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Expert Witness Engagements

Article excerpt

CPAs fulfill an important role in the litigation process by assisting lawyers to prepare for and conduct lawsuits. The CPA's services can be as a consultant to the lawyer or as an expert witness. For a good overview of the range of litigation consulting engagements and the professional standards under which the work is performed, I suggest you refer to "Litigation Consulting--A Practitioner's Guide," published in the April 1990 The CPA Journal. Only as an expert witness does a CPA provide oral and written testimony and render expert opinions.

There are certain parallels between a CPA testifying as an expert witness and rendering an audit report on financial statements. Both involve the expression of opinions by the CPA based on the performance of various procedures during the course of a professional engagement. Both span lengthy periocls of time, involve the examination of various documents, and require familiarity with professional standards, to mention a few. But the comparison quickly ends when the expert witness CPA (hereafter referred to also as the exert witness or the expert) is called to the witness stand and the court clerk administers the oath. Each time I repeat the oath I am reminded of the distincitve nature of the expert witness engagement. As I take the stand, I invariably feel a unique sense of challenge, responsibility, and exhilaration.

These emotions, of course, are also experienced by CPAs prforming more traditional services. In the audit arena, for example, I can quickly think of such situations, for example making a proposal for sizable new business to a prospective client, recommending a major change in some aspect of the client's business, proposing a significant audit adjustment, and making an important presentation to an audit committee or a board of directors. What makes serving as an expert witness so unique is the recognition of the direct effect your testimony can have on the resolution of all important dispute between the parties to the lawsuit. Put another way, a lot is usually at stake and your testimony is apt to have a significant influence on the outcome. And, to complete the picture, the opposing side in the lawsuit is represented by legal counsel whose objective in cross-examining you is to attack your credibility and competence.

ACCEPTING THE ENGAGEMENT

When the opportunity to serve as an expert witness arises, as with any new business opportunity, the CPA must carefully consider a number of factors before deciding to accept the engagement.

Conflicts of Interest

Foremost among these is the need to check whether the relationships of the CPA or his or her firm can lead to conflicts of interest with any of the parties to the lawsuit or the law firms involved. An inconsistency as to the position of the CPA or his or her firm on a key issue in the lawsuit may be another reason for not accepting a prospective engagement. The discovery that the position an expert witness is supporting in a lawsuit is inconsistent with a previous position he or she has taken or a position advocated by his or her firm, or accepted when taken by one of its clients, can be devastating. For this reason, it is good practice for the prospective expert to provide copies of previous testimony and articles to the lawyer heading the litigation team. Not only does this enable the lawyer to get a handle on possible inconsistencies with issues in the lawsuit, but it also helps the lawyer to learn more about the expert witness.

Scheduling Problems

Scheduling problems are another type of conflict to avoid. Usually, the prospective expert will be a senior partner in a firm and will have significant and demanding responsibilities, the timing of which may conflict with the requirements of the potential engagement. As discussed later, expert witness engagements impose limitations on the ability of the expert to delegate work. Prospective experts must consider whether their schedules will permit them to devote the time, and when it is anticipated that their services will be required. …