Roles of the Practitioner

The CPA's Role

Engagement objectives in litigation services depend on the role the CPA will play. If the CPA is retained as an expert witness, the objectives are to form an expert opinion and to testify about it in a deposition or at trial. If the CPA is retained as a consultant to the attorney, the objectives are to advise the attorney about the facts and issues of the case and possibly to help the attorney develop case strategy.

In either role, the CPA could also assist in the cross-examining of the opposing party’s fact and expert witnesses, in proving or disproving liability, or in proving or disproving the cause of damages and the amount of damages.

Roles of the Practitioner

A practitioner may be retained in a number of roles. These include:

a.      Expert Witness

A person designated to render an opinion before a trier of fact is an expert witness. If the practitioner is designated as an expert witness, all work the practitioner has performed related to the litigation is potentially discoverable.

b.    Consultant

A person who is retained to advise about the facts, issues, and strategy of the matter is a consultant. The consultant does not testify about an expert opinion before a trier of fact, unless the consultant’s role is changed to that of an expert witness at a later date.

The consultant’s work generally is protected from discovery by the attorney work-product privilege, which emanates by extension from the attorney-client privilege. CPA-client privilege is non-existent except in certain situations involving practice before the IRS. When engaged by a litigant, as opposed to the litigant’s counsel, the consultant should confirm that the attorney’s work product privilege remains intact.

c.      Other

This can be a person who is retained in a number of different roles, including a trier of fact, special master, court-appointed expert, referee, arbitrator, or mediator.

The roles of the expert and consultant are different. The term practitioner is used when the CPA may be serving either as an expert or consultant. The terms expert and consultant are used in those instances to clarify the separate roles of the practitioner.

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Engagement Acceptance Considerations

The CPA's Role

A CPA’s decision to become involved in litigation may depend on whether the attorney is seeking an expert witness or a consultant. As an expert witness, the CPA presents opinions publicly in an objective fashion, but as a consultant, the CPA advises and assists the attorney or client in private.

In the private consultant role, the CPA provides assistance more like that of an advocate to help the attorney identify the case’s strengths and weaknesses or to develop strategy against the opposition.

When acting as an expert witness, CPAs need to make clear to the attorney and client that the CPA's role is not to become the client's advocate. Client advocacy is a proper role for lawyers, but not for CPAs who will provide expert testimony. The CPA's role is to form an objective professional opinion based on either facts or hypotheses.

As expert witnesses, CPAs need to maintain objectivity at all times in a litigation services assignment. Of course, they also need to present and defend their position with strength and conviction.

An attorney or client who restricts the CPA's investigation by limiting access to the facts or by trying to influence the CPA's judgment endangers the CPA's reputation and the ultimate success of the case. The CPA needs a fair amount of freedom in determining the scope of the engagement after the duties have been established.

The CPA should be wary of the attorney or client who seeks expert testimony but is unwilling to provide the necessary time and resources to properly prepare a professional opinion. If the attorney or client is unwilling to disclose all relevant facts about the litigation or to provide sufficient preparatory time, it is appropriate for the CPA to consider declining or withdrawing from the engagement.

In some situations, however, an attorney's limited presentation of the facts to a CPA could be considered appropriate. This would apply if the attorney wants the CPA's contribution limited to testimony addressing a hypothetical construct presented at trial and the trier of fact is aware of the limitations.

Few engagements are as demanding as those requiring CPAs to be expert witnesses at trial. Their every word, either in a deposition or on the stand at trial, will be scrutinized by intelligent and experienced attorneys and opposing experts.

Any weakness or inconsistency in testimony will likely be caught and turned against the expert witnesses. Therefore, it is necessary that CPAs review testimony given in previous engagements to be sure it is consistent with the testimony expected in the prospective engagement. CPAs who have no previous testimonial experience should consider whether their background is appropriate for the prospective engagement and whether this litigation is a proper one for their first experience.

CPAs must consider whether the position they are to testify on is consistent or inconsistent with the position of the client. It can be extremely embarrassing to the CPA to give testimony that contradicts the client's positions, especially if it concurs with the opposition's news, and then to have the inconsistency disclosed by the opposition.

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