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and conclusions and, when possible, identify weaknesses and lay the groundwork for attack at trial Section 469 presents a description of the deposition process and some ointers for giving deposition testimony (f) SETTLEMENT ANALYSIS Settlement negotiations can occur at any point during the litigation process They can be greatly facilitated by the use of an accounting expert The accountant can be instrumental in evaluating existing alternatives and terms as well as in proposing other strategic approaches The accountant s evaluation may involve (1) the determination of economic value and feasibility of various strategies or (2) an analysis of the strengths and weaknesses of the two sides positions When determining value and evaluating feasibility, the accountant can estimate damages under various scenarios and help to assess the probability of occurrence for each, thereby giving the attorney a better understanding of the risks involved Just as importantly, the accountant can evaluate the true economic value of various settlement alternatives and determine possible tax effects of each This will enable the attorney and client to make a more informed decision regarding settlement options and perhaps offer alternatives that bene t both parties The accountant also can provide an evaluation of the relative strengths and weaknesses of both the plaintiff s and the defendant s positions, thereby helping the attorney strengthen his bargaining position and anticipate potential problems (g) PRETRIAL When preparing for trial, the accountant can assist the attorney by: (1) preparing courtroom graphics, presentations, and exhibits; (2) preparing witnesses for trial testimony; (3) preparing for the cross examination of opposing witnesses; and (4) ne-tuning the overall case strategy (h) TRIAL If the case does not settle, the nal role of the accountant will be to assist during the trial itself The accountant s testimony in court is a key part of this role In testimony, the accountant presents the opinions developed as a result of his information gathering, review, and analysis This role is clearly the most important one the accountant will play in the process It is imperative that the accountant present opinions in a straightforward, cogent, and concise manner The last section of this chapter describes the course of direct testimony and suggests ways to enhance the effectiveness of the testimony Although opinion testimony is of paramount importance at the trial stage, the accountant can play other valuable roles For example, the accountant can be of tremendous value to attorneys during the cross-examination of opposing experts and nancial witnesses The accountant can work with the attorney to prepare cross-examination questions in an effort to undermine the testimony or the credibility of the witness The accountant will be important in this phase because of his ability to formulate accounting and nancially oriented questions that will be dif cult for the witness to evade or de ect More importantly, the accountant will be able to assess the responses and provide follow-up questions to close the loop on important issues (i) Credentials and Certi cations The expert or consultant in a litigation case brings to the table their skills and past experience Increasingly, individuals are obtaining professional certi cations to re ect those attributes Along with societal and regulatory increased attention to fraud, as evidenced in the passage of the Sarbanes-Oxley Act of 2002, various professional organizations are increasingly offering professional certi cations in forensic and fraud related subject matters Fraud speci c specialty certi cations, in most instances, are obtained as a supplement to the widely recognized designation of CPA, but holding a CPA designation may not be a prerequisite to holding other certi cations One of the best recognized certi cations is the Certi ed Fraud Examiner (CFE) designation of the 36,000 member Association of Certi ed Fraud Examiners (ACFEs) The American Institute of Certi ed Public Accountants (AICPA) and ACFE have been working together for some years to leverage expertise and develop joint training programs The American College of Forensic. birt code 128 Barcode using font CODE 128 — OpenText - Forums
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( a) THE ADVERSARIAL PROCESS In civil isputes, it is generally up to the parties (the plaintiff and defendant), not the court, to initiate and prosecute litigation, to investigate the pertinent facts, and to present proof and legal argument to the adjudicative body The court s function, in general, is limited to adjudicating the issues that the parties submit to it, based on the proofs presented by them (b) STAGES IN A CIVIL SUIT There are three basic phases or stages in a civil suit, barring appeal These stages are the same for virtually all adversarial proceedings, whether in a federal, state, or administrative court (i) Pleadings A lawsuit is started by a complaint that is led with the clerk of the trial court and served on the defendants The complaint lays out the facts and causes of action alleged by the plaintiff The defendants may le a motion to dismiss (arguing that the defendant is not legally liable even if the alleged facts are true) or an answer to the complaint The answer may contain a denial of the allegations or an af rmative defense (eg, statute of limitations has expired) The defendant also may le a counterclaim which presents a claim by the defendant (counterplaintiff) against the plaintiff (counterdefendant) (ii) Pretrial Discovery The purpose of pretrial discovery is to narrow the issues that need to be decided at trial and to obtain evidence to support legal and factual arguments It is essentially an information-gathering process Evidence is obtained in advance to facilitate presentation of an organized, concise case as well as to prevent any surprises at trial This sharing of information often will result in the settlement of the case before trial The rst step in discovery typically involves the use of interrogatories and document requests Interrogatories are sets of formal written questions directed by one party in the lawsuit to the other They are usually broad in nature and are used to ll in and amplify the fact situation set out in the pleadings Interrogatories are also used to identify individuals who may possess unique knowledge or information about the issues in the case Requests for production of documents identify speci c documents and records that the requesting party believes are relevant to its case and that are in the possession of and controlled by the opposing party The opposing party is only required to produce the speci c documents requested Accordingly, when drafting these requests, care must be taken to be as broad as possible so as to include all relevant documents but narrow enough to be descriptive It is not unusual for more than one set of interrogatories and document requests to be issued during the course of a lawsuit The accountant is often involved in developing interrogatories and document requests on nancial and business issues Depositions are the second step in the discovery process They are the sworn testimony of a witness recorded by a court reporter During the deposition, the witness may be asked questions by the attorneys for each party to the suit The questions and answers are transcribed, sworn to, and signed The testimony will allow the party taking the deposition to better understand the facts of the case and may be used as evidence in the trial The accountant expert witness may be heavily involved at this stage, both in being deposed and in developing questions for the deposition of opposing witnesses. simple to user barcode component SDK with no fonts or third party tools needed; . 1. 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