Page 17 - Expert Witness

ing other experts to testify, develop cross-examination material for use against the opposing experts, as-
sist with discovery, and explore the strengths and weaknesses of each party’s case. However, if the prac-
titioner’s client is the attorney’s client, then the attorney’s work product privilege may not protect the
practitioner’s work from discovery by the opposing side.

The work of experts, regardless of the client, will likely be discoverable. fn 6 Nonetheless, no matter
what the practitioner’s role, the practitioner should maintain working paper files with the expectation
that the working papers will be produced. A waiver of the privilege, or a production of documents com-
pelled by a regulatory body, many times causes an unanticipated production.

Particularly when a practitioner is engaged to serve as a litigation consultant, legal privilege may protect
the practitioner’s work. Legal privilege applicable to practitioners typically falls into one of the follow-
ing categories:

 Attorney-client privilege. The client’s right to refuse to disclose, and to prevent any other person
from disclosing, confidential communications between the client and the attorney.

 Attorney work-product privilege or doctrine. Under this rule, anything prepared by an attorney in
anticipation of litigation is protected from discovery or compelled disclosure. This includes, but
is not limited to, notes, working papers, and memoranda.

 Accountant-client privilege. The protection afforded to a client from an accountant’s unauthor-
ized disclosure of materials submitted to, or prepared by, the accountant. This privilege is not
widely recognized.

It is important for the practitioner to discuss with the client’s legal counsel the extent the practitioner’s
work is protected by legal privilege because it may influence communications and how the work is di-
rected, documented, and disclosed. In instances in which legal privilege will be, or may be, asserted, the
practitioner should confirm communication and documentation protocols, and work product should be
identified on its face as "privileged" to aid in identification and protection.

Scope of Work

It is critical that the practitioner obtain an initial understanding about the expected scope of work and the
practitioner’s and others’ roles in the engagement. However, the scope and roles often change over the
course of a forensic services engagement, so the practitioner should periodically document this under-
standing. If the practitioner decides that the role, scope, or limitations are unacceptable, the engagement
should be declined.

Timetables

The litigation process timetable often is determined by the court. When accepting a litigation services
engagement, the practitioner needs to consider the timetable to provide services. Quite often, lawyers
delay hiring experts, which may affect the practitioner’s ability to adequately perform his or her ser-

fn 6 Effective December 1, 2010, Rule 26 of the Federal Rules of Civil Procedure was amended to provide that draft reports of experts
are no longer discoverable.

© 2020 Association of International Certified Professional Accountants 15