Those issues are laid to rest when a single professional brings to bear two sets of professional eyes, legal and accounting, from the very beginning, a tremendous advantage when drafting and responding to discovery demands. Audit skills are applied to request specific records or information, which should have been created in the ordinary course of business, and to review the response(s) to request supplemental discovery to ensure that, at the very least, the documents needed to advance the case are identified and specifically sought from either the adversary or third-parties. If the accounting records received are still unresponsive, the specific accounting issue can be articulated to the court in motions to compel discovery, including sanctions, based on specific deficiencies in the accounting records produced.
Any accounting records received in discovery will be examined for inconsistencies or other grounds to mount a challenge at trial or earlier. This may include drilling down to the adverse party’s books of original entry and source documents, among other things. Accounting records can also be obtained from third-party sources to challenge the adverse party’s position or to confirm our position. As noted above, there is no more powerful evidence, accounting or otherwise, than favorable evidence obtained from the adverse party or disinterested third-parties. The key is knowing what is or should be available and where to look. This is where audit skills are particularly valuable.
An attorney on the trial team cannot be deposed, nor are any calculations or accounting worksheets produced by an attorney subject to discovery. Everything will be done by a lawyer bringing significant forensic accounting and auditing experience to bear in litigation in the practice of law, not accounting. There can be no doubt that anything and everything so produced falls within the penumbra of the attorney work-product doctrine ab initio ad infinitum.
Nor can an attorney in the case be sequestered. The live testimony of the adverse expert and lay witnesses will be observed and evaluated in real time by a trial lawyer and forensic accountant seated at counsel table. In addition to performing all the duties of second chair, including preparing and organizing the accounting evidence, making and opposing objections, questions for cross-examination of adverse witnesses can be prepared in advance and in the courtroom during the trial. Drawing from experience testifying as a forensic accounting expert, challenges can be made to, inter alia, the documents reviewed, invalid assumptions, unsupported conclusions and compliance with professional standards.
The experience of serving and testifying as court’s accountant has also proven invaluable in evaluating and explaining accounting issues and evidence to the non-CPAs who are actually in charge of the litigation: trial counsel, who gather and present the evidence; the trial judge, who rules on the admissibility of evidence; and, most importantly, the finder of fact, whether the bench or jury, who evaluate the weight of the evidence. Mr. Olejar's proven ability to effectively articulate accounting issues to the court and counsel benefits every stage of any accounting-centric litigation, including case evaluation, settlement negotiations, discovery motions, challenges to adverse expert reports, dispositive motions and ultimately trial.
Phone: (201) 400-8351
Robert J. Olejar, Esq. CPA, CFE
American Barrister® LLC
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