Page 25 - Civil Litigation

commonly requested expert opinion from the practitioner; it is the quantification of monetary damages
based on legally acceptable theories of remedy. fn 46

If the practitioner determines a requested expert opinion is inappropriate, improper, or impossible, the
practitioner should inform the potential client or attorney, or both, promptly and consider rejecting the
assignment. The practitioner should take care to avoid accepting and performing assignments to reach
expert opinions that are unsupportable, overreaching, or inconsistent with prior opinions and testimony.

Furthermore, paragraph 10 of SSFS No. 1 specifically prohibits a practitioner from opining regarding
the ultimate conclusion of fraud (except in those cases where the practitioner is serving as the trier of
fact). Practitioners should exercise caution when developing and communicating conclusions to avoid
opining regarding the occurrence of fraud. Practitioners may, however, provide expert opinions relating
to whether evidence is consistent with certain elements of fraud or other laws based on objective evalua-
tion.

Communications

Communications between the reporting expert witness and the client or the client’s law firm, as well as
any materials or information developed or received (whether oral or written), will not be protected by
applicable legal privileges and, therefore, are discoverable to the extent they

1. relate to compensation for the expert’s study or testimony;

2. identify facts or data that the party’s attorney provided and that the expert considered in forming
the opinions to be expressed; or

3. identify assumptions that the party’s attorney provided and that the expert relied on in forming
the opinions to be expressed.

The privilege does not extend to communications with experts that are not required to provide a written
report. Committee Notes on Rules suggest this privilege would be afforded to communications between
the expert and in-house counsel, even if he or she is not the counsel of record in the current proceeding.
Moreover, it would not be limited to communications with a single lawyer or law firm.

Practitioners are advised to discuss the discoverability of communications with counsel for state court
matters as the laws of each state vary with regards to the discoverability of expert communications.

Competence

An expert witness is considered competent by reason of education or specialized experience and is al-
lowed to testify at a trial about the facts of the case and about the professional conclusions he or she
draws from the facts.

fn 46 The client’s attorney may ask the expert witness to assume liability or proximate cause, or both, when calculating
damages or rebutting the computations of others. The practitioner should consider the risks and dangers of adopting
such assumptions if they are unreasonable or untested.

© 2020 Association of International Certified Professional Accountants 23