Use of Administrative Assistants in Expert Witness Work – Rule 703, Dura Automotive, and Independence
This is an interesting rule, which came up recently in a few cases:
An expert witness is permitted to use assistants in formulating his expert opinion, and normally they need not themselves testify; the opposing party can depose them. This is to make sure they performed their tasks competently, and the expert witness can be asked at his deposition whether he supervised them carefully and whether his relying on their assistance was standard practice in his field. Fed. Rules Evid. Rule 703, 28 U.S.C.A.
The analysis becomes more complicated if the assistants aren’t merely gofers or data gatherers but exercise professional judgment that is beyond the expert’s knowledge.
Dura Automotive Systems of Indiana, Inc. v. CTS Corp., United States Court of Appeals, Seventh Circuit, April 4, 2002, 285 F.3d 609
As a CPA, CVA, CFE, Esq. who runs a solo practice but competes with Big 4 forensic firms with 10+ staff on some engagements, I use assistants daily. Here’s how to do it so your report survives Sargon/Daubert challenges.
The Rule – Rule 703 and Dura Automotive Standard
Rule 703 says: Experts can base opinion on facts or data that experts in field would reasonably rely on, even if data itself not admissible, if probative value substantially outweighs prejudicial effect.
Dura Automotive (Judge Posner, 7th Circuit 2002) clarifies:
- Expert can use assistants for “gofer” work – data gathering, typing, number crunching, pivot tables
- Assistants need not testify if expert supervised and can explain work
- Opposing party CAN depose assistants to test competence
- BUT if assistants exercise professional judgment beyond expert’s knowledge, then assistants must be qualified experts themselves and may need to testify
Example of OK assistant work (Posner): CPA expert has assistant pull 3 years bank statements, enter into Excel, create pivot table summarizing transfers to Amex. CPA supervises, checks totals tie to bank statements, and testifies to opinion based on summary.
Example of NOT OK (what gets you excluded): CPA expert has an assistant who is not CVA do business valuation using DCF, pick WACC, calculate enterprise value, and CPA just signs report. That’s assistant exercising professional judgment beyond gofer work – assistant is actually expert, must be disclosed under CCP 2034 and may need to testify. If not disclosed, report excluded.
How I Use Administrative Assistants in My Cases – My Practice
In my cases, many times I use an administrative assistant to do typing, extensive number crunching, pivot table setup, and other laborious Excel tasks. My understanding from the above is that if I supervise the work then I can take ownership of it as if I did the work.
My typical delegation:
I ALWAYS do personally (non-delegable professional judgment):
- Decide methodology: DCF vs market vs asset for valuation, lost profits method (before-and-after vs yardstick)
- Pick discount rate, growth rate, DLOM
- Determine which transactions are personal vs business – requires reading operating agreement and understanding business purpose
- Calculate final damages number
- Write opinion paragraphs in report
- Prepare for deposition – I must be able to explain every number
I DELEGATE to assistant (with supervision):
- Typing report from my handwritten draft
- OCR bank statements and entering into Excel – but I verify totals tie
- Pivot table setup – I hand-write what pivot should show: “Pivot by payee, sum amount, filter >$500”
- Creating large version of chart/pictorial – I hand-write table sketch, assistant creates in PowerPoint or Excel
- Bates stamping and organizing exhibits
- Formatting report, table of contents
I, like larger forensic and expert witness firms, don’t have the expertise or time to develop complicated graphics. It wouldn’t make sense to pay me $250-$550/hr to develop a table. I hand-write the table, and give it to FedEx/Kinko’s or my staff, who will create a large version of a chart, a pictorial, or other ‘end-product’.
Big 4 comparison: Big 4 partner at $800/hr has associate at $300/hr do number crunching and senior associate at $400/hr do DCF. Same principle – partner supervises and takes ownership. My solo practice does same but with lower cost – client pays $250/hr for my judgment, $50/hr for assistant gofer work, not $800/hr for everything.
Independence Issue – When Using Party’s Relative Gets Chart Excluded
In a recent case, there was an issue when I asked a party’s relative to create a graph – it wasn’t admitted into evidence in a state case, because of an independence issue. Even though I created the ideas in the chart, it was seen as biased or susceptible to such. Fortunately, the related testimony was accepted, and many other charts were as well.
What happened:
I had plaintiff’s daughter (who was bookkeeper) create graph showing revenue decline after defendant took over. I designed graph – X axis months, Y axis revenue, data from POS. Daughter created in Excel. Opposing counsel objected: “Chart prepared by interested party, not independent.”
Judge sustained under Evidence Code 801 – expert opinion must be based on matter reasonably relied upon, but chart prepared by party’s relative with interest in litigation lacks independence. Chart excluded, though my testimony about revenue decline based on POS data (which I had verified) was allowed.
Lesson learned – my new rule:
- Never use party, party’s family, or party’s employee to create exhibit that will be admitted. Even if I design it, appearance of bias = exclusion risk.
- Use independent assistant: My admin assistant who has no relationship to party, or FedEx Office, or independent graphic designer. Then I can testify: “Assistant has no interest, I supervised, data from POS which I verified.”
- If must use party’s employee for data pull (because they know system): Have them pull raw data only (export POS), then I create chart myself or via independent assistant. Raw data export is gofer work, not judgment, but still document that I verified export ties to source.
How Opposing Counsel Can Depose Your Assistants – Prepare For It
Under Dura Automotive, opposing party can depose your assistants to make sure they performed tasks competently.
What they will ask your assistant at deposition:
- “What did you do on this case?”
- “Did Mr. Jackson supervise you? How?”
- “Do you have accounting training? Are you CPA?”
- “Did you decide which transactions were personal?”
- “Did you calculate damages?”
Correct answers (train your assistant):
- “I typed report from Mr. Jackson’s handwritten draft, entered bank data he instructed, created pivot table per his sketch, and formatted chart. Mr. Jackson reviewed all work, checked totals, and made all judgment calls about which transactions were personal and damages calculation.”
- “I have admin experience, not CPA, I did not exercise professional judgment.”
If assistant says “I decided which transactions were fraud,” you are in trouble – that’s professional judgment beyond gofer, assistant must be disclosed as expert and qualified.
How to Document Supervision So Report Survives Sargon / Daubert
In the future, I will continue to pay attention to this area so that I can strike the correct balance between being economical for the client and including professional oversight so that if a secretary or other person helps with an administrative project the work will continue to be admitted.
My checklist to survive motion to exclude:
- Engagement letter states: “Expert may use administrative assistants for data entry and graphics under expert’s supervision. All professional judgments made by expert.”
- Workpapers show supervision:
- Keep my handwritten sketch of table/chart with my initials and date
- Keep email: “Assistant – please create pivot per sketch, I’ll review”
- Keep my review notes: “Checked totals tie to bank statements – OK – RB 5/1/26”
- This proves supervision
- Report language:
- “I performed analysis, with administrative assistance for data entry and graphics, all under my supervision. All opinions are mine.”
- Don’t use party’s relative or employee for exhibits
- If assistant does substantive analysis (e.g., runs DCF model I designed): Disclose assistant as non-testifying staff, describe their qualifications, state they worked under my supervision per Rule 703 and standard practice in forensic accounting field (cite NACVA standards allowing use of staff)
- Be prepared at deposition: “Did you supervise carefully?” “Yes, I reviewed every workpaper, checked totals, recalculated damages. Relying on assistance for data entry is standard practice – Big 4 does same.”
California specific: CCP 2034.260 requires expert declaration stating opinion and basis. If assistant exercised judgment, you must disclose assistant’s identity and qualifications in declaration or risk exclusion.
If you are attorney hiring expert and opposing expert used undisclosed assistant to do valuation, move to exclude under Sargon and Dura Automotive – argue assistant exercised professional judgment beyond gofer work and was not disclosed or qualified.
If you are solo expert like me competing with Big 4, you can ethically use assistants to keep costs down for client – just document supervision and keep professional judgment to yourself.
Contact hpaccounting.com/contact for expert witness work where I handle both judgment and economical staffing.