Trial Strategy Experts Account for Complexity
By Mark Wolfe
The comedy of Lucille Ball might seem like a surreal fantasy when it comes to describing accounting fraud, but when you’re trying to devise a simple way of explaining a case, inspiration can come from anywhere.
As experts in litigation strategy and graphics, The Focal Point helps both lawyers and expert witnesses sharpen their thinking and connect their ideas. The result is a refined sense of presenting information in a simple manner to create a more persuasive argument.
Although The Focal Point has been involved in a handful of criminal cases dealing with accounting crimes, the Oakland, California-based company has contributed its strategic and graphic services to numerous cases where accounting information was a key element of the trial.
“We’ve been involved in hundreds of cases, criminal and civil, where accounting and the need to explain complex accounting issues played important roles,” said G. Chris Ritter, case manager at The Focal Point and author of the book Creating Winning Trial Strategies and Graphics. “Accountants and their testimony arise in virtually every commercial case involving damages.”
Barry Litt, founder of Litt & Associates, a law firm based in Los Angeles, has used Ritter’s services to streamline and simplify complex issues for trials. But simple can still be sophisticated. “The idea is not to dumb something down. The idea is to explain basic points in a way that people will understand them,” Litt said. “The witness or expert can then elaborate, but a juror will have graphics that give them a basic roadmap of what is being presented.”
The firm grabbed headlines by providing strategic counsel and graphic services to the United States Securities and Exchange Commission. Commission lawyers worked with The Focal Point for more than six months on a case that resulted in a June conviction in Chicago against James Koenig, the chief financial officer of Waste Management Inc., who falsified accounts in a fraud that totaled US$1.7 billion over a five-year period.
For financial professionals, Ritter said the expertise his firm brings to the industry is something that should be embraced rather than feared.
“All experts, not just accountants, should welcome this assistance,” he noted. “I would think there could be few things more frustrating than having come to conclusions, and then not being able to present the material effectively to a jury or a judge with limited accounting experience. That is our job, and I think most professionals appreciate the benefit of what we offer.”
Ritter cited a case in which a financial services company had committed accounting fraud, and tried to hide their crimes from outside auditors. Ritter drew inspiration from an old episode of I Love Lucy, in which Lucy and Ethel have to deal with the increasing speed of a conveyor belt at a chocolate factory. “Eventually complete bedlam breaks loose,” he said. “We used this analogy in the case, and the jury clearly related to it.”
Although the firm has dealt with clients across the United States, Ritter sees no barriers to working for people in Canada. “The United States and Canada share a common legal heritage. I suspect that most accounting reporting requirements are similar,” he said. “There is always the need to simplify complex issues. The techniques we use will work regardless of the jurisdiction.”
Ritter uses a five-step process to help clients gather and present their information in a clear, succinct way. The first step is to develop an understanding of what the case is really about. Getting to the crux of the issue allows clients to decide what material is the most important and relevant to the judge or jurors. The information is then simplified so just the critical facts are highlighted.
A process Ritter calls “mental mining” is used to investigate shared experiences the jurors have that will allow them to better grasp material they will be hearing for the first time. Graphics are then created so the average person can understand what they are seeing. The process is finalized with decisions about the best way to present the information in terms of format and technology.
“Whether you’re the attorney or the subject of the litigation, you live with these things so closely, and the details almost become second nature,” said John Phillips, a partner at the San Francisco office of the Paul, Hastings, Janofsky & Walker law firm.
“Because of that you’re often compromised in your ability to describe the themes and concepts involved, and explain how the various people and information that are critical to proving your point fit together,” he noted.
The Los Angeles-based firm has used The Focal Point for a variety of cases over the past 15 years, including commercial litigation, intellectual property and product liability matters.
“It’s critical to have the capability to objectively harness all that information and present it in a compelling way, showing how dollar figures can tie into liability issues, so you can get the jurors to track with you and follow along,” Phillips added.
And in an age of information glut, there seem to be few drawbacks to investing the time and money in keeping things simple. “I don’t know that there are any real disadvantages,” Ritter said. “Often our services get used even if the person never actually has us create a physical graphic. What is often more important...is the process of thinking graphically as a way to clarify your thoughts and ultimate presentation.”
The Focal Point has provided services for both the prosecution and defence, and Ritter noted that the two sides are ultimately pursuing the same goals by presenting testimony that is both accurate and persuasive.
“Experts, particularly accountants, need to understand that most jurors are never going to understand all of the intricacies,” Ritter said. “The most effective witness is one who persuades through the process of teaching and simplifying.”
This article appeared in The Bottom Line on October 31, 2006.
Appeared in The Bottom Line
October 31, 2006