One of the great challenges in an expert witness project is to develop a theoretically sound expert opinion that embraces all of the relevant facts, adopts reasonable assumptions, and applies sound rationale to derive a supportable conclusion.
In order to do this, the forensic consultant must aggressively develop and repeatedly challenge the underlying facts and theoretical concepts of the case during the analysis phase.
Advancing a substantive opinion in litigation requires a blending of both technical and legal theory.
On the technical side, the challenge is to develop an expert opinion that is intellectually sound and will withstand cross-examination.
The approach I have developed is to use the legal metric for analysis – the “irac” formula – and adapt it to other technical subjects.
The “IRAC” acronym stands for: Issue, Rule, Analysis / application, and Conclusion.
To apply the “IRAC” formula, one first identifies an issue of law related to the particular facts of the situation. What is the issue or question presented?
“R” stands for rule. Find the rule applicable to the particular facts. For example, in a simple traffic situation, the rule might be something as basic as “failure to stop at a stop sign is a violation of law.”
“A” is the analysis and application of the relevant facts to the rule. In the traffic example, the analysis might be simply analyzing the facts of the situation – breezing through the stop sign, for example – and determining whether those facts, when applied to the rule, lead one to the….
Conclusion, or the determiniation of whether the rule was broken.
The “irac” formula is a method of organizing legal rationale and making it analytical.
It is a pattern of step-by-step analysis used by lawyers to analyze every aspect of a litigation matter, including the analyses of foresic experts.
Using the construct of the “irac” formula, I developed the “F.A.R.C.” methodology for forensic analysis:
Facts,
Assumptions,
Rationale and
Conclusion.
Competent expert analysis is a blending of underlying facts, reasonable assumptions, substantive theory, and legal theory.
The facts and assumptions must be interwoven with substantive and legal rationale to determine a conclusion.
The proper combination of these components will yield a supportable expert analysis, defensible in a court of law.
Let me walk you through the FARC metodology.
“F” represents facts. They are historical or present truths – something that has occurred or is known to be true.
At each step of a forensic analysis, identify the known facts on which this step is based.
“A” is for assumptions. Assumptions are suppositions, either the supposing of a hypothtical fact to be true or supposing a connection between a fact and a substantive theory.
Assumptions are used in place of known facts and they are also used to connect facts to theories.
Understand that assumptions are never perfect and they are a key area of the opposing lawyer’s challenge to a forensic analysis.
Consequently, assumptions must be imminently reasonable for a forensic analysis to be defensible in litigation.
“R” stands for rationale, the process of applying reliable substantive principles and methods to facts and assumptions to derive supportable conclusions.
Rationale is the fundamental reason or rational basis for connecting the facts and assumptions to the conclusions.
While lawyers challenge every step of the forensic analysis, they particularly challenge the rational connection of the facts and assumptions to the conclusions.
Consequently, it is helpful to have several layers of rationale connecting the events – the relevant facts and assumptions – to the con-clusions you derive.
If you use this analytic approach in every step of your forensic analysis, your resulting conclusions will be the most defensible possible.
Applying the farc methodology will enable you to objectively evaluate the logic of each step of your analysis.
Recognizing that your forensic conclusion is being advanced in litigation, the opposition will make an argumentative attack on every step of the analysis.
“The facts are wrong; the assumptions are not reasonable; the rationale connecting the facts to the conclusions is not sound; and the conclusion does not logically follow the rationale.”
This is the reality of litigation, but when you have broken down your analysis into the components of the farc methodology, it will be much more defensible.
Understand that broad-based rationale results in very defensible conclusions.
It’s easy for a conclusion to be attacked if it has only line of rationale, for example one study, one method, or one observation.
Always try to have several layers of rationale for each conclusion that you draw.
I adapted the IRAC method of legal analysis to my field, finance, and I have found that the adaptation works for most areas of forensic analysis.
Among other benefits, it forces the forensic expert to think like a lawyer,.
After all, it is a lawyer who will be cross-examining the expert witness and, in some form, the lawyer will be using the irac formula to try to undermine the expert’s opinion.
I devote an entire chapter of my book to “developing the expert opinion” – I believe it is the most important aspect of a forensic consulting practice.
