Working with experts throughout any case can be a complex process, requiring knowledge of the expert’s field, how they will be used strategically in your case, and how to get the most value out of the experts you retain. As one of the earliest contributions that an expert can make to your case, the expert report can serve as a strong foundation for future success or, if not handled correctly, be the beginning of the end. It’s therefore one of the most important things to get right. Attorneys who are able to navigate the complexities of working with experts during report writing will have a better chance of winning. Below, we’ve outlined 6 of the most important things for attorneys to remember when it comes time for an expert to start writing.
1) Find Out If An Expert Witness Report Is Necessary
Some jurisdictions, like New York, do not require expert witness reports in a vast majority of civil cases. Other jurisdictions allow certain individuals to testify as an expert without submitting an expert report. Such as when a current employee with specialized knowledge, or a non-retained expert, wishes to testify.
However, it is wise to err on the side of caution and produce an expert witness report. Because failure to produce a report from an expert who was required to results in automatic exclusion of the expert’s testimony under FRCP 37(c)(1), unless the failure is found to be justified, or harmless, by the court.
2) Follow the Federal Rules
The following elements are mandatory in federal cases:
- a complete statement of all opinions the witness will express and the basis and reasons for them;
- the facts or data considered by the witness in forming them;
- any exhibits used to summarize or support them;
- the witness’s qualifications, including a list of all publications authored in the previous 10 years;
- a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
- a statement of the compensation paid for the study and testimony in the case.
Most state procedural rules are similar or identical to the federal rules. However, if one is writing a report in a state case, it is important to research the requirements for that state.
3) Ensure The Report Is Sufficient
The level of disclosure required varies from court to court. However, FRCP 26 calls for a “complete statement” of all opinions. A complete statement means that reports must contain not just boilerplate language. Rather they should include a full disclosure of facts and rationale behind any expert opinions. A report should touch on the substance of the expected testimony, and not just recite the documents that were researched. It should also disclose the data and information considered by the expert in forming the opinions expressed. As well as copies of all of the trial exhibits the expert intends to use.
Therefore, an expert should retain any material that he or she relied on in forming the report. Although not required, it may also be wise to produce these materials themselves. This is wise because if an expert decides to use these materials she relied on, and exhibit them at trial, she will have already disclosed of them.
This does not mean that an expert must include every statement they plan on making at trial. However, the purpose of the report is to give the opposing counsel fair notice of what to expect the expert to testify about at trial. So any opinions actually given at trial should at least be logically inferred from the report. In rare cases a court might require the testimony strictly follow what was provided on the report. However, logically inferred opinions are usually admissible.
4) Determine The Attorney’s Role In Drafting The Expert Report
Few jurisdictions actually forbid the practice of attorney-prepared reports. The FRCP requires that an expert prepare and sign the report. However, in practice, courts simply require that the expert substantial participate in the preparation of the report. However, it is more strategically wise to have the expert prepare the report completely on their own. This limits any potential inconsistencies between the report and the expert’s opinions. As well as limiting any chance the adversarial party will make accusations the expert is a “puppet” of the lawyer.
This isn’t to say that an attorney shouldn’t work closely with the expert to ensure the report is thorough. Instead, an attorney should determine the scope, discussed below, and requirements of the report and make sure the expert is properly meeting them. An attorney may also edit the report to neutralize any overly aggressive statements against the adverse party.
5) Determine The Scope Of The Expert Report
Determining the scope of the expert’s report involves both legal and strategic concerns that are better left to a lawyer than an expert. In determining the scope, an attorney should balance the desire to provide as little information to the opponent as possible. While still fulfilling the duty to disclose the witness’s opinions fully and avoid exclusion.
In regard to how much a report can be limited in its disclosure, an attorney should make this decision based on the court the testimony is to be heard in. For example, if a jurisdiction permits parties to depose adverse expert witnesses, the jurisdiction will probably be more liberal in allowing testimony at trial that goes beyond the words actually written on the report. Conversely, if a jurisdiction does not permit expert depositions, then it would be wise to keep the report and the actual testimony as tight as possible. It is important to keep in mind when producing a potentially underdeveloped report that some courts will find that supplying an opinion in a deposition that was omitted from a report does not actually render the omission “harmless” under FRCP 37(c)(1).
6) Determine The Fees For Producing An Expert Report
When a court is asked to determine the reasonableness of expert witness fees, they often look to different factors. These include the training required for the expert insight, the prevailing rates for other comparably respected available experts, and the fees charged by the expert in similar matters.
An attorney retaining an expert should consider the complexity of the expert’s review and report, the importance of the expert’s testimony at trial, and the overall potential value of the claim or defense.
Some money-saving ideas include co-retaining the expert if multiple parties are involved. Or having the expert address multiple areas of expertise if multiple issues are relevant and the expert is qualified in those fields as well. If deciding between hiring a less qualified expert to do a full report, or a highly qualified, yet more expensive, one to do a more modest report; it would be wiser to go with the latter. A court may find the former to be completely unqualified to testify and exclude his or her entire report. While it would only exclude the parts of the qualified expert’s reports that do not sufficiently provide detail.