the actuary as an expert witness
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The Actuary as an Expert Witness. Norma J. Brettell, Esq. REG-40 San Diego, California March 9-10, 2000. Introduction. Actuarial testimony in automobile insurance ratemaking Written testimony Oral testimony. Why Am I Here?. Whose witness are you? Which side has the burden of proof? - PowerPoint PPT PresentationTRANSCRIPT
The Actuary as an Expert Witness
Norma J. Brettell, Esq.
REG-40
San Diego, California
March 9-10, 2000
Introduction
Actuarial testimony in automobile insurance ratemaking
Written testimony
Oral testimony
Why Am I Here?
Whose witness are you? Which side has the burden of proof?
For what purpose are you testifying? Are you the only actuarial expert? If there is another expert “on your side,”
have you reviewed that expert's testimony?
If there is an expert “on the other side,” do you know what that expert’s position is?
Evidentiary Standards
Meet your burden of proof Standards of proof generally
beyond a reasonable doubt clear and convincing evidence a preponderance of the evidence - more likely
than not substantial evidence - “reasonable support in
the evidence” AIB v. Comm’r, 415 Mass. 455, 457 (1990); Aetna v. Comm’r,
408 Mass. 363, 378 (1990); MARB v. Comm’r, 384 Mass. 333, 337 (1981)
The 3 C’s
Be Clear Use short sentences Be considerate of the stenographer
Be Confident Know your facts
Be Convincing Speak directly to the judge/hearing officer Be polite always Don’t insult the judge/hearing officer
Tell the Truth
If you don’t know, don’t guess
Even an unintentional misstatement may cost you the case
What to do if you discover you’ve made an error
Direct Examination vs. Cross Examination
Written vs. oral (in Massachusetts)
Non-leading (open-ended) questions vs. leading questions
Different goals
Direct Examination (1)
Listen to the question!
Your lawyer should let YOU tell the story - choose your language and terminology carefully
Open-ended questions organized logically
Direct Examination (2)
Be as simple and straightforward as possible - make the complicated easy to understand
Address and overcome any weakness in your position
Cross Examination (1)
Listen to the question!
The opposing lawyer should try to limit your “wiggle room” - resist!
Cross Examination (2)
Don’t volunteer anythingDon’t argueSay all you need to say - there may not
be another questionAn offensive defense - turn your cross
into offensive against their testimony when possible and appropriate
Cross Examination (3)
It’s not over ‘til it’s over - some lawyers save strongest cross points for last want to end on a strong note witness is not as fresh witness may be thinking they’re just about
done may be able to use other points gained
throughout cross on this strongest point
Exhibits
Shown to opposing counsel and judge/hearing officer approaching the witness and judge
FoundationMarking for identificationMoving into evidence
Hypothetical Questions
Other side often will use to “sum up”
Be careful of assumptions underlying the hypothetical
Prior Testimony
“Inconsistent”
Impeachment
Common Objections in Administrative Settings (1)
Irrelevant/immaterial
No proper foundation
Leading the witness (on direct examination)
Repetitive (asked and answered)
Common Objections in Administrative Settings (2)
Misstates evidence/misquotes witness
Confusing/misleading/ambiguous
Speculative
Compound question
Common Objections in Administrative Settings (3)
Argumentative
Nonresponsive answer
Cross question is beyond the scope of direct examination
Improper impeachment
Summary
You are a witness, not a lawyer, so don’t argue the case
Remember your goals in direct and crossBe clear, confident and convincingBe truthfulBe yourself
The Actuary as an Expert Witness
Norma J. Brettell, Esq.
REG-40
San Diego, California
March 9-10, 2000