ACFEI

Marc A. Rabinoff’s Response to Frontline

I was one of the first members of the organization, so I've been with the organization for a long time. And during that period of time, I became involved in a lot of activities of the organization, including being on the board and being on committees, teaching courses, doing all kinds of things. During this time, the group asked me to be part of a group of colleagues to write the first Certified Forensic Consultant course, and that was really an outgrowth of the ethics course that Dr. Standing Bear and I talked about for many, many years at national conferences and so forth. He has written many, many articles on ethics. And so we took this ethics course and we morphed it into what we called the CFC. So the foundations of this course stem from ethical performance of forensic experts, that forensic experts need to understand their role in the litigation process, and they have to understand the roles of all the other players, such as judges, attorneys, juries, and witnesses. Then they have to understand some of the legal actions that go on during the discovery process and go on all the way to trial and even motions after trial.

So that's what spurred me to write my book, The Experts Guide to Litigation: the Anatomy of a Lawsuit. And that book basically became part of the CFC course, where I would take the attendee through a journey of the discovery process. That way the forensic expert would understand what the attorney was doing and the attorney should understand what the forensic expert was doing and so forth. So the book went from an ethical examination of the ethical behavior of a forensic expert to an anatomy of a lawsuit, discovery process knowledge base. So that the forensic expert would not be shocked if someone said there is going to be a motion limiting on you, let's talk about it, rather than saying "I don't know what that is."

Now the forensic expert knows what that is and can get their head together and realize what it is and help the attorney writing the argument for that Motion in Limine. And that's a motion to eliminate the expert in total, or parts of what he or she is going to say, or even a document that he or she used. So it's a very important motion, and that's just one example of it. We also cover in the course, because the rules change is the Federal Rules of Procedure, 702, rule 26 within that. So these are the rules that govern how an expert is determined in the first place to render an opinion and what that opinion must be based on. And it's clear in there, in the federal rules, that the bar is set pretty high. And that the only determiner of that is the judge. So a person can't just wake up one morning and decide to be a forensic expert, they can't do that, and ultimately testify at trial. Because half of what all forensic experts do is forensic research.

If you are a forensic dentist, you're doing research on a deceased person, you look at their teeth, you do whatever you have to do, that's all within you as a dentist. We at ACFEI don't teach that at all. You're already a dentist when you take my course. You're already an MD, you're already a pathologist, you're already an accountant. It doesn't matter. And all of that is great because that is what you study to become. But, at some point, you're going to have to testify at trial. At some point you're going to have to deal with the attorneys. Whether that be defense attorneys, prosecutors, at some point you're going to have to deal with a judge. So that's what this course does.

This course takes a person, who has a degree in journalism for example, whether or not you can testify at trial is up to the judge. Your academic training is only one component. You may need other components to be admitted by a judge to testify. And this is the same in district court and it's the same in federal court. Obviously it's harder in federal court, district judges can follow it, they cannot follow it, they can do whatever they want.

So the course was set up to allow any member of ACFEI who wants training in this discipline, to learn this entire process. Also, within this process, there are things you have to do as an expert. You have to read documents like depositions, interrogatories that are produced. You then have to write a report. And writing a report is not the same as a novel, it's not the same as writing an article, it's not the same as being a blogger. You have to understand how to write the report, what the court demands be in an expert report, so we cover that. And we cover all of the issues surrounding all of these things; it's all in my book. And it's all in the outline that we did. So the course is pretty intense in all of these things. Now, it's only one course. So it doesn't cover everything in depth, you know there are whole books written on just writing a report.

So certainly the attendees in the course, I give them all kinds of references. If you want more references for the course or if you didn't learn enough about writing a report, here's what you can do, and if you didn't learn enough about these motions, here's where you can go. And I give them citations of the stuff, I've done that forever. I cite everything we talk about. So the course is a complete analysis, at least in a global way, an overall way, of what the forensic expert can expect when they are in a litigation situation. Which is what a forensic expert does.

I don't know too many forensic experts that haven't testified at trial, or at least written a report or testified in a deposition. Especially over the course of a number of years, I've done over 500 litigations in 32 years and I'm doing 25 right now. And I just testified last month in two trials, one in New Jersey and one in Maryland. And I just finished this morning writing another report for another case for a deposition tomorrow. So I do it all the time. And the courts and the judges are holding experts now to even a higher standard than they ever have. So the rules certainly have changed and it has become harder and harder for an expert.

So when somebody says, "Yeah I'm an expert journalist," all that means is that for some reason you think you know journalism. And you're calling yourself that. Well that isn't what happens in the litigation process. And that isn't what ACFEI is about. You can call yourself anything you want. It's up to the judge and the trier of fact to believe the judge if he or she allows you to testify. Then the trier of fact looks at who you are and then looks at your testimony to decide if they agree, disagree, in whole, in part, whatever. The rules are clear for a jury. Then the jury then decides whether that expert is credible or not. And so the system has built-in redundant systems that make it a difficult road for somebody to testify in any discipline.

And that's why the CFC course was established and that's how I've taught it for, I don't know, 10 years at least. And that's why my colleagues and I wrote it that way. This course does not make you a forensic expert. This course does not automatically put you into every trial and every judge now has to accept you. This course doesn't do any of that. It's a course that validates a body of knowledge that you have, that attorneys and judges want you to have. And that juries ultimately expect.

There isn't anything wrong with an open book test, by the way. I give open book tests to some of my classes at college, and some I don't. Depends on the course. And I've found that when I give an open book test, the grades are lower in an open book test than they are in a not open book. And so this concept that taking an open book test is in some way or another a bad thing, is garbage. It's a totally acceptable way of testing.

— Dr. Marc A. Rabinoff, Ed.D., CFC

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