Category Archives: Experts

Be an Expert with CPA Experts through the AICPA Code

Most jurisdictions require that a plaintiff establish allegations of accounting malpractice through expert testimony. Moreover, accounting experts are often relied upon to establish damages. Accordingly, the vast majority of litigators, even those outside of the malpractice community, will encounter a CPA expert witness. This may be daunting for attorneys. Fortunately, there’s a handy, but underutilized, guide. The special reports to the AICPA Code of Professional Conduct include ethical standards required of every CPA. The reports provide a readymade guide for evaluating the efficacy and admissibility of a CPA expert’s testimony. Using these standards as a benchmark should help practitioners retain and oppose an accounting expert.

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Affidavit of Merit Failures: Chose Your Expert Wisely

In many states a litigant cannot proceed with a professional liability lawsuit without an appropriate affidavit of merit. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. Simply filing an AOM though is not always enough. Ensuring that the AOM has been prepared by the appropriate professional and addresses the issues of the particular case is critical to surviving a potential motion to dismiss. Take for example two recent cases out of New Jersey.

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Proper Use of Expert Opinions

Expert witnesses are critical in many professional malpractice cases. This is particularly true in the med-mal context where expert testimony may be necessary to help understand causation. More specifically, experts in medical malpractice cases are essential in helping the fact finder determine whether the medical professional’s actions (or inactions) were the cause of the alleged injury. Whether an expert succeeds in this task can be the difference between a win and a loss at trial and in some cases on a motion for summary judgment. Take for example the following scenario.

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Who is Really Writing the Expert Report?

Expert reports are a staple in many litigated matters. A good report should clearly convey the opinion and provide sound reasoning for the basis of the opinion. It is to be expected that an attorney and the expert will work together to formulate the expert opinions and ultimately to author a report. But how much input may an attorney provide? Federal Rule 26 clearly states that the expert report is to be prepared and signed by the witness. Nothing in the rule prohibits counsel from helping the witness. But, it's not completely clear from the rule exactly what level of involvement is permissible. A recent federal case sheds some additional light on this issue.

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Choose Your Experts Carefully

Most, if not all, malpractice claims require expert testimony. Thus, those of us who defend professionals are often called upon to retain an appropriate expert to assist in the defense. The reverse is also true: claims against professionals usually require an expert within the defendant’s field who is prepared to testify that the professional breached the applicable standard of care. Whether it be karma, failure to read PL Matters, or otherwise, an attorney in Iowa recently learned this lesson the hard way when a malpractice claim he pursued on behalf of a plaintiff, turned into a malpractice claim against him for failing to secure the right expert.

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Experts are Like Produce: Buy Local

A key issue in most professional malpractice cases is whether the professional complied with the applicable standard of care. Given that this standard is defined by individual professional communities, an expert is almost always needed to assist the fact-finder. Not just any expert will do. Rather, an ideal expert must be in a position to opine whether the questionable conduct complied with the standard upheld in the defendant’s jurisdiction. This issue was recently raised in Delaware when an expert’s opinion was ignored because he lacked an understanding of the locale at issue.

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Be an Expert at Retaining Experts

Expert witnesses play a key role in professional liability matters. The perfect expert will work with counsel to identify and address issues during discovery and later will effectively condense complex issues to a jury in layperson terms. As a result, attorneys must carefully consider who they select and how to best utilize the expert. In a sense, an expert witness is just another tool available to the professional malpractice practitioner; an expensive and unwieldy tool if not vetted and monitored properly. Often, it is the attorney who may be left to answer for poor results arising from an expert’s misconduct.

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Work-Product Doctrine Tested in Pennsylvania

Attorneys must communicate with expert witnesses to define the scope of the engagement, to prepare for trial, and to evaluate the evidence. Depending on the jurisdiction, some or all of that communication may be protected from disclosure pursuant to the attorney work-product doctrine. In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court considered the extent of the privilege in this context and reached a bright-line rule in favor of non-disclosure.

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Recent Decision: Impeaching an Expert Witness

Attorneys and litigants would love a peek behind the curtain to develop a better understanding of their adversary’s case. Of course discovery provides the parties with various tools to identify and narrow the issues prior to trial. But discovery can only reach so far. In light of various privileges and exceptions, litigants often grapple over those materials that are discoverable and those that remain protected. In a recent New Jersey Superior Court decision, the court evaluated the extent of the attorney work-product doctrine as it pertains to expert testimony.

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