Page 16 - Expert Witness

consider whether it is likely that he or she has the knowledge and skills necessary to provide a reasona-
ble basis to present relevant and reliable testimony on the issues in the particular case.

Another factor that practitioners may want to consider when contemplating whether to accept work as an
expert is whether an attorney or client will restrict the practitioner’s scope by limiting access to certain
facts or attempting to influence the practitioner’s judgment. Such restriction or limitation might endan-
ger the practitioner’s reputation and the ultimate success of the case. In some situations, however, any
attorney’s limited presentation of the facts to a practitioner may be appropriate.

When providing expert testimony, the practitioner’s every word, through reports, deposition, or on the
stand at the trial, will be scrutinized by intelligent and experienced attorneys and opposing experts. Any
weakness or inconsistency in testimony could be used against the expert witness. Therefore, before ac-
cepting an engagement, a practitioner may want to review his or her testimony given in previous en-
gagements to be sure it is consistent with the testimony anticipated in the prospective engagement. A
practitioner who has no previous testimonial experience should consider whether his or her background
is appropriate for the engagement and whether this litigation is a proper one for his or her first experi-
ence before accepting the engagement.

A practitioner should consider whether his or her testimony would be consistent or inconsistent with the
position of the client. It can be extremely embarrassing to the practitioner to give testimony that contra-
dicts the client’s position.

Practice mobility has become an issue that a practitioner also needs to consider before accepting an en-
gagement. Mobility for a practitioner is the ability to gain a practice privilege outside of his or her home
jurisdiction without obtaining an additional license in another state where he or she will be serving a cli-
ent or an employer. Because the electronic age makes conducting business across state borders an eve-
ryday occurrence, an effort is underway to adopt a uniform system that will allow licensed practitioners
to provide services across state lines without being subject to unnecessary burdens that do not protect the
public interest. Currently, if a practitioner is practicing outside his or her home state, or expects to, he or
she should take into consideration the other states’ licensing requirements and ensure compliance. Prac-
titioners may obtain details on varying state boards of accountancy requirements by visiting the cpamo-
bility.org website.

A practitioner can serve in other roles in the litigation process, such as a trier of fact, a special master, a
court-appointed expert, a referee, an arbitrator, or a mediator; a practitioner can also perform investiga-
tive services. The independence implications of providing these services are addressed in Ethics Inter-
pretation No. 101-3, "Performance of nonattest services," of the "Independence Rule." fn 4

The Client-Practitioner Relationship

At the beginning of an engagement, it is important to determine whether the client is the attorney or the
attorney’s client. If the client is the attorney, the practitioner’s work may be protected from discovery by
opposing parties as long as the practitioner does not give expert testimony. In most instances in which
the practitioner is retained as a consultant by the client’s attorney, such work will be protected by privi-
lege. fn 5 Consultants, as opposed to experts, may help develop the strategy of the case, assist in prepar-

fn 4 ET sec. 0.400.21.

fn 5 The attorney work product privilege doctrine should be monitored to ensure an up-to-date understanding.

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