The Actuary as an Expert Witness

1. The Actuary as an Expert Witness Norma J. Brettell, Esq. REG-40 San Diego, California March 9-10, 2000

2. Introduction • Actuarial testimony in automobile insurance ratemaking • Written testimony • Oral testimony

3. 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?

4. 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)

5. 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

6. 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

7. Direct Examination vs. Cross Examination • Written vs. oral (in Massachusetts) • Non-leading (open-ended) questions vs. leading questions • Different goals

8. 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

9. Direct Examination (2) • Be as simple and straightforward as possible - make the complicated easy to understand • Address and overcome any weakness in your position

10. Cross Examination (1) • Listen to the question! • The opposing lawyer should try to limit your “wiggle room” - resist!

11. Cross Examination (2) • Don’t volunteer anything • Don’t argue • Say all you need to say - there may not be another question • An offensive defense - turn your cross into offensive against their testimony when possible and appropriate

12. 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

13. Exhibits • Shown to opposing counsel and judge/hearing officer • approaching the witness and judge • Foundation • Marking for identification • Moving into evidence

14. Hypothetical Questions • Other side often will use to “sum up” • Be careful of assumptions underlying the hypothetical

15. Prior Testimony • “Inconsistent” • Impeachment

16. Common Objections in Administrative Settings (1) • Irrelevant/immaterial • No proper foundation • Leading the witness (on direct examination) • Repetitive (asked and answered)

17. Common Objections in Administrative Settings (2) • Misstates evidence/misquotes witness • Confusing/misleading/ambiguous • Speculative • Compound question

18. Common Objections in Administrative Settings (3) • Argumentative • Nonresponsive answer • Cross question is beyond the scope of direct examination • Improper impeachment

19. Summary • You are a witness, not a lawyer, so don’t argue the case • Remember your goals in direct and cross • Be clear, confident and convincing • Be truthful • Be yourself

20. The Actuary as an Expert Witness Norma J. Brettell, Esq. REG-40 San Diego, California March 9-10, 2000