arise in new areas, so new experts are always needed.

Membership of one of the large expert witness bodies is a help, and references from other solicitors can be useful. Other ways are to use experts from their profession’s specialist associations. Forensic accountants might be a member of the Institute of Chartered Accountants in England and Wales (ICAEW) special interest group in Litigation Support. In addition agricultural engineers have a similar grouping and so do several other professions.

Conclusion

When dealing with a specialist area, especially crime, use a specialist. Use their knowledge, experience and specialist mindset, but insist on clarity. Find someone who has the time to help you make the most of the case, you will only get the one chance to make the most of it. Do not be afraid to be demanding and involve your expert in the heart of the case.

If you know a good expert use him, but if you are looking around start with someone who can demonstrate an interest in the work and has the backup. Within a profession try the Special Interest groups, or at least get some references.

Tim Vogel
Tim is a committee member of the ICAEW Litigation support specialist interest group. Timvogel@the-chamber-of-experts.co.uk