Page 21 - Expert Witness

Inconsistent Opinions

At the outset of litigation, a practitioner usually cannot know his or her ultimate opinions. Only after a
careful evaluation and analysis of the facts can the practitioner form an opinion. An opinion could be
adverse to the client’s position or legal theory. When a practitioner draws conclusions that are incon-
sistent with the theories pursued by the client in the case, the practitioner should contact the attorney as
soon as possible. In the event the attorney is unable to provide additional information regarding the prac-
titioner’s inconsistent opinion, the practitioner may need to withdraw from the engagement.

Qualifications

One of the most important factors for the practitioner and the prospective client to evaluate prior to be-
ing retained as an expert witness is qualification to serve. It is common for the practitioner to provide a
professional resume or curriculum vitae (CV) to the potential client or the client’s attorney to assist with
this determination. Under Rule 26(a)(2) of the Federal Rules of Civil Procedure, the expert witness must
disclose the witness’s qualification including the following:

 A list of publications authored in the previous 10 years

 A list of cases in which the expert previously testified at trial or by deposition. Some jurisdic-
tions may not require a list of cases in which the practitioner testified only by deposition.

 A statement of the compensation to be paid for the study and testimony in the case

Typically, these items are included in the CV or attached as a supplement.

The practitioner also should be aware that once disclosed as an expert witness, opposing legal counsel is
likely to scrutinize the practitioner’s reputation, published works, prior testimony, and opinions, as well
as any other factor that might be relevant, in an effort to challenge qualifications or to discredit or limit
the practitioner’s expert testimony. If the practitioner believes he or she is unqualified to serve as an ex-
pert, the practitioner should inform the prospective client or the client’s attorney immediately and de-
cline to accept this portion of the engagement.

Scheduling

The practitioner should obtain an understanding about the timing of the work to be performed and any
important dates in the litigation process before agreeing to undertake a litigation engagement. This in-
formation may be obtained from the prospective client or the client’s attorney, scheduling or calendaring
orders, and other case filings. Typically, key dates for the practitioner to know will include deadlines for
disclosure of witnesses, expert witness and rebuttal reporting, depositions, closure of discovery, seques-
tration, and trial.

Due to the nature of litigated disputes and the numerous ways a matter may progress through the litiga-
tion process, the practitioner may be approached to accept a litigation consulting engagement close to
the deadline for closure of discovery. This presents difficulties and challenges for the practitioner to
complete an appropriate amount of work for sufficiently supportable expert opinions. Complicating this
situation, the practitioner may not have available to him or her all the relevant information to perform

© 2020 Association of International Certified Professional Accountants 19