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When Attorneys Ghostwrite Experts' Reports
How much attorney involvement in the drafting of experts' reports is permissible? Must the entire work product be that of the expert? Or, at the other extreme, would it be acceptable for an attorney to draft the entire expert's report with the expert “adopting” it? And, if at least some lawyer input is tolerable, then what is the boundary line between permission and perdition?
These questions are perhaps better targeted at practice in federal courts where Federal Rule of Civil Procedure 26(a)(2)(B) calls for disclosure of experts retained or specially employed to provide expert testimony and which “must be accompanied by a written report prepared and signed by the witness.” The words “prepared and signed by the witness” arguably could signal that an expert's report which was primarily ghost-written by a litigant's attorney is taboo. Were the report to be so tainted, the disclosure required by Rule 26(a)(2) might fail and the expert could be barred. Or so the argument could go.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.