This document summarizes the role of expert witnesses in litigation, with a focus on accounting experts. It discusses how expert witnesses are used to assist courts in resolving complex issues outside the knowledge of judges and juries. The expert's primary duty is to the court, not to the hiring party. The summary also outlines important qualities of expert testimony like being unbiased, relevant, reliable, and cost-effective. It notes that experts can face civil liability for negligence if these qualities are lacking. Finally, it provides an overview of the process for selecting and engaging expert witnesses.
The document discusses expert witness testimony in Ireland. It notes that the Law Reform Commission published a consultation paper in 2009 with recommendations including defining "expert", establishing guidelines for expert witnesses, and banning fee arrangements contingent on case outcomes. Feedback supported clarifying experts' overriding duty to the court. The role of expert witnesses is explored through an interview with a surgeon experienced in medico-legal reporting and testimony. He emphasizes that expertise requires reasoned, evidence-based opinions considered from multiple perspectives rather than fixed views. Preparation and understanding one's duty to the court are key to the complex role of a medical expert witness.
This document discusses different types of administrative law hearings and procedures. It begins by explaining that different agencies allow different types of hearings depending on factors like cost, timeliness and fairness. Hearings can be oral, electronic, or written. Written hearings involve parties submitting documents and evidence in writing without appearing before the tribunal. The document then discusses who has standing to participate in proceedings, the roles of agency counsel and adjudicators, and the typical phases and procedures of a hearing, including preliminary issues, opening statements, fact-finding through examination of witnesses, and closing submissions. It emphasizes that while tribunals are not courts, they have power to control their own processes.
The document discusses the legal doctrine of precedent, also known as stare decisis. It provides three key points:
1) Precedent, or stare decisis, means that a point of law settled by a previous judicial decision should be followed in subsequent similar cases. The earlier case that is directly on point must be followed.
2) When making decisions, judges consider how the decision coheres with existing legal principles and authorities, as well as the broader consequences.
3) Critics argue that deconstructing legal reasoning can reveal its emptiness, but legal reasoning aims to present relevant features of prior cases rather than function as a scientific demonstration.
Daubert Rules of Expert Witness Testimony AdmissibilityChuck Detling
This document lists how to qualify as an expert witness in each of the 50 states, including whether the state is a Daubert or Fry jurisdiction and whether the expert needs to be licensed as a professional engineer in that state. Specific emphasis is put on admissibility of biomechanic and accident reconstruction testimony.
An Analysis on the Probative Value of Evidence: A Reviewiosrjce
This document provides an analysis of the probative value of different types of evidence under the law. It begins with definitions of evidence and discusses the general concept and classifications of evidence as oral, documentary, real, etc. It then analyzes the evidentiary value of different kinds of evidence such as direct evidence, circumstantial evidence, hearsay evidence and exceptions. Direct evidence is considered the best type of evidence while circumstantial evidence can also be used to convict someone if it leads conclusively to the guilt of the accused and excludes other reasonable possibilities. The document provides examples and case law discussions to explain evidentiary values and the standards for evaluating different evidence in legal proceedings.
Litigation Tips for Complex Administrative Law Casesannskowronski
Expert witnesses can help clarify complex issues in administrative cases but may also complicate discovery. When considering designating an expert, attorneys should weigh whether their testimony is necessary and the potential impacts on discovery. If an expert is designated, they must be prepared for the scope of discovery, as their work product and communications are generally not privileged. Learned treatises can also be used to support or impeach testifying experts if properly introduced.
Litigation Tips for Complex Administrative Law Casesandresmedrano249
Expert witnesses can help clarify complex issues in administrative cases but may also complicate discovery. Parties should carefully consider whether designating an expert is necessary and beneficial for their case or will overly burden discovery. Any potential expert witnesses should be prepared early for the scope of discovery, as their documents and communications are not protected. Learned treatises can support or impeach testifying experts if properly introduced through questioning.
Business litigation is usually about numbers. The damages, value, financial analysis and appraisal you need to prove your case will often require the opinion of an independent financial expert such as a business valuator, forensic accountant, economist, appraiser or any of a panoply of other financial experts.
The expert's evidence could make or break the case. So it's important to engage counsel who knows the rules and an expert whose opinion will be accepted by the court.
In this interesting presentation, Igor Ellyn, QC, CS, FCIArb, a senior business litigation and arbitration counsel in Toronto, Canada, discusses the law affecting the use of financial experts and best practices to make their evidence most effective. Mr. Ellyn was assisted by Evelyn Perez Youssoufian, also, a business litigation and arbitration lawyer. Both are members of Ellyn Law LLP.
The following topics are discussed:
- What an expert witness should accomplish
- Determining when to use a financial expert
- What kind of financial expert do you need?
- Types of financial expert witnesses
- Factors to consider when hiring the expert
- New developments in presentation of expert evidence
- Conflicts of interest and disclosure
- Litigation privilege relating to expert reports
- Best practices for qualifying a financial expert
- Limits of admissibility of expert evidence
- Preparing the financial expert to testify at the hearing
- Preparing for cross-examination of the opposing expert
- The Court’s power to appoint an expert
- Counsel’s role in the content of the expert’s report
This presentation was prepared for a legal conference which took place in Toronto on May 30, 2013. The contents are not legal advice. Please contact the author if you have any questions.
The document discusses expert witness testimony in Ireland. It notes that the Law Reform Commission published a consultation paper in 2009 with recommendations including defining "expert", establishing guidelines for expert witnesses, and banning fee arrangements contingent on case outcomes. Feedback supported clarifying experts' overriding duty to the court. The role of expert witnesses is explored through an interview with a surgeon experienced in medico-legal reporting and testimony. He emphasizes that expertise requires reasoned, evidence-based opinions considered from multiple perspectives rather than fixed views. Preparation and understanding one's duty to the court are key to the complex role of a medical expert witness.
This document discusses different types of administrative law hearings and procedures. It begins by explaining that different agencies allow different types of hearings depending on factors like cost, timeliness and fairness. Hearings can be oral, electronic, or written. Written hearings involve parties submitting documents and evidence in writing without appearing before the tribunal. The document then discusses who has standing to participate in proceedings, the roles of agency counsel and adjudicators, and the typical phases and procedures of a hearing, including preliminary issues, opening statements, fact-finding through examination of witnesses, and closing submissions. It emphasizes that while tribunals are not courts, they have power to control their own processes.
The document discusses the legal doctrine of precedent, also known as stare decisis. It provides three key points:
1) Precedent, or stare decisis, means that a point of law settled by a previous judicial decision should be followed in subsequent similar cases. The earlier case that is directly on point must be followed.
2) When making decisions, judges consider how the decision coheres with existing legal principles and authorities, as well as the broader consequences.
3) Critics argue that deconstructing legal reasoning can reveal its emptiness, but legal reasoning aims to present relevant features of prior cases rather than function as a scientific demonstration.
Daubert Rules of Expert Witness Testimony AdmissibilityChuck Detling
This document lists how to qualify as an expert witness in each of the 50 states, including whether the state is a Daubert or Fry jurisdiction and whether the expert needs to be licensed as a professional engineer in that state. Specific emphasis is put on admissibility of biomechanic and accident reconstruction testimony.
An Analysis on the Probative Value of Evidence: A Reviewiosrjce
This document provides an analysis of the probative value of different types of evidence under the law. It begins with definitions of evidence and discusses the general concept and classifications of evidence as oral, documentary, real, etc. It then analyzes the evidentiary value of different kinds of evidence such as direct evidence, circumstantial evidence, hearsay evidence and exceptions. Direct evidence is considered the best type of evidence while circumstantial evidence can also be used to convict someone if it leads conclusively to the guilt of the accused and excludes other reasonable possibilities. The document provides examples and case law discussions to explain evidentiary values and the standards for evaluating different evidence in legal proceedings.
Litigation Tips for Complex Administrative Law Casesannskowronski
Expert witnesses can help clarify complex issues in administrative cases but may also complicate discovery. When considering designating an expert, attorneys should weigh whether their testimony is necessary and the potential impacts on discovery. If an expert is designated, they must be prepared for the scope of discovery, as their work product and communications are generally not privileged. Learned treatises can also be used to support or impeach testifying experts if properly introduced.
Litigation Tips for Complex Administrative Law Casesandresmedrano249
Expert witnesses can help clarify complex issues in administrative cases but may also complicate discovery. Parties should carefully consider whether designating an expert is necessary and beneficial for their case or will overly burden discovery. Any potential expert witnesses should be prepared early for the scope of discovery, as their documents and communications are not protected. Learned treatises can support or impeach testifying experts if properly introduced through questioning.
Business litigation is usually about numbers. The damages, value, financial analysis and appraisal you need to prove your case will often require the opinion of an independent financial expert such as a business valuator, forensic accountant, economist, appraiser or any of a panoply of other financial experts.
The expert's evidence could make or break the case. So it's important to engage counsel who knows the rules and an expert whose opinion will be accepted by the court.
In this interesting presentation, Igor Ellyn, QC, CS, FCIArb, a senior business litigation and arbitration counsel in Toronto, Canada, discusses the law affecting the use of financial experts and best practices to make their evidence most effective. Mr. Ellyn was assisted by Evelyn Perez Youssoufian, also, a business litigation and arbitration lawyer. Both are members of Ellyn Law LLP.
The following topics are discussed:
- What an expert witness should accomplish
- Determining when to use a financial expert
- What kind of financial expert do you need?
- Types of financial expert witnesses
- Factors to consider when hiring the expert
- New developments in presentation of expert evidence
- Conflicts of interest and disclosure
- Litigation privilege relating to expert reports
- Best practices for qualifying a financial expert
- Limits of admissibility of expert evidence
- Preparing the financial expert to testify at the hearing
- Preparing for cross-examination of the opposing expert
- The Court’s power to appoint an expert
- Counsel’s role in the content of the expert’s report
This presentation was prepared for a legal conference which took place in Toronto on May 30, 2013. The contents are not legal advice. Please contact the author if you have any questions.
Ethics And The Trial Consultant And Expert WitnessCTIN
The document discusses the roles and responsibilities of trial consultants and expert witnesses. A trial consultant advises the attorney privately and their name and reports are confidential, while an expert witness prepares to testify in court and their name, CV, and reports must be disclosed. The document provides guidance on properly distinguishing between the roles and obligations of a trial consultant versus an expert witness.
Here are the six basic steps of an appeal:
1. Notice of Appeal - The losing party files a notice of appeal with the trial court clerk.
2. Record on Appeal - The clerk prepares the record of documents and transcripts from the trial for the appeals court.
3. Appellant's Brief - The appellant files a brief explaining any errors made in the trial court.
4. Appellee's Brief - The appellee, or opposing party, files a brief responding to the appellant's claimed errors.
5. Oral Argument - Each side may present oral arguments to a panel of appeals judges.
6. Decision - The appeals court issues a written decision either upholding or overturning the lower court's
The document discusses strategies for deposing opposing expert witnesses. It covers topics like getting the information needed from the deposition, reviewing the expert's file, conducting a Daubert examination, dealing with difficult witnesses, setting up the expert for cross-examination at trial, and laying the groundwork for impeachment. The goal is to undermine the expert's testimony and credibility before trial.
The document discusses who qualifies as a computer forensics expert. It defines computer forensics as the identification, preservation, extraction, interpretation and presentation of computer-related evidence. A computer forensics expert is a person with specialized skills and knowledge in this field, gained through training and experience. The document outlines standards from court cases like Daubert that determine what qualifications and methods are required for an expert's testimony to be considered admissible and reliable in court.
This document discusses the rules and principles regarding expert opinion evidence under Section 45 of the Malaysian Evidence Act 1950. It covers topics such as the qualification of experts, when expert evidence is needed, types of expert opinions, and the evidentiary value of expert opinions, particularly regarding handwriting analysis. The key points are:
1) Expert opinion is admissible when the court needs specialised knowledge on issues of foreign law, science, art or identity. Experts must be qualified through education, training or experience.
2) Expert evidence is only needed when the issue is beyond the knowledge of the judge. It cannot be conclusive and the court will consider it along with other evidence.
3) Handwriting analysis is considered the we
The document discusses the ethical and liability risks for lawyers who do not use computer-assisted legal research (CALR) technology such as Westlaw and LexisNexis. While there is no direct rule requiring the use of CALR, the standard of competent legal practice implies that lawyers must use tools that allow for thorough, efficient research. Failure to research issues adequately could lead to ethics violations, malpractice claims, or sanctions. As CALR has become ubiquitous and courts increasingly rely on it, not using these tools risks a lawyer failing to meet the standard of competent legal representation according to evolving practices.
Someone has rightly said, “Deposition is the core part of litigation”. An attorney heavily relies upon the testimony of the witnesses in order to prove the claim of the client and to demolish the claim of the opponent. The purpose of the testimony is to yield the truth. It helps in bringing out the actual veracity from the witnesses. The fate of the trial to a greater extent depends upon the depositions. Testimony is a technique to tacitly elucidate the correct version from a witness. Attorneys put across the questions to the witness so as to bring them to their desired statement in very scattered manners. This makes the deposition a lengthy affair.
Expert Witnesses: The Who, What, When And How Of Retaining Experts And Making...Howie, Sacks & Henry
Expert witnesses are an integral part of the litigation process. The majority of, if not all, personal injury claims involve the use of experts to assist with the resolution of a claim or to adduce evidence at trial.
This paper will focus on a) expert witness selection; b) the pitfalls of experts’ reports and how to avoid them; c) how to effectively prepare an expert for trial; and, d) how to frame the evidence at trial.
The document discusses various topics related to witness preparation by lawyers. It notes that witness preparation is not directly regulated and there is little case law or scholarly literature on the topic. While lawyers have a duty to zealously represent clients, they cannot knowingly assist witnesses to testify falsely or commit perjury. The document discusses challenges around distinguishing proper witness preparation from improper coaching. It also discusses techniques used in witness preparation like "the lecture" and debates around simultaneous witness interviews. Overall, the document examines the ethical boundaries and gray areas of lawyers preparing witnesses for testimony or deposition.
Reasonable Doubt...and Beyond - the case for defining the standard of proof i...Jonathan Rose
This document discusses the standard of proof of "beyond reasonable doubt" in criminal trials in Victoria. It begins by outlining the common law position that judges should not define "beyond reasonable doubt" for juries, as any doubt a jury entertains is considered reasonable. However, psychological research suggests jurors may not inherently understand this standard as intended. The document then examines the legislative framework in Victoria, which mirrors the common law approach. Finally, it introduces that Part IV will analyze psychological research on juror comprehension of the standard of proof and how different definitions impact verdicts, with implications for whether "beyond reasonable doubt" should be defined for juries in Victoria.
The document discusses expert testimony on gangs in criminal trials. It provides information on qualifying as a gang expert witness, including necessary training, experience and qualifications. It also covers acceptable and unacceptable expert opinions on gang evidence, the use of hearsay in forming opinions, and challenges to expert testimony such as bias.
The document discusses expert testimony and expert witnesses. It begins by introducing the general rule that witness opinions and inferences are inadmissible in court. It then discusses exceptions for lay witness opinions and expert opinions. It defines who an expert is and their functions. The document outlines the history of expert evidence and discusses identifying experts and exclusionary rules for expert testimony. In summary, the document provides an overview of the rules and principles regarding expert testimony and expert witnesses in court.
Single Asset Real Estate Cases (Series: Ethical Issues in Real Estate-Based B...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization. But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parities have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2020/
2005-01-18 CBA JR Record and Affidavit ArticleScott McCrossin
The document discusses the proper use of affidavits on judicial review applications in Nova Scotia courts. It begins by explaining the limited scope of judicial review, noting that courts aim to ensure the propriety of decision-making processes rather than determine if decisions were correct. It then discusses what constitutes the "record" in a judicial review proceeding in Nova Scotia, including transcripts, exhibits, and documents before the tribunal. The document aims to determine what further material beyond the record, such as affidavits, may be properly submitted on judicial review applications.
CASE INFORMATIONFind a court case where the company indicated t.docxcowinhelen
CASE INFORMATION:
Find a court case where the company indicated they were surprised the employee charged was a fraudster (use the *KU library (Westlaw) to find the court case).
ANALYSIS REQUIREMENTS:
Based on your readings, literature, and/or the Fraud Examiners Manual analyze the case and include the following in your discussion:
What type of fraud schemes took place in this case?
Analyze the internal controls of this company for "red flags".
Identity why you think the company did not suspect this person was a fraudster and what policies would you put in place for this company to stop this fraud in the future?
WRITING REQUIREMENTS:
· 3-5 pages (not including title page, abstract, or reference page)
· Proper APA format
· Minimum of 3 scholarly sources (not including your textbook)
GRADING REQUIREMENTS:
Click on link to view grading requirements
AUGHT IN THE CROSSFIRE: THE (SUPPOSEDLY) INNOCENT ATTORNEYS WHO REPRESENT ACCUSED FRAUDSTERS
Editor's Note:This article is the second in a series calling for a more aggressive response to bankruptcy and other fraud. The first in the series was initially published in the May 2009 issue, entitled “A Call to Arms: A Bankruptcy Fraud Superfund.”
In law school, we were taught that when representing a person accused of committing a crime, we're never to ask, “did you do it?” From “innocent until proven guilty” to “representation for all,” the axiom was not to know whether the client “did it,” but instead to protect the rights of the accused, even if they did do it. While this ideology is arguably consistent with the will of our forefathers, recall that the context is criminal defense. What's more, the ideology is not without obvious limits in its application, criminally or civilly. Based on my personal experience, many civil lawyers honor the principle of “don't ask, don't tell” to an extreme--and in so doing, have exceeded the limits and crossed the boundary line of ethical conduct.
Before digging too deep into the ethics, though, let's consider a particular criminal defense attorney. The case was an involuntary bankruptcy under §303, and my creditor client successfully obtained the appointment of a gap trustee, more elusive than The Loch Ness Monster herself. The gap trustee and my client then secured an ex parte order for an unannounced inspection of the target's offices. After forcing the target and his staff out the door for a spell, the target hurriedly brought in both bankruptcy and criminal defense counsel. At the conclusion of the hearing that resulted in the denial of a motion to reconsider the judge's order to allow the inspection, the just-hired criminal defense counsel quipped in the hallway outside the courtroom, “sheesh, I guess you guys don't have due process in bankruptcy courts.”
Well, yes, as a matter of fact we do, but when counsel starts going on about how innocent his client is, how we're “making a big mistake” because his client has no money and that.
The document discusses ethics and civil procedure for Malaysian judges. It summarizes principles from English case law that establish an advocate's duty to the court is paramount and overrides obligations to clients. This duty includes not misleading the court, presenting facts fairly, and citing all relevant law, even if against the client. The document emphasizes that ethical behavior and integrity are important for advocates and judges to maintain trust in the justice system.
Appreciation of evidence and Types of Witness.pptxsrikarna235
Admissibility of Evidence
Types of Witness
Accomplice
Witness Protection Scheme
Police Witness
Admissibility of Admission and Confession
Difference between S.123 & S.124
Burden of Proof
Adversarial and inquisitorial systems of justice have blurred distinctions, but key differences remain. In adversarial systems, parties are responsible for evidence and trials determine truth, while inquisitorial systems have faith in pre-trial processes and greater presumption of guilt. Adversarial systems allow prosecutorial discretion and guilty pleas to avoid trial, whereas inquisitorial systems limit discretion and continue trial processes regardless of accused's wishes. The nature of trials also differs, with adversarial trials having parties call witnesses and cross-examine, while inquisitorial trials are judge-led with fewer evidentiary rules. Victims also have a more recognized role in inquisitorial pre-trial investigations and trials.
This document summarizes the changing role of expert witnesses in court. It discusses how expert witnesses are traditionally expected to say whatever can reasonably support the client's position, rather than provide objective assistance. Courts have taken a more aggressive role in screening out "junk" testimony. One reform is the "gatekeeper" role of judges to exclude dubious expertise, based on criteria like testing and peer review. However, studies show judges rarely discuss these criteria and more often exclude evidence based on relevance or witness qualifications. There is a clash between the legal system's need for settled conclusions and experts' view that some issues have no settled answer. Through screening and cross-examination, the legal process does not always succeed at exposing problematic expert testimony that could lead
Brennan, Niamh and Clarke, Peter [1985] Objective Tests in Financial Accounti...Prof Niamh M. Brennan
A multiple choice questionnaire (MCQ) style examination typically consists of 20/30 short statements, each of which is followed by a number of alternative answers. Only one answer is strictly correct. This allows the examiner to mark candidates' responses in an objective rather than subjective fashion. This style of examination question has recently been adopted by the Institute of Chartered Accountants in Ireland and is also used in third level institutions.
MCQs have a number of advantages over traditional examination formats. First, they allow the examiner to ask questions on every topic on the syllabus and thus test the candidates range of knowledge. Perhaps more importantly, correction of answers is entirely objective and comparatively easy. Large numbers of scripts can be objectively tested in a short space of time.
Objective tests can also be an effective teaching tool. The topics covered in each chapter are logically sequenced so that as the student progresses through the chapter they build up their know¬ledge and skills in relation to that topic. In addition, the book emphasises problem areas and attempts to help students avoid common mistakes in financial accounting. Thus the tutor can indicate the correct solution and also explain or seek responses as to why other plausible answers are incorrect to the given statement. Such a process should ensure greater understanding of the topic under discussion.
This book is suitable for students taking introductory financial accounting examinations of the professional accountancy bodies, third level accounting students or other students studying introductory financial accounting courses. The three revision examinations at the end of this book are reproduced with the kind permission of the Institute of Chartered Accountants in Ireland.
03 14 brennan merkl davies accounting narratives and impression managementProf Niamh M. Brennan
This chapter examines impression management in accounting communication through four theoretical perspectives: economic, psychological, sociological, and critical. Impression management refers to organizations constructing impressions to appeal to audiences like shareholders and stakeholders. Discretionary accounting narratives in corporate reports are analyzed for seven communication choices that could constitute impression management. The chapter concludes by discussing implications for corporate reporting practice and suggestions for future research on how impression management may undermine reporting quality and influence stakeholder perceptions.
More Related Content
Similar to Brennan, Niamh [2005] Accounting Expertise in Litigation and Dispute Resolution, Journal of Forensic Accounting, VI (2): 13-35.
Ethics And The Trial Consultant And Expert WitnessCTIN
The document discusses the roles and responsibilities of trial consultants and expert witnesses. A trial consultant advises the attorney privately and their name and reports are confidential, while an expert witness prepares to testify in court and their name, CV, and reports must be disclosed. The document provides guidance on properly distinguishing between the roles and obligations of a trial consultant versus an expert witness.
Here are the six basic steps of an appeal:
1. Notice of Appeal - The losing party files a notice of appeal with the trial court clerk.
2. Record on Appeal - The clerk prepares the record of documents and transcripts from the trial for the appeals court.
3. Appellant's Brief - The appellant files a brief explaining any errors made in the trial court.
4. Appellee's Brief - The appellee, or opposing party, files a brief responding to the appellant's claimed errors.
5. Oral Argument - Each side may present oral arguments to a panel of appeals judges.
6. Decision - The appeals court issues a written decision either upholding or overturning the lower court's
The document discusses strategies for deposing opposing expert witnesses. It covers topics like getting the information needed from the deposition, reviewing the expert's file, conducting a Daubert examination, dealing with difficult witnesses, setting up the expert for cross-examination at trial, and laying the groundwork for impeachment. The goal is to undermine the expert's testimony and credibility before trial.
The document discusses who qualifies as a computer forensics expert. It defines computer forensics as the identification, preservation, extraction, interpretation and presentation of computer-related evidence. A computer forensics expert is a person with specialized skills and knowledge in this field, gained through training and experience. The document outlines standards from court cases like Daubert that determine what qualifications and methods are required for an expert's testimony to be considered admissible and reliable in court.
This document discusses the rules and principles regarding expert opinion evidence under Section 45 of the Malaysian Evidence Act 1950. It covers topics such as the qualification of experts, when expert evidence is needed, types of expert opinions, and the evidentiary value of expert opinions, particularly regarding handwriting analysis. The key points are:
1) Expert opinion is admissible when the court needs specialised knowledge on issues of foreign law, science, art or identity. Experts must be qualified through education, training or experience.
2) Expert evidence is only needed when the issue is beyond the knowledge of the judge. It cannot be conclusive and the court will consider it along with other evidence.
3) Handwriting analysis is considered the we
The document discusses the ethical and liability risks for lawyers who do not use computer-assisted legal research (CALR) technology such as Westlaw and LexisNexis. While there is no direct rule requiring the use of CALR, the standard of competent legal practice implies that lawyers must use tools that allow for thorough, efficient research. Failure to research issues adequately could lead to ethics violations, malpractice claims, or sanctions. As CALR has become ubiquitous and courts increasingly rely on it, not using these tools risks a lawyer failing to meet the standard of competent legal representation according to evolving practices.
Someone has rightly said, “Deposition is the core part of litigation”. An attorney heavily relies upon the testimony of the witnesses in order to prove the claim of the client and to demolish the claim of the opponent. The purpose of the testimony is to yield the truth. It helps in bringing out the actual veracity from the witnesses. The fate of the trial to a greater extent depends upon the depositions. Testimony is a technique to tacitly elucidate the correct version from a witness. Attorneys put across the questions to the witness so as to bring them to their desired statement in very scattered manners. This makes the deposition a lengthy affair.
Expert Witnesses: The Who, What, When And How Of Retaining Experts And Making...Howie, Sacks & Henry
Expert witnesses are an integral part of the litigation process. The majority of, if not all, personal injury claims involve the use of experts to assist with the resolution of a claim or to adduce evidence at trial.
This paper will focus on a) expert witness selection; b) the pitfalls of experts’ reports and how to avoid them; c) how to effectively prepare an expert for trial; and, d) how to frame the evidence at trial.
The document discusses various topics related to witness preparation by lawyers. It notes that witness preparation is not directly regulated and there is little case law or scholarly literature on the topic. While lawyers have a duty to zealously represent clients, they cannot knowingly assist witnesses to testify falsely or commit perjury. The document discusses challenges around distinguishing proper witness preparation from improper coaching. It also discusses techniques used in witness preparation like "the lecture" and debates around simultaneous witness interviews. Overall, the document examines the ethical boundaries and gray areas of lawyers preparing witnesses for testimony or deposition.
Reasonable Doubt...and Beyond - the case for defining the standard of proof i...Jonathan Rose
This document discusses the standard of proof of "beyond reasonable doubt" in criminal trials in Victoria. It begins by outlining the common law position that judges should not define "beyond reasonable doubt" for juries, as any doubt a jury entertains is considered reasonable. However, psychological research suggests jurors may not inherently understand this standard as intended. The document then examines the legislative framework in Victoria, which mirrors the common law approach. Finally, it introduces that Part IV will analyze psychological research on juror comprehension of the standard of proof and how different definitions impact verdicts, with implications for whether "beyond reasonable doubt" should be defined for juries in Victoria.
The document discusses expert testimony on gangs in criminal trials. It provides information on qualifying as a gang expert witness, including necessary training, experience and qualifications. It also covers acceptable and unacceptable expert opinions on gang evidence, the use of hearsay in forming opinions, and challenges to expert testimony such as bias.
The document discusses expert testimony and expert witnesses. It begins by introducing the general rule that witness opinions and inferences are inadmissible in court. It then discusses exceptions for lay witness opinions and expert opinions. It defines who an expert is and their functions. The document outlines the history of expert evidence and discusses identifying experts and exclusionary rules for expert testimony. In summary, the document provides an overview of the rules and principles regarding expert testimony and expert witnesses in court.
Single Asset Real Estate Cases (Series: Ethical Issues in Real Estate-Based B...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization. But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parities have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2020/
2005-01-18 CBA JR Record and Affidavit ArticleScott McCrossin
The document discusses the proper use of affidavits on judicial review applications in Nova Scotia courts. It begins by explaining the limited scope of judicial review, noting that courts aim to ensure the propriety of decision-making processes rather than determine if decisions were correct. It then discusses what constitutes the "record" in a judicial review proceeding in Nova Scotia, including transcripts, exhibits, and documents before the tribunal. The document aims to determine what further material beyond the record, such as affidavits, may be properly submitted on judicial review applications.
CASE INFORMATIONFind a court case where the company indicated t.docxcowinhelen
CASE INFORMATION:
Find a court case where the company indicated they were surprised the employee charged was a fraudster (use the *KU library (Westlaw) to find the court case).
ANALYSIS REQUIREMENTS:
Based on your readings, literature, and/or the Fraud Examiners Manual analyze the case and include the following in your discussion:
What type of fraud schemes took place in this case?
Analyze the internal controls of this company for "red flags".
Identity why you think the company did not suspect this person was a fraudster and what policies would you put in place for this company to stop this fraud in the future?
WRITING REQUIREMENTS:
· 3-5 pages (not including title page, abstract, or reference page)
· Proper APA format
· Minimum of 3 scholarly sources (not including your textbook)
GRADING REQUIREMENTS:
Click on link to view grading requirements
AUGHT IN THE CROSSFIRE: THE (SUPPOSEDLY) INNOCENT ATTORNEYS WHO REPRESENT ACCUSED FRAUDSTERS
Editor's Note:This article is the second in a series calling for a more aggressive response to bankruptcy and other fraud. The first in the series was initially published in the May 2009 issue, entitled “A Call to Arms: A Bankruptcy Fraud Superfund.”
In law school, we were taught that when representing a person accused of committing a crime, we're never to ask, “did you do it?” From “innocent until proven guilty” to “representation for all,” the axiom was not to know whether the client “did it,” but instead to protect the rights of the accused, even if they did do it. While this ideology is arguably consistent with the will of our forefathers, recall that the context is criminal defense. What's more, the ideology is not without obvious limits in its application, criminally or civilly. Based on my personal experience, many civil lawyers honor the principle of “don't ask, don't tell” to an extreme--and in so doing, have exceeded the limits and crossed the boundary line of ethical conduct.
Before digging too deep into the ethics, though, let's consider a particular criminal defense attorney. The case was an involuntary bankruptcy under §303, and my creditor client successfully obtained the appointment of a gap trustee, more elusive than The Loch Ness Monster herself. The gap trustee and my client then secured an ex parte order for an unannounced inspection of the target's offices. After forcing the target and his staff out the door for a spell, the target hurriedly brought in both bankruptcy and criminal defense counsel. At the conclusion of the hearing that resulted in the denial of a motion to reconsider the judge's order to allow the inspection, the just-hired criminal defense counsel quipped in the hallway outside the courtroom, “sheesh, I guess you guys don't have due process in bankruptcy courts.”
Well, yes, as a matter of fact we do, but when counsel starts going on about how innocent his client is, how we're “making a big mistake” because his client has no money and that.
The document discusses ethics and civil procedure for Malaysian judges. It summarizes principles from English case law that establish an advocate's duty to the court is paramount and overrides obligations to clients. This duty includes not misleading the court, presenting facts fairly, and citing all relevant law, even if against the client. The document emphasizes that ethical behavior and integrity are important for advocates and judges to maintain trust in the justice system.
Appreciation of evidence and Types of Witness.pptxsrikarna235
Admissibility of Evidence
Types of Witness
Accomplice
Witness Protection Scheme
Police Witness
Admissibility of Admission and Confession
Difference between S.123 & S.124
Burden of Proof
Adversarial and inquisitorial systems of justice have blurred distinctions, but key differences remain. In adversarial systems, parties are responsible for evidence and trials determine truth, while inquisitorial systems have faith in pre-trial processes and greater presumption of guilt. Adversarial systems allow prosecutorial discretion and guilty pleas to avoid trial, whereas inquisitorial systems limit discretion and continue trial processes regardless of accused's wishes. The nature of trials also differs, with adversarial trials having parties call witnesses and cross-examine, while inquisitorial trials are judge-led with fewer evidentiary rules. Victims also have a more recognized role in inquisitorial pre-trial investigations and trials.
This document summarizes the changing role of expert witnesses in court. It discusses how expert witnesses are traditionally expected to say whatever can reasonably support the client's position, rather than provide objective assistance. Courts have taken a more aggressive role in screening out "junk" testimony. One reform is the "gatekeeper" role of judges to exclude dubious expertise, based on criteria like testing and peer review. However, studies show judges rarely discuss these criteria and more often exclude evidence based on relevance or witness qualifications. There is a clash between the legal system's need for settled conclusions and experts' view that some issues have no settled answer. Through screening and cross-examination, the legal process does not always succeed at exposing problematic expert testimony that could lead
Similar to Brennan, Niamh [2005] Accounting Expertise in Litigation and Dispute Resolution, Journal of Forensic Accounting, VI (2): 13-35. (20)
Brennan, Niamh and Clarke, Peter [1985] Objective Tests in Financial Accounti...Prof Niamh M. Brennan
A multiple choice questionnaire (MCQ) style examination typically consists of 20/30 short statements, each of which is followed by a number of alternative answers. Only one answer is strictly correct. This allows the examiner to mark candidates' responses in an objective rather than subjective fashion. This style of examination question has recently been adopted by the Institute of Chartered Accountants in Ireland and is also used in third level institutions.
MCQs have a number of advantages over traditional examination formats. First, they allow the examiner to ask questions on every topic on the syllabus and thus test the candidates range of knowledge. Perhaps more importantly, correction of answers is entirely objective and comparatively easy. Large numbers of scripts can be objectively tested in a short space of time.
Objective tests can also be an effective teaching tool. The topics covered in each chapter are logically sequenced so that as the student progresses through the chapter they build up their know¬ledge and skills in relation to that topic. In addition, the book emphasises problem areas and attempts to help students avoid common mistakes in financial accounting. Thus the tutor can indicate the correct solution and also explain or seek responses as to why other plausible answers are incorrect to the given statement. Such a process should ensure greater understanding of the topic under discussion.
This book is suitable for students taking introductory financial accounting examinations of the professional accountancy bodies, third level accounting students or other students studying introductory financial accounting courses. The three revision examinations at the end of this book are reproduced with the kind permission of the Institute of Chartered Accountants in Ireland.
03 14 brennan merkl davies accounting narratives and impression managementProf Niamh M. Brennan
This chapter examines impression management in accounting communication through four theoretical perspectives: economic, psychological, sociological, and critical. Impression management refers to organizations constructing impressions to appeal to audiences like shareholders and stakeholders. Discretionary accounting narratives in corporate reports are analyzed for seven communication choices that could constitute impression management. The chapter concludes by discussing implications for corporate reporting practice and suggestions for future research on how impression management may undermine reporting quality and influence stakeholder perceptions.
Brennan, Niamh M., Merkl-Davies, Doris M., and Beelitz, Annika [2013] Dialogi...Prof Niamh M. Brennan
We conceptualise CSR communication as a process of reciprocal influence between organisations and their audiences. We use an illustrative case study in the form of a conflict between firms and a powerful stakeholder which is played out in a series of 20 press releases over a two-month period to develop a framework of analysis based on insights from linguistics. It focuses on three aspects of dialogism, namely (i) turn-taking (co-operating in a conversation by responding to the other party), (ii) inter-party moves (the nature and type of interaction action characterising a turn i.e., denial, apology, excuse), and (iii) intertextuality (the intensity and quality of verbal interaction between the parties). We address the question: What is the nature and type of verbal interactions between the parties? First we examine (a) whether the parties verbally interact and then (b) whether the parties listen to each other.
We find evidence of dialogism suggesting that CSR communication is an interactive process which has to be understood as a function of the power relations between a firm and a specific stakeholder. Also, we find evidence of intertextuality in the press releases by the six firms which engage in verbal interaction with the stakeholder. We interpret this as linguistic evidence of isomorphic processes relating to CSR practices resulting from the pressure exerted by a powerful stakeholder. The lack of response by ten firms that fail to issue press releases suggests a strategy of ‘watch-and-wait’ with respect to the outcome of the conflict.
Brennan, Niamh M. and Flynn, Maureen A. [2013] Differentiating Clinical Gover...Prof Niamh M. Brennan
This document proposes new definitions to distinguish between clinical governance, clinical management, and clinical practice. It analyzes 29 existing definitions of "clinical governance" and finds they confuse governance, management, and practice roles. The document suggests 3 new separate definitions: clinical governance focuses on accountability, oversight, and setting standards; clinical management focuses on efficient service delivery through processes and resources; and clinical practice focuses on delivering high-quality care. Clearer distinctions between these roles could help implement clinical governance more effectively.
Brennan, Niamh M. and Conroy, John P. [2013] Executive Hubris: The Case of a ...Prof Niamh M. Brennan
Purpose – Can personality traits of Chief Executive Officers (CEOs) be detected at-a-distance? Following newspaper speculation that the banking crisis of 2008 was partly caused by CEO hubris, this paper analyses the CEO letters to shareholders of a single bank over ten years for evidence of CEO personality traits, including: (i) narcissism (a contributor to hubris), (ii) hubris, (iii) overconfidence and (iv) CEO-attribution. Following predictions that hubris increases the longer individuals occupy positions of power, the research examines whether hubristic characteristics intensify over time.
Design/methodology/approach – This paper takes concepts of hubris from the clinical psychology literature and applies them to discourses in CEO letters to shareholders in annual reports. The research comprises a longitudinal study of the discretionary narrative disclosures in the CEO letters to shareholders in eight annual reports, benchmarked against disclosures in the CEO letters to shareholders of the previous and subsequent CEOs of the same organisation.
Findings – Results point to evidence of narcissism and hubris in the personality of the Bank CEO. Over half the sentences analysed were found to contain narcissistic-speak. In 45% of narcissistic-speak sentences, there were three of more symptoms of hubris – what Owen and Davison (2009) describe as extreme hubristic behavior. In relation to CEO overconfidence, only seven (2%) sentences contained bad news. More than half of the good news was attributed to the CEO and all the bad news was attributed externally. The research thus finds evidence of hubris in the CEO letters to shareholders, which became more pronounced the longer the CEO served.
Research limitations/implications – The analysis of CEO discourse is highly subjective, and difficult to replicate.
Originality/value – The primary contribution of this research is the adaptation of the 14 clinical symptoms of hubris from clinical psychology to the analysis of narratives in CEO letters to shareholders in annual reports to reveal signs of CEO hubris.
Craig, Russell J. and Brennan, Niamh M. [2012] An Exploration of the Relation...Prof Niamh M. Brennan
This paper proposes a taxonomy to assist in more clearly locating research on aspects of the association between corporate reputation and corporate accountability reporting. We illustrate how our proposed taxonomy can be applied by using it to frame our exploration of the relationship between measures of reputation and characteristics of the language choices made in CEO letters to shareholders. Using DICTION 5.0 software we analyse the content of the CEO letters of 23 high reputation US firms and 23 low reputation US firms. Our results suggest that company size and visibility each have a positive influence on the extent to which corporate reputation is associated with the language choices made in CEO letters. These results, which are anomalous when compared with those of Geppert and Lawrence (2008), highlight the need for caution when assessing claims about the effects on corporate reputation arising from the language choice in narratives in corporate annual reports.
Merkl-Davies and Brennan A Conceptual Framework of Impression Management: New...Prof Niamh M. Brennan
In this paper we develop a conceptual framework, based on the concepts of rationality and motivation, which uses theories and empirical research from psychology/behavioural finance, sociology and critical accounting to systematise, advance and challenge research on impression management. The paper focuses on research which departs from economic concepts of impression management as opportunistic managerial discretionary disclosure behaviour resulting in reporting bias or as ‘cheap talk’. Using alternative rationality assumptions, such as bounded rationality, irrationality, substantive rationality and the notion of rationality as a social construct, we conceptualise impression management in alternative ways as (i) self-serving bias, (ii) symbolic management and (iii) accounting rhetoric. This contributes to an enhanced understanding of impression management in a corporate reporting context.
Brennan, Niamh [1996] Disclosure of Profit Forecasts during Takeover Bids. Do...Prof Niamh M. Brennan
This thesis examines disclosure of 250 profit forecasts in 701 UK takeover bids in the period 1988 to 1992 against five research issues:
• Factors influencing disclosure of forecasts
• Influence of prevailing market expectations
• Effect of disclosure of forecasts on the outcome of bids
• Factors influencing disclosure content in forecasts
• Whether forecasts disclosed convey good news
Logit analysis and negative binomial regression are the two primary statistical techniques used to analyse the results.
Results show the domination of the takeover-context of the research. Two variables accounted for almost all the influence on disclosure of forecasts for both bidders and targets: bid horizon and type of bid. Probability of disclosure of a forecast is greater the shorter the bid horizon and during contested bids.
In addition to bid horizon and type of bid, for bidders, year, value of bid and purchase consideration were significant, and for targets value of bid and industry were significant in one of the two models estimated.
Evidence supporting the hypothesis that forecast disclosure is more likely when market expectations are out of line with actual results is provided.
There is some evidence that forecasts by targets affect the outcome of bids, but there is no such evidence for bidders.
Takeover-context variables and forecast-related variables were most relevant in determining disclosures in forecasts. Disclosure content in forecasts was significantly greater during contested bids, in voluntary forecasts and in longer period forecasts. Significantly more assumptions were disclosed by target forecasters and in longer horizon forecasts.
Evidence shows a tendency to disclose good news, with some disclosure of bad news. Good news forecasts are more likely during contested bids. Targets are more likely to disclose bad news forecasts, but when bidders disclose bad news it tends to be worse on average than targets’ bad news.
Merkl-Davies, Doris M., Brennan, Niamh M. and McLeay, Stuart J. [2011] Impres...Prof Niamh M. Brennan
Purpose – Prior accounting research views impression management predominantly though the lens of economics. Drawing on social psychology research, we provide a complementary perspective on corporate annual narrative reporting as characterised by conditions of ‘ex post accountability’ (Aerts, 2005, p. 497). These give rise to (i) impression management resulting from the managerial anticipation of the feedback effects of information and/or to (ii) managerial sense-making by means of the retrospective framing of organisational outcomes.
Design/methodology/approach – We use a content analysis approach pioneered by psychology research (Newman et al., 2003) which is based on the psychological dimension of word use to investigate the chairmen’s statements of 93 UK listed companies.
Findings – Results suggest that firms do not use chairmen’s statements to create an impression at variance with an overall reading of the annual report. We find that negative organisational outcomes prompt managers to engage in retrospective sense-making, rather than to present a public image of organisational performance inconsistent with the view internally held by management (self-presentational dissimulation). Further, managers of large firms use chairmen’s statements to portray an accurate (i.e., consistent with an overall reading of the annual report), albeit favourable, image of the firm and of organisational outcomes (i.e., impression management by means of enhancement).
Research limitations – The content analysis approach adopted in the study analyses words out of context.
Practical implications – Corporate annual reporting may not only be understood from a behavioural perspective involving managers responding to objectively determined stimuli inherent in the accountability framework, but also from a symbolic interaction perspective which involves managers retrospectively making sense of organisational outcomes and events.
Originality/value – Our approach allows us to investigate three complementary scenarios of managerial corporate annual reporting behaviour: (i) self-presentational dissimulation, (ii) impression management by means of enhancement, and (iii) retrospective sense-making.
Brennan, Niamh M., Daly, Caroline A. and Harrington, Claire S. [2010] Rhetori...Prof Niamh M. Brennan
This exploratory study extends the analysis of narrative disclosures from routine reporting contexts such as annual reports and press releases to non-routine takeover documents where the financial consequences of narrative disclosures can be substantial. Rhetoric and argument in the form of impression management techniques in narrative disclosures are examined. Prior thematic content analysis methods for analysing good and bad news disclosures are adapted to the attacking and defensive themes in the defence documents of target companies subject to hostile takeover bids. The paper examines the incidence, extent and implications of impression management in ten hostile takeover defence documents issued by target companies listed on the London Stock Exchange between 1 January 2006 and 30 June 2008. Three impression management strategies – thematic, visual and rhetorical manipulation – are investigated using content analysis methodologies. The findings of the research indicate that thematic, visual and rhetorical manipulation is evident in hostile takeover defence documents. Attacking and defensive sentences were found to comprise the majority of the defence documents analysed. Such sentences exhibited varying degrees of visual and rhetorical emphasis, which served to award greater or lesser degrees of prominence to the information conveyed by target company management.
While exploratory in nature, this paper concludes with suggestions for future more systematic research allowing for greater generalisations from the findings.
Brennan, Niamh M., Guillamon-Saorin, Encarna and Pierce, Aileen [2009] Impres...Prof Niamh M. Brennan
Purpose – This paper develops a holistic measure for analysing impression management and for detecting bias introduced into corporate narratives as a result of impression management.
Design/methodology/approach – Prior research on the seven impression management methods in the literature is summarised. Four of the less-researched methods are described in detail, and are illustrated with examples from UK Annual Results’ Press Releases (ARPRs). A method of computing a holistic composite impression management score based on these four impression management methods is developed, based on both quantitative and qualitative data in corporate narrative disclosures. An impression management bias score is devised to capture the extent to which impression management introduces bias into corporate narratives. An example of the application of the composite impression management score and impression management bias score methodology is provided.
Findings – While not amounting to systematic evidence, the 21 illustrative examples suggest that impression management is pervasive in corporate financial communications using multiple impression management methods, such that positive information is exaggerated, while negative information is either ignored or is underplayed.
Originality/value – Four impression management methods are described in detail, illustrated by 21 examples. These four methods are examined together. New impression management methods are studied in this paper for the first time. This paper extends prior impression management measures in two ways. First, a composite impression management score based on four impression management techniques is articulated. Second, the composite impression management score methodology is extended to capture a measure for bias, in the form of an impression management bias score. This is the first time outside the US that narrative disclosures in press releases have been studied.
Brennan, Niamh M. and Solomon, Jill [2008] Corporate Governance, Accountabili...Prof Niamh M. Brennan
Purpose – This paper reviews traditional corporate governance and accountability research, to suggest opportunities for future research in this field. The first part adopts an analytical frame of reference based on theory, accountability mechanisms, methodology, business sector/context, globalisation and time horizon. The second part of the paper locates the seven papers in the special issue in a framework of analysis showing how each one contributes to the field. The paper presents a frame of reference which may be used as a 'roadmap' for researchers to navigate their way through the prior literature and to position their work on the frontiers of corporate governance research.
Design/methodology/approach – The paper employs an analytical framework, and is primarily discursive and conceptual.
Findings – The paper encourages broader approaches to corporate governance and accountability research beyond the traditional and primarily quantitative approaches of prior research. Broader theoretical perspectives, methodological approaches, accountability mechanism, sectors/contexts, globalisation and time horizons are identified.
Research limitations/implications – Greater use of qualitative research methods are suggested, which present challenges particularly of access to the “black box” of corporate boardrooms.
Originality/value – Drawing on the analytical framework, and the papers in the special issue, the paper identifies opportunities for further research of accountability and corporate governance.
Merkl-Davies, Doris M. and Brennan, Niamh M. [2007] Discretionary Disclosure ...Prof Niamh M. Brennan
This paper reviews and synthesizes the literature on discretionary narrative disclosures. We explore why, how, and whether preparers of corporate narrative reports use discretionary disclosures in corporate narrative documents and why, how, and whether users react thereto. To facilitate the review, we provide three taxonomies based on: the motivation for discretionary narrative disclosures (opportunistic behavior, i.e. impression management, versus provision of useful incremental information); the research perspective (preparer versus user); and seven discretionary disclosure strategies.
Brennan, Niamh M. and McGrath, Mary [2007] Financial Statement Fraud: Inciden...Prof Niamh M. Brennan
This document summarizes a research paper that studied 14 cases of financial statement fraud from the US and Europe. It found that senior management was usually responsible, and the most common method of fraud was recording false sales to meet external earnings forecasts. Fraud was typically discovered by management, either existing or new management taking over.
Brennan, Niamh and Kelly, John [2007] A Study of Whistleblowing Among Trainee...Prof Niamh M. Brennan
Over the last number of years whistleblowers have been gaining prominence. This paper investigates some of the factors that influence the propensity or willingness to blow the whistle among trainee auditors. Three categories of factors are examined: audit firm organisational structures, personal characteristics of whistleblowers and situational variables.
A survey of 240 final year students of the Institute of Chartered Accountants in Ireland was undertaken. Trainee auditors (just about to sit their finals) were asked about their confidence in internal and external reporting structures in their firms. Using four scenarios, audit trainees were questioned on their willingness to challenge an audit partner’s inappropriate response to concerns raised during the audit. Finally, audit trainees were asked about the influence of legal protection on their likelihood of whistleblowing.
Results indicate that where firms have adequate formal structures for reporting wrongdoing, trainee auditors are more likely to report wrongdoing and have greater confidence that this will not adversely affect their careers. Training increases this confidence. Trainee auditors also express a willingness to challenge an audit partner’s unsatisfactory response to wrongdoing. Significant differences were found in attitudes depending on whether the reports of wrongdoing were internal or external. The willingness to report wrongdoing externally reduces for older (aged over 25) trainees.
Brennan, Niamh [2006] Boards of Directors and Firm Performance: Is there an E...Prof Niamh M. Brennan
Reflecting investor expectations, most prior corporate governance research attempts to find a relationship between boards of directors and firm performance. This paper critically examines the premise on which this research is based. An expectations gap approach is applied for the first time to implicit expectations which assume a relationship between firm performance and company boards. An expectations gap has two elements: A reasonableness gap and a performance gap. Seven aspects of boards are identified as leading to a reasonableness gap. Five aspects of boards are identified as leading to a performance gap. The paper concludes by suggesting avenues for empirically testing some of the concepts discussed in this paper.
Brennan, Niamh and Gray, Sidney J. [2005] The Impact of Materiality: Accounti...Prof Niamh M. Brennan
This paper comprises a review of the literature on materiality in accounting. The paper starts by examining the context in which materiality is relevant, and the problems arising from applying the concept in practice. Definitions of materiality from legal, accounting and stock exchange sources are compared. The relevance of materiality to various accounting situations is discussed. Methods of calculating quantitative thresholds are described and illustrated. Prior research is reviewed, focussing on materiality thresholds, and on the materiality judgments of auditors, preparers and financial statement users. The paper concludes with some suggestions for future research and for policy makers concerning this best kept accounting secret.
Brennan, Niamh and McDermott, Michael [2004] Alternative Perspectives on Inde...Prof Niamh M. Brennan
This paper examines the issue of independence of boards of directors and non-executive direc¬tors of companies listed on the Irish Stock Exchange. Based on information published in annual reports, the study found that most Irish listed companies were complying with the Combined Code’s recommendations for a balanced board structure, albeit with only 60 per cent having majority-independent boards. The study found a lack of consistency in inter-preting the definition of “independence”, a lack of disclosure of information and, by apply¬ing criteria generally regarded as prerequisite to independence of non-executive directors, certain situations which imposed upon their independence.
Brennan, Niamh [2003] Accounting in crisis: A story of auditing, accounting, ...Prof Niamh M. Brennan
Recent accounting scandals are the product of multiple failings of auditing, accounting, corporate governance and of the market. In discussing the many factors that led to failure, this paper attempts to provide insights on regulatory inadequacies that contributed to these problems. At the centre is human failure – in particular greed and weakness. Reforms in progress are briefly examined, with the caveat that no reforms will ever fully cater for human weakness.
Brennan, Niamh [2001] Reporting Intellectual Capital in Annual Reports: Evide...Prof Niamh M. Brennan
This paper examines the extent to which a sample of 11 knowledge-based Irish listed companies is adopting methodologies for reporting of intellectual capital in their annual reports. Their market and book values were compared and a content analysis of the annual reports of the 11 listed companies was conducted. With the exception of two of the 11 listed companies, significant differences in market and book values were found suggesting that knowledge-based Irish listed companies have a substantial level of non-physical, intangible, intellectual capital assets. The level of disclosure of intellectual capital attributes by the 11 listed companies studied was low.
Profiles of Iconic Fashion Personalities.pdfTTop Threads
The fashion industry is dynamic and ever-changing, continuously sculpted by trailblazing visionaries who challenge norms and redefine beauty. This document delves into the profiles of some of the most iconic fashion personalities whose impact has left a lasting impression on the industry. From timeless designers to modern-day influencers, each individual has uniquely woven their thread into the rich fabric of fashion history, contributing to its ongoing evolution.
During the budget session of 2024-25, the finance minister, Nirmala Sitharaman, introduced the “solar Rooftop scheme,” also known as “PM Surya Ghar Muft Bijli Yojana.” It is a subsidy offered to those who wish to put up solar panels in their homes using domestic power systems. Additionally, adopting photovoltaic technology at home allows you to lower your monthly electricity expenses. Today in this blog we will talk all about what is the PM Surya Ghar Muft Bijli Yojana. How does it work? Who is eligible for this yojana and all the other things related to this scheme?
Prescriptive analytics BA4206 Anna University PPTFreelance
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IMPACT Silver is a pure silver zinc producer with over $260 million in revenue since 2008 and a large 100% owned 210km Mexico land package - 2024 catalysts includes new 14% grade zinc Plomosas mine and 20,000m of fully funded exploration drilling.
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Brennan, Niamh [2005] Accounting Expertise in Litigation and Dispute Resolution, Journal of Forensic Accounting, VI (2): 13-35.
1. Accounting Expertise in Litigation and Dispute Resolution
Niamh Brennan
University College Dublin
(Published in Journal of Forensic Accounting, VI (2): 13-35)
2. Abstract
This paper looks at the role of experts from both a United Kingdom and North
America perspective. The paper starts by pointing out the important role of expert
evidence in assisting the tier of fact. The distinction between accountants as fact
witnesses and as expert witnesses is identified. The expert’s primary obligation is to
the court not the hiring party. Expert evidence is not a substitute for the exercise of
the court’s own judgement. The qualities of expert evidence are discussed, as are the
significance of the necessary qualities of such expert evidence. A lack of these
qualities increases the likelihood that civil liability will be imposed on expert
witnesses. The paper outlines the steps to be taken in engaging expert accountants.
3. This paper examines the role of expert witnesses generally, and specifically the role of
accounting experts. The discussion is informed by UK common law, supplemented by
references to cases and court rules from North America. The qualities of expert
evidence, and civil liabilities applying to expert witnesses, are outlined. Cases (both
those that go to court, and pre-trial proceedings) can benefit from accounting experts
in a variety of ways which are summarized. Somewhat different professional
standards apply to expert witnesses, compared with those applicable to other types of
accounting assignments. The process of selecting and engaging accounting experts,
including the matters to be included in engagement letters, is considered. The paper
concludes with a discussion of accountants’ fees in forensic accounting assignments.
ROLE OF EXPERT WITNESSES
An expert witness is one whose opinion a court or other tribunal is prepared to admit as
evidence for the purpose of assisting in the resolution of a dispute or in arriving at the
truth, and whose opinion is based on the application of particular expertise and
knowledge to the relevant facts.
However, the courts have made it clear that expert evidence is never a substitute for
the exercise by a court of its own judgment. Expert evidence is regarded as an
ingredient (often a very important one) of the case to be used by the court to assist in
arriving at a decision, but a court cannot abdicate its function in favour of an expert. A
classic statement of the role of expert evidence is to be found in Beven (1908) on
Negligence (p. 131) which states:
“To justify the admission of expert testimony two elements must co-exist:
(1) The subject matter of the inquiry must be such that ordinary people are unlikely to
form a correct judgment about it, if unassisted by persons with special knowledge.
(2) The witness offering expert evidence must have gained his special knowledge by a
course of study or previous habit which secures his habitual familiarity with the
matter in hand”.
Courts are increasingly codifying rules to create express duties on experts to be
impartial. While an expert needs to reconcile these rules with his or her duty to act in
their instructing party’s best interests, the court’s intention is that the duty to the client
is secondary to the higher duty to the court. The function of an expert witness is to
assist the court in arriving at the truth by providing a skilled expert assessment of
matters requiring a specialised appreciation of the particular problem at issue.
Role of experts in the UK
Under Civil Procedure Rule 35.1 expert evidence shall be restricted to that which is
reasonably required to resolve the proceedings. Under rule 35.4 no party may call an
expert or put in evidence an expert’s report without the court’s permission. The
position has always been that the expert’s duty is to the court and not the side
employing them. This position has been reinforced in England and Wales under the
Civil Procedure Rules. Rule 35.3 states:
“(1) It is the duty of an expert to help the court on the matters within his expertise
(2) This duty overrides any obligation to the person from whom he has received
instructions or by whom he is paid.”
1
4. The fact that the expert’s first duty is to the court is further emphasised by the court’s
right under rule 35.7. When two or more parties wish to submit expert evidence on a
particular issue, the court can direct that one expert only give the evidence.
The practice of the courts is to permit expert evidence where there is a material matter
at issue between the parties the understanding or explanation of which would fall
outside the general level of knowledge and expertise normal in society. In court
proceedings, an expert’s opinion will, in general, be admissible unless the subject
matter does not require specialist knowledge. Expert evidence, however, is not
conclusive. The judge is the sole and final arbiter. Both the value of expert accounting
evidence, and the limits on the extent to which courts will defer to an expert
accountant’s opinion, were explained by Pennycuick V. C. in Odeon Associated
Theatres Ltd v. Jones:
“In order to ascertain what are the correct principles [of the prevailing system of
commercial accountancy] it has recourse to the evidence of accountants. That evidence is
conclusive on the practice of accountants in the sense of principles on which accountants
act in practice. That is a question of pure fact, but the court itself has to make a final
decision as to whether that practice corresponds to the correct principles of commercial
accountancy. No doubt in the vast proportion of cases the court will agree with the
accountants but it will not necessarily do so … At the end of the day the court must
determine what is the correct principle to be applied.”2
Only expert witnesses may provide expert opinions. In the legal environment, expert
testimony is rendered by a person who is qualified to speak authoritatively by reason
of special training, skill, study, experience observation, practice or familiarity with the
subject matter under consideration.
Role of experts in North America
Rule 702 of the US federal rules of evidence addresses the concept of testimony by
experts. Rule 702 allows expert testimony whenever it will “assist” the trier of fact.
The former rule was much more restrictive. It required that the expert testimony be
“necessary” for the trier of fact to understand the issues in trial. This liberalisation of
the rule allowing expert testimony has dramatically increased the use of experts. Rule
702 states:
“Testimony of experts. If scientific, technical or other specialised knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or education may testify thereto in the form of
an opinion or otherwise.”
The case of Daubert v. Merrell Dow Pharmaceuticals, Inc3 modified Rule 702 in the
case of scientific evidence. The modification arises from concerns at juries’ abilities
to understand complex scientific data and concerns on the misuse of scientific
evidence. Judges are now required first to assess the reliability of scientific evidence
before such evidence is admissible.
2
[1971] 2 All E.R. 407 at 414.
3
113 S.Ct. 2786 (1993).
2
5. In R. v. Mohan4 the Canadian Supreme Court elaborated on this requirement. There,
Sopinka J.J. stated that expert evidence must be both necessary in assisting the trier of
fact and relevant. Under the heading of “necessity in assisting the trier of fact” the
Court made it clear that expert evidence was not to be admitted if the subject of the
testimony concerned an issue which was within the common knowledge of the trier of
fact. In particular, Sopinka J.J. quoted approvingly from R. v. Turner5 in which
Lawton, L.J. concluded:
“An expert’s opinion is admissible to furnish the court with scientific information which
is likely to be outside the experience and knowledge of a judge or jury. If on the proven
facts a judge or jury can form their own conclusions without help, then the opinion of an
expert is unnecessary.”6
Similarly
“…the evidence must be necessary to enable the trier of fact to appreciate the matters in
issue due to their technical nature.”7
Qualities of expert evidence
The courts have variously commented on the qualities required of expert evidence.
The most important of these is that the evidence be unbiased and objective. In
addition, relevance, reliability and cost effectiveness of expert evidence are also
important considerations.
Unbiased, objective
Expert evidence should be objective and fair. Some experts will be inclined to tailor
their evidence to their client’s requirements and pay insufficient attention to the need
to be balanced and objective. This lack of objectivity, if not exposed by the opposing
expert’s challenge to what they are saying, will usually be perceived readily by the
trial judge in any event. In National Justice Companion Naviera S.A. v. Prudential
Assurance Co. Ltd Cresswell J. stated:
“An expert witness should provide independent assistance to the Court by way of
objective unbiased opinion in relation to matters within his expertise … An expert
witness in the High Court should never assume the role of an advocate.”8
In Whitehouse v. Jordan Lord Wilberforce said:
“Expert evidence presented to the court should be, and should be seen to be, the
independent product of the expert uninfluenced as to form or content by the exigencies
of litigation.”9
The role of the expert is to educate and inform decision-makers so that the truth is
revealed. It can be argued that the process of obtaining written reports, and
4
[1994] 2 S.C.R. 9 at 23.
5
[1975] Q.B. 834 at 841.
6
[1994] 2 S.C.R. 9 at 24.
7
ibid. at 23.
8
[1993] 2 Lloyd’s Rep. 68 at 81.
9
[1981] 1 W.L.R. 246 at 256.
3
6. examination and cross-examination of opposing experts is more likely to reveal the
truth than evidence from a single ‘neutral’ expert. In either case it is essential that
expert evidence be given with independence and impartiality.
It can be argued that bias is self-policing, since an overtly biased expert will soon lose
credibility within the professional community and not be called by other parties in
future cases. But such an argument may be fragile since the reality is that parties may
“shop around” for an expert who will best support their case. Furthermore, the
expert’s evidence may risk being coloured by a preexisting or continuing relationship
which may exist between the expert and the lawyer or the litigant. Nevertheless, an
expert is probably shortening his useful life significantly if he compromises his
independence.
Relevant
The significance of relevance can be seen from the following extract from R v.
Wilson10:
“… lack of relevance can be used to exclude evidence not because it has absolutely no
bearing upon the likelihood or unlikelihood of a fact in issue but because the connection
is considered to be too remote. Once it is regarded as a matter of degree, competing
policy considerations can be taken into account. These include the desirability of
shortening trials, avoiding emotive distractions of marginal significance, protecting the
reputations of those not represented before the Courts and respecting the feelings of a
deceased’s family. None of these matters would be determinative if the evidence in
question were of significant probative value.”
In R. v. Mohan the Court ruled that, prima facie, expert evidence was “relevant” if it
was “…so related to a fact in issue that it tends to establish it.” A more academic
definition of relevance is provided by Stephen (1946, p. 4) who says that any two
facts are relevant to each other if they are:
“…so related to each other that according to the common course of events one either
taken by itself or in connection with other facts proves or renders probable the past,
present, or future existence or non-existence of the other.”
Reliable
Expert evidence should be able to withstand close scrutiny to determine whether it is
“reliable”.
“[E]xpert evidence which advances a novel scientific theory or technique is subjected to
special scrutiny to determine whether it meets a basic threshold of reliability and whether
it is essential in the sense that the trier of fact will be unable to come to a satisfactory
conclusion without the assistance of the expert.”11
Cost effective
In the same case, the issue of cost-effectiveness of expert evidence was dealt with as
follows:
10
[1991] 2 N.Z.L.R. 707 at 711 per Fisher J.
11
R. v. Mohan [1994] 2 S.C.R. 9 at 25.
4
7. “Evidence that is otherwise logically relevant may be excluded … if it involves an
inordinate amount of time which is not commensurate with its value or if it is misleading
in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its
reliability.”12
Civil liability of expert witnesses
The previous section discussed the qualities of expert evidence. A lack of these
qualities increases the likelihood that civil liability will be imposed on expert
witnesses.
Expert witnesses have historically had significant protection from civil liability
through a litigation privilege granted to witnesses. Communications between clients
and their lawyers are privileged from production/discovery. Equally, communications
between a lawyer and an expert which arise after litigation has been contemplated or
commenced, and made with a view to such litigation, are privileged.
Two discrete concepts underlie this issue: immunity from suit from actions in
negligence, and immunity from suit from actions in defamation. A claimant who
alleges an expert has been negligent is obliged to demonstrate that fact. Immunity
from suit from actions in defamation is designed to ensure candor in court and
protects expert witnesses as witnesses of fact from exposure to defamation
proceedings. In defamation proceedings, once it is established that the evidence was
defamatory, the expert witness is prima facie liable and the burden falls on the expert
to demonstrate that the evidence was justified.
In an Irish case, M.P. v. A.P., Laffoy J. dealt with this immunity and went on to
consider whether witness immunity arising from evidence given in a civil case in
court extended to providing protection to the witness from professional disciplinary
proceedings:
“There is ample authority to support the proposition advanced by counsel for the
applicant that a witness is protected from civil proceedings, not merely an action for
defamation, in respect of his evidence in the witness box and statements made in
preparing evidence (Watson v. M'Ewan, Watson v. Jones [1905] A.C. 480; Marrinan v.
Vibart [1963] 1 Q.B. 528). While no authority has been cited which supports the
proposition that an expert witness is immune from disciplinary proceedings or
investigation by a voluntary professional organisation to which he is affiliated in respect
of evidence he has given or statements he has made with a view to their contents being
adduced in evidence, having regard to the public policy considerations which underlie the
immunity from civil proceedings - that witnesses should give their evidence fearlessly
and that a multiplicity of actions in which the value or truth of their evidence would be
tried over again should be avoided - in my view, such a witness or potential witness must
be immune from such disciplinary proceedings or investigation.”13
Rule 35.3(1) of the UK Civil Procedure Rules provides that an expert witness owes an
overriding duty to the court. The leading authority on this issue in the UK is the court
of appeal decision in Stanton v. Callaghan. It was accepted that, without immunity, an
expert, like any other witness, might be inhibited from giving fair and truthful
12
ibid. at 21.
13
[1996] 1 I.R. 144, at 155 – 156.
5
8. evidence to the court. It was also decided that immunity is necessary for the orderly
conduct of the court process. Thus, in the UK an expert witness is immune from suit
in respect of anything he says in court, and this protection extends to the contents of
the expert’s report which is adopted or incorporated in his evidence. If the expert’s
report is for the purpose of a trial the expert is immune from suit, even if he does not
give evidence in court. The law provides for absolute immunity from clients over
expert evidence given to the court. In other words, experts have ‘free reign’ to make
whatever statements they feel inclined to make.
This immunity, however, does not extend to advice to a client on the merits of the
case. A claim by a client in respect of advice given in the context of pending litigation
may be successful.
The current trend in the US is to exclude negligence of friendly expert witnesses from
the litigation privilege. A significant recent case is Mattco Forge Inc. v. Arthur Young
& Co.14 In 1992, a California court of appeals decided that statutory litigation
privilege that protects lawyers, judges, jurors, witnesses and other court personnel
from liability arising from publications made during a judicial proceeding does not
apply to claims of negligence of the expert by the party who hired the expert. The
court ruled that an expert could not assert a statutory litigation privilege against his
own client. The court reasoned that the litigation privilege applies to adverse
witnesses but not to friendly witnesses. Thus, as a result of the above decision, in the
US a client may sue a forensic accountant who provides expert witness services and
the applicable professional standards of the accounting profession may determine the
appropriate standards of care.
The case suggests that expert witnesses may be subject to civil liability. Careful
attention to matters such as engagement letter preparation (see below) may be helpful
in avoiding civil liability, controlling legal expense and reducing professional liability
insurance costs.
ACCOUNTANTS AS EXPERT WITNESSES
Accountants may appear in court in one of two situations: when giving evidence of
fact and when acting as expert witnesses in giving opinion evidence. This important
distinction between the two situations is explained below.
Specialist as witness of fact
Forensic accountants can act as witnesses of fact where they can state as a fact, from
their own knowledge and examination of a particular item, that a certain event or
sequence of events occurred in a particular instance. Generally speaking, an ordinary
witness providing testimony in court can only give evidence of fact, e.g. what they
saw, heard, tasted, smelt, touched – facts collected by one of the five senses.
Accountants acting as witnesses of fact should provide evidence in court based on
what happened, not on supposition. They are not permitted to speculate or to give an
opinion as to the circumstances leading up to an event they have witnessed.
14
60 Cal. Rptr. 2d 780 (1997) (CA).
6
9. Specialist as expert witness who gives evidence of opinion
Forensic accountants also act as expert witnesses and in that role they can, from their
own knowledge and experience, give an opinion as to why a certain event or sequence
of events did or did not occur. The trial judge will decide when a witness is allowed to
give expert opinion. Expert witnesses may be called upon to state their opinion on a
matter within their specialised knowledge and skill where the court itself cannot form
an opinion from the facts. Forensic accountants often present highly technical material
to courts in terminology they can understand.
Discovery assistance
Litigation often depends on documents to prove or disprove issues at trial. An integral
pre-trial procedure is discovery of documents, including financial records. Forensic
accountants can assist and advise in finding, understanding and explaining
information from such documentation. The knowledge of financial documents can
assist the lawyers in formulating requests for discovery.
Document management
Forensic accountants can assist in organising and summarising large volumes of data.
In addition they can provide expert advice on management systems, including
computer systems.
Understanding the other side’s case
Forensic accountants can assist the lawyers during a trial in framing questions to be
asked in cross-examination. Aspects to consider are the opposing expert’s report and
its strength and weaknesses, information about the opposing side’s forensic
accountant and providing assistance in interpreting the opposing expert’s responses in
cross-examination.
Proof of financial facts
Experts can help develop proof of financial facts. These can be used in court to
explain issues or transactions. In addition, they may be the basis for facts or
assumptions included in the expert accountant’s opinion.
Computation of damages
Forensic accountants often advise in the computation of damages such as actual losses
incurred, expected future losses, business valuations etc.
PROFESSIONAL STANDARDS IN A LITIGATION ENVIRONMENT
In providing expert evidence, experts are expected to observe professional standards
in the conduct of their work. Some of these have been discussed already – experts
should be fair, unbiased and objective, and should present evidence that is relevant,
reliable and cost effective.
7
10. Codes of professional conduct
A number of expert witness organisations have codes of practice governing the
conduct of their members. A good example is the code of the British Academy of
Experts (available at www.academy-experts.org). The National Association of
Forensic Economists also provides interesting guidance on the ethical requirements
applicable to experts (available at http://nafe.net/communication/ethics.htm).
Conflict of interest and expert accountants
Ethical considerations impose on experts an obligation to disclose to their instructing
lawyer in advance of each assignment any personal or financial circumstances which
might influence work for the client in any way not stated or implied in the
instructions. Any actual or potential conflict of interest should be reported to the
lawyer as soon as it is raised or becomes apparent and, if necessary, the assignment
should be declined or terminated. Particularly important are:
• Any directorship or controlling interest in any business in competition with the
client;
• Any financial or other interest in goods or services (including software) under
dispute;
• Any personal relationship with any individual involved in the matter;
• Existence of any other client of the expert with competing interests.
Professional regulations
The American Institute of Certified Public Accountants (1993) has published a
decision tree to assist practitioners in reviewing potential issues relevant to evaluating
a conflict of interest in a litigation service engagement. Consideration of conflicts of
interests in the context of engagement letters is dealt with further on.
Case law
Judicial attitude to conflict of interest can be traced back at least to the mid-nineteenth
century, when Cranworth L.C. said in Aberdeen Railway Company v. Blaikie Bros:
“It is a rule of universal application, that no one, having such duties to discharge, shall be
allowed to enter into engagements in which he has, or can have, a personal interest
conflicting, or which may possibly conflict, with the interests of those whom he is bound
to protect.”15
It is important to note that there need not be an actual conflict of interest in order to
present a problem – the perception, in the eyes of the ‘reasonable objective person’ of
a conflict is normally sufficient to give rise to difficulties.
The most obvious area of conflict is where a firm advises more than one of the parties
to a transaction or a dispute. The courts have taken several opportunities to express
their disapproval of such behaviour, even where the family lawyer finds himself,
almost accidentally, advising several family members simultaneously. Indeed, the
courts in England in recent years have placed an onus on banks to ensure that spouses
15
(1854) 1 Macq. 461.
8
11. obtain separate legal advice in certain circumstances (see, for example, Barclays Bank
plc v. O'Brien16 and National Westminster Bank plc v. Morgan17). It is clear that the
law disapproves of any apparent or real conflict of interest where one professional is
advising more than one party.
Conflicts of interest can also arise when an individual or firm, having advised one
party to a dispute or transaction, subsequently wishes to advise another party to the
same dispute or transaction in relation to the same matter or different matters. Such a
situation can arise, as in the Canadian case of Martin v. Gray18, where a former
employee of a firm advising one party joins the firm advising another. In that case the
Canadian Supreme Court applied a two-stage test: did the lawyer actually receive
relevant confidential information as part of the lawyer-client relationship from the
first party, and, if so, would a ‘reasonable objective person’ perceive a risk that the
information will be used to prejudice that party?
This appears a sensible approach. It allows the court to exercise its discretion in the
second leg of the test in assessing whether any confidential information would be
passed between the former employee and the lawyers engaged by the other party, or
conversely whether effective ‘Chinese walls’ are in place to prevent this. Recent
Australian case law also follows this general approach19.
The recent landmark decision of the House of Lords in Prince Jefri Bolkiah v.
KPMG20 has, however, broken new ground in the area of conflicts of interest and
Chinese walls. The facts of the case and the detail of its progress through the courts
are complex. In summary, the plaintiff, a brother of the Sultan of Brunei, had
previously engaged KPMG to undertake a very extensive financial investigation. This
resulted in KPMG becoming very familiar with a large amount of confidential
information relating to the plaintiff’s assets and the manner of their ownership. The
firm was then asked by the Brunei government to assist in an investigation of the
financial affairs of the organisation that, under the plaintiff’s chairmanship, managed
the government’s general reserve fund. KPMG recognised that the interests of this
investigation might conflict with the plaintiff’s interests. However, the firm concluded
that the assignment could be accepted because the plaintiff was no longer a client and
adequate Chinese walls could be constructed to prevent confidential information
concerning the plaintiff being disclosed to the investigation team. KPMG did not seek
the plaintiff’s approval for their involvement in the investigation.
In unanimously allowing the appeal from the Court of Appeal’s discharge of an
injunction restraining KPMG from acting in the investigation, the House of Lords set
a very high standard for the duty to keep information confidential. Lord Millett said:
“Whether founded on contract or equity, the duty to preserve confidentiality is
unqualified. It is a duty to keep the information confidential, not merely to take all
reasonable steps to do so. Moreover, it is not merely a duty not to communicate the
information to a third party. It is a duty not to misuse it, that is to say, without the consent
of the former client to make any use of it or to cause any use to be made of it by others
16
[1993] Q.B. 109; [1992] 3 W.L.R. 593; [1992] 4 All E.R. 983 (CA); [1994] 1 A.C. 180 (HL).
17
[1985] A.C. 686; [1985] 2 W.L.R. 588; [1985] 1 All E.R. 821.
18
[1991] 1 W.W.R. 705; sub. nom. MacDonald Estate v. Martin [1990] 3 S.C.R. 1235.
19
Carindale Country Club Estate Pty Ltd v. Astill [1993] 115 A.L.R. 112; 42 F.C.R. 307.
20
[1999] 2 A.C. 222.
9
12. otherwise than for his benefit. The former client cannot be protected completely from
accidental or inadvertent disclosure. But he is entitled to prevent his former solicitor from
exposing him to any avoidable risk; and this includes the increased risk of the use of the
information to his prejudice arising from the acceptance of instructions to act for another
client with an adverse interest in a matter to which the information is or may be
relevant.”21
He went on to deal with the importance of a perception of confidentiality as well as its
reality. He said:
“It is of overriding importance for the proper administration of justice that a client should
be able to have complete confidence that what he tells his lawyer will remain secret. This
is a matter of perception as well as substance. … the court should intervene unless it is
satisfied that there is no risk of disclosure. It goes without saying that the risk must be a
real one, and not merely fanciful or theoretical. But it need not be substantial.”22
In relation to the effectiveness of Chinese walls, Lord Millett had this to say:
“There is no rule of law that Chinese walls or other arrangements of a similar kind are
insufficient to eliminate the risk. But the starting point must be that, unless special
measures are taken, information moves within a firm. … The Chinese walls which
feature in the present case, however, were established ad hoc and were erected within a
single department. … In my opinion an effective Chinese wall needs to be an established
part of the organizational structure of the firm, not created ad hoc and dependent on the
acceptance of evidence sworn for the purpose by members of staff engaged on the
relevant work.”23
This decision has far-reaching implications for the management of perceived and
actual conflicts of interest in all professions. Professional firms would be ill-advised
to ignore its implications. In particular, a simple solution is the adoption of a blanket
policy of refusing all new work, in situations where information has previously been
obtained from a client and new work would involve ‘the acceptance of instructions to
act for another client with an adverse interest in a matter to which the information is
or may be relevant’.
It is safe to assume that the law will generally perceive a conflict of
interest to arise where any partner in the firm or any member of staff
engaged on the assignment holds a financial interest of any kind in a party
to a dispute or transaction in which the firm is engaged. This is because
such an interest will give rise to at least a perception of, if not actual,
impairment of independence in advising a party to the dispute or
transaction.
SELECTING EXPERT ACCOUNTANTS
Choosing an expert has always been a critical element in litigation case management.
If a decision is made to appoint an independent expert then it is critical that the right
person is selected. A poor appointment could have a significant impact on the
outcome of the case. The process of selecting a forensic accountant requires careful
21
ibid., at pages 235 – 236.
22
ibid., at pages 236 - 237.
23
ibid., at pages 237, 239.
10
13. consideration of several criteria. The question must be asked whether the expert to be
appointed is in fact an expert in the required subject.
There is no perfect firm size in the accounting profession and selection based on firm
size will to some extent depend on the nature of the assignment. Some assignments
might be appropriate for a very specialist sole practitioner working in a narrow field
of expertise. International accounting firms, with offices around the world and large
staff, may be suitable for projects that cross international borders or that require a
significant time and human resource input.
Cost is a relevant consideration in selecting a forensic accountant. Fees and related
costs should be discussed in advance. Forensic accountants will explain the
procedures and billing of fees during the selection process.
ENGAGING EXPERT ACCOUNTANTS
The process of engaging an expert accountant requires careful consideration so that
both the client and the expert accountant have a common understanding of the terms,
objects and expectations of the engagement in advance.
Timing of engagement
If forensic accountants are hired early enough in a case, they can make a significant
difference to its outcome. The expert can become more involved in the case and can
contribute more extensively to the manner in which it is conducted . Lawyers often
devote considerable efforts in dealing with the liability side of the case, with less
attention spent on considering the damages aspects. Even when damages issues are
considered, without the advice of an expert the lawyers may fail to obtain the
necessary documents to support the damages calculations.
Lawyers may be tempted not to hire an expert early in the case in order to keep costs
down. In the long run this may be counterproductive if the damages side of the case
suffers as a result. The importance of bringing an expert into a case early is eloquently
illustrated by Plummer and McGowin (1995) as follows:
“A typical disaster scenario. The damage expert gets hired two days before the deadline
for expert disclosure. A pile of documents and depositions arrive at the expert’s office a
week later. When the expert calls the attorney to ask for key data that was not in the pile,
the litigator says ‘It looks like we never asked for that in the document request or at
depositions. Oh, by the way, they want to take your deposition next week.’ The expert
must do damages analyses that makes assumptions about key facts and then alter those
assumptions depending on trial testimony. This often results in poorer analysis and
increases expert’s costs by a factor of 2 or 3.”
Terms of engagement
Forensic accountants should receive clear instructions from lawyers, preferably in
writing. Experts have more to lose by not agreeing terms in advance, but such
agreement should also be in the interests of the instructing lawyer and the client to
ensure the contractual relationship with the expert is clear.
11
14. Accountant-client privilege
If the client hires the expert without the lawyer being a party to the engagement,
expert information may not be as easy to protect from discovery by the opposing
party. The reason for this is the rule on legal professional privilege (referred to as
attorney-client privilege in the US). This rule protects from disclosure any
communications between parties and lawyers made in contemplation or furtherance of
litigation, or for the purpose of obtaining legal advice. However, including the client
(along with the lawyer) as a party to the engagement may have the advantage of
helping to prevent misunderstandings and disputes regarding the selection of the
expert, the expert’s services and the expert’s fees.
In US federal courts, the principle of no accountant-client privilege was established in
the case of Couch v. United States24, and was confirmed more recently in Mattco
Forge Inc. v. Arthur Young & Co.25. In about half the states, some limited form of
statutory accountant-client privilege exists. Such privilege does not exist in common
law and is of little value in federal cases. However, lawyer-client privilege extends to
accountants under the Kovel rule26 when an accountant acts at the direction of a
lawyer to provide information for the client (Pacine, Hillison, Fennema and Placid,
2004). Jones (1998) discusses the Kovel rule which extends the protection of the
attorney-client privilege to accountants hired by a lawyer as non-testifying expert
witnesses. The basis for this decision is that the accountant is deemed to be acting as
an agent of the lawyer. This attorney-client privilege only operates under certain
conditions and breaching these conditions may result in loss of privilege.
The Internal Revenue Restructuring and Reform Act of 1998 extended attorney-client
privilege to accountants in relation to tax advice between taxpayers and federally
authorized tax advisors. This privilege only applies to tax advice, and does not extend
to preparation of tax returns, general business consultations or personal financial
planning. These provisions are not as broad as attorney-client privilege. It applies only
to civil disputes over interpretations of federal tax laws, not to state taxes or criminal
proceedings. Corcoran (2000) discusses in more detail the extent to which accountant-
client privilege is protected under this legislation.
Accepting the assignment
The agreed terms of the engagement should include the nature and extent of the
services to be provided, responsibilities of the parties to the engagement, and other
business terms including the method of determining fees for the services, and the
dates the fees are to be paid. The expert is advised to only accept an assignment where
he has the:
• Knowledge, experience, qualifications and professional training appropriate for the
assignment;
• Resources to complete the assignment within the agreed time scales and to the
standard required. Experts should not accept instructions if they are not able to
24
409 US 332 (1973).
25
60 Cal. Rptr. 2d 780 (1997) (CA).
26
Named after the decision in United States v. Kovel, 296 F.2nd 918 (2d Cir. 1962).
12
15. prepare a report within reasonable time, having regard to the timetable of the case.
A time frame for production of the report should be agreed in advance.
Forensic accountants should make clear to lawyers, in advance, what can and cannot
be expected on completion of the assignment. In particular, as soon as possible after
being instructed, they should identify any aspects of the engagement with which they
are unfamiliar, or which they are not competent to handle, or on which they require
further information or guidance.
If any part of the assignment is to be undertaken by persons other than the individual
instructed then:
• Prior agreement from the instructing lawyers must be obtained; and the
• Names, qualifications and experience of the individuals should be provided
When a firm has been instructed the names of the members of the team to work on the
assignment should be provided, if requested.
Engagement letters
Experts are not required to use engagement letters when providing services. However,
using engagement letters provides a convenient means of outlining the engagement, of
documenting the parties’ understanding of the engagement to prevent
misunderstandings, and of providing for a method of resolving future disputes should
they arise. Engagement letters can help prevent misunderstandings about the services
to be provided, responsibilities of the parties, and the terms of engagement. In
addition, they may help document that the experts’ opinions, expert’s work output,
and facts known or relied upon by the expert are protected from discovery by the
opposing party until the lawyer decides that he expects to call the expert to testify.
The content of engagement letters will vary depending on the court system,
circumstances, professionals and clients involved. Issues to be covered might include
some of the considerations discussed below (Gafford, 1996).
Identification of parties to the engagement
Direct engagement of the expert by the lawyer (or the lawyer and the client) may be
the first step that the lawyer can take to protect expert information from discovery by
the opposing party, until the lawyer decides to call the expert to testify. This is
particularly the case if the initial briefing of the expert regarding the issues at hand
effectively amounts to an advisory consultation at a time when legal proceedings are
yet to be contemplated.
Identification of the case and parties to the litigation
Identifying the case and the parties to the litigation helps document that the expert
was retained in anticipation or contemplation of litigation or for preparation for trial.
This is another key element to protect expert information from discovery by the
opposing party until the lawyers decide to call the expert to testify.
13
16. Effective date of engagement
This should be specified in the letter.
Initial services to be completed and expected timing
The engagement letter should describe any initial services to be provided and, if
possible, the expected completion times.
Availability of information
Details of the documentation and information to be supplied to the expert by the
lawyer and/or client should be identified. A standard paragraph appearing, for
example, in an audit representation letter might also be included in the expert’s letter
of engagement to the effect that to the best of the lawyers’ and client’s belief the
information or documents provided are true, complete and correct. The effect on the
engagement of the client/lawyer not supplying the information in a timely manner
may also be referred to.
Conflicts of interest
Engagement letters should include an affirmative statement that the expert is not
aware of any conflicts of interest. If the expert has conflicts of interest that have been
waived by the appropriate parties, the statement should be changed to describe the
conflicts of interest.
The lawyers and the expert should consider the effect on the strength and credibility
of the expert when conflicts of interest exist. If the lawyers restrict the engagement to
an advisory role that is protected from discovery by the opposing party, and with no
requirement for expert evidence to be given in court, this may not be a concern.
Discovery of information, opinions and work output of experts
The expert witness’s work product is usually not available through discovery. This is
because it normally attracts the privilege associated with the contemplation or
furtherance of litigation, referred to above. In general, discovery is allowed for of any
unprivileged documents containing material relevant to the case. Discovery may even
allowed be for information that is not admissible at trial if the information appears
reasonably calculated to lead to the discovery of admissible evidence.
Amount and timing of fee payments
The agreed terms of engagement should indicate arrangements concerning fees –
whether an hourly rate, a fixed fee or amount recoverable on taxation. The hourly rate
charge is generally the most advantageous for the expert. The terms should be agreed
at the outset and should cover all matters including:
• Expert’s method of charging;
• Basis of expert’s charges (rate of hourly charge, amount of retainer, etc.)
including any different rates for attendance at court;
• Staff working on the assignment;
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17. • Rates chargeable for each member of staff;
• Rates for support-staff;
• Charging rates/daily rates for attending at trial;
• Charging rates during travel time and waiting;
• Whether cancellation fees are chargeable;
• Whether disbursements are to be charged by the expert or absorbed in his fee;
• Frequency of billing;
• Payment arrangements.
An example of a fee schedule and retainer agreement is available at Zengler
Economics (http://home.earthlink.net/~zengler). Although somewhat basic, it
provides a guideline on various aspects to be agreed concerning fees. Responsibility
for payment of the accountant’s fees usually rests with the instructing lawyer, and not
the client, unless the parties come to a different arrangement. Difficulties may arise
where the amount of work required turns out to exceed initial estimates. Where this is
the case, the instructing lawyer should be informed as soon as practicable. The lawyer
then has the option of not having the extra work done.
Clear communication in the engagement letter about the expert’s fees is important in
preventing misunderstandings. The model terms of engagement (applying to experts
generally) of the Expert Witness Institute (EWI) are an example (available at
www.ewi.org.uk). These model terms deal with ten issues, eight of which relate to the
expert’s fees! Professional accountants may wish to adapt this using more
professional forms of expression.
Limitations that may require other experts
The development of, reliance on and ability to support certain assumptions in relation
to valuations of damages in personal injuries, wrongful death and in business
valuations may require additional experts, over and above those that have the
qualification to make the valuation. Non-valuation experts that the case might require
include actuarial experts, and experts in medical, psychiatric, psychological and
vocational rehabilitation fields. Determining the appropriate evidence to present in the
case is a legal matter for which the lawyers are responsible.
Update of written report prior to testimony
Considerable time may elapse between preparation of the expert report and the case
coming to trial. A paragraph in the engagement letter might provide for the expert’s
report to be updated prior to giving evidence, or at the lawyers’ request.
Limitation on responsibility
Many factors may affect the resolution or outcome of a case. The expert is hired to
provide objective opinions and work product (i.e. without taking account of whether
the plaintiff or defendant will benefit). The lawyers are not required to accept or use
the opinions or work product of the expert.
An expert’s responsibilities must be limited to his opinions and work product. Those
responsibilities must not extend to all factors that affect the ultimate resolution or
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18. outcome of the case. Such a limitation of responsibility in an engagement letter will
help clarify that the expert is not a biased ‘hired gun’.
Resolving disputes
Methods of resolving disputes involving experts include out of court negotiations,
settlement by the parties, litigation and alternative methods to litigation. Arbitration is
a common alternative to litigation. The sample engagement letter might include a
contractual agreement for any disputes to be decided by arbitration. It might also
specify the arbitration rules to be followed. In addition, responsibility for payment of
the costs of arbitration might also be set out.
Terminating engagements
Engagement letters might include provisions for terminating, e.g. as a result of;
• Fees not being paid;
• Change in lawyers and/or parties involved in the case; or
• Information becoming available that makes the expert’s services inappropriate.
Such situation might arise where there is disagreement between the lawyers and
the expert concerning the contents of the expert opinion. The expert has a duty to
provide an objective opinion.
ACCOUNTANTS’ FEES
The issue of accountants’ fees has already been touched upon and is expanded on
here.
Contingent fees and expert testimony
If the client’s ability to pay the fee were dependent on the outcome of the case, this
would amount to a situation akin to a contingency fee arrangement. This in turn might
lead to accusations of lack of objectivity on the part of the expert and may undermine
the credibility of the expert. As an expert should be, and should be seen to be,
independent and objective, the employment of an expert witness on a contingency fee
basis would generally be inappropriate. The Academy of Experts Code of Practice27
prohibits the payment of fees on a contingency, no win/no fee basis. Under the
professional ethics of the professional accountancy bodies, accountants acting as
expert witnesses are not allowed to accept instructions on a contingency fee basis.28
If the instructing lawyer is being paid on a contingency fee basis it is important to
make it clear that such a basis for charging is not appropriate and is not allowed for
someone acting as an expert witness.
27
See www.academy-experts.org: “An Expert who is retained or employed in any action, suit or other
contentious proceeding shall not enter into any arrangement to receive a contingency fee in respect of
that proceeding.”
28
For example, paragraph 4.0 of Section 1.210 of the Institute of Chartered Accountants in Ireland
Ethical Guidelines states “Fees should not be charged on a percentage, contingent or similar basis in
respect of audit work, reporting assignments, due diligence and similar non-audit roles incorporating
professional opinions and expert witness assignments.”
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19. Records
Daily records of time spent and expenses incurred by each member of staff should be
kept. The daily record should also cover the activities and nature of the work being
done on each day. Daily contemporaneous attendance notes/time records should, if
completed property, ensure compliance with the requirements associated with the
taxation of costs, where necessary.
Order for costs, taxation of costs and accountants’ fees and legal aid
Courts give parties to litigation wide discretion in deciding whether to call expert
witnesses. If costs are awarded to one party they will normally not be able to object to
the costs of an expert witness, unless they can show that is was unnecessary to call
that witness – even where the expert is not actually heard by the court.
CONCLUDING COMMENT
The current system where both parties to litigation call their own witnesses has been
criticised as expensive. Several recommendations for reform have been made, some in
relation to expert witnesses, including:
• Use of single, court appointed ‘neutral’ experts;
• Courts should have the power to compel expert witnesses to meet in advance and
agree issues;
• Statements by expert witnesses should be let stand as evidence in chief of
witnesses.
There is little doubt that the use of forensic accountants as experts in general is at best
inefficient. Many cases that would benefit from forensic accounting input do not get
it, or get it too late. In other cases, several experts appear where fewer, or even one,
would suffice in all the circumstances. New rules would help, but the onus is
ultimately on parties to litigation and on their lawyers to make adequate and
appropriate use of the skills available to them.
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20. References
American Institute of Certified Public Accountants (AIPCA). 2003. Litigation
Services and Applicable Professional Standards, Consulting Services Special Report
03-1. New York: AIPCA.
Beven, T. 1908. Negligence in Law (3rd ed), Stevens and Haynes: London.
Corcoran, A.K. 2000. The accountant-client privilege: A prescription for
confidentiality or just a placebo? New England Law Review, 34 (3): 697 -737.
Gafford, W. W. 1996. Engagement letters for experts in valuing damages in personal
injuries and wrongful deaths. Litigation Economics Digest, 2(1): 31–53.
Jones, E. 1998. Keeping client confidences: Attorney-client privilege and work
product doctrine in light of United States v. Adlman, Pace Law Review, 18: 419-471.
Pacini, C., Hillison, W., Fennema, M.G. and Placid, R. 2004. Attorney-client
privilege: CPAs and the e-frontier, Journla of Accountancy 197 (April): 64-72.
Plummer, J. and McGowin, G. 1995. “Ten most frequent errors in litigating business
damages” Association of Business Trial Lawyers, 5(1).
Stephen, J. F. 1946. A Digest of the Law of Evidence (12th ed) Macmillan & Co.
Limited: London.
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