Academic journal article Journal of Accountancy

Proposed Changes in Federal Evidence Rules

Academic journal article Journal of Accountancy

Proposed Changes in Federal Evidence Rules

Article excerpt

Marvin L. Stone, CPA, Denver, Colorado, a litigation services veteran and a member qfthe American Institute of CPAs litigation services sub-committee, describes proposed changes in, federal miles that could affect CPAs who offer services as expert witnesses.

There is growing dissatisfaction among lawyers, judges and the general public with the cost and slowness of our system of dispute resolution. Two efforts to streamline court procedures have been proposed. The more widely publicized effort, spearheaded by former Vice-President Dan Quayle, was developed by a special working group chaired by former Solicitor General Kenneth W. Starr at the behest of the President's Council on Competitiveness. With the recent change of administration, it appears unlikely this proposal will be given serious consideration. The other equally comprehensive proposal was developed by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. After public hearings, the Judicial Conference approved a slightly amended version in September 1992. The U.S. Supreme Court is now reviewing the proposed amendments to the Federal Rules of Civil Procedure, which must be transmitted to Congress by May 1, 1993. If Congress approves the amendments, the rule changes will take effect December 1, 1993.

THE RECOMMENDATIONS

The amendments contain general recommendations that would indirectly affect CPAs who provide litigation services by

1. Limiting the number (and, at the judge's discretion, the length) of depositions and the number of interrogatory requests.

2. Requiring voluntary disclosure of "core" information regarding disputed facts.

The amendments also set forth specific recommendations, summarized below, related to expert testimony.

Limit opinion testimony. There is widespread concern over some of the novel theories--sometimes characterized as "junk science"--propounded by expert witnesses in court proceedings. While disaffection with such testimony is aimed primarily at fields other than accounting, new limitations will affect CPAs.

Current rules permit experts to provide information that will assist the trier of fact; new rules would admit information only if it is "reasonably reliable" and will "substantially" assist the trier of fact.

Mandate pretrial disclosure. The committee would require experts to provide opposing counsel all information on which they have relied and to produce advance copies of all charts and exhibits. % eliminate surprises, the committee would prevent experts from testifying on information not previously disclosed and would require disclosure of any changes in the expert's opinions that occur during pretrial discovery.

Permit deposition of experts. Experts now may be deposed only if permitted by the court. While permission is usually granted, the committee recommends that such depositions no longer be subject to court discretion. Litigants would be entitled to depose opposing experts subject only to the general constraints on the number and length of depositions mentioned above.

Alter testimony rules. The committee would require the expert to provide a detailed, written report to adverse parties before the expert's deposition and would authorize judges, in nonjury cases, to require submission of an expert's direct testimony as a written report, subject to oral cross-examination. …

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