For example, Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires witness reports to include a statement of all opinions and the basis and reasons for them. This includes all facts and data considered in forming the opinion, among other requirements.
When formatting your expert witness report, you should include all pertinent facts and research on which your opinion relies. Of course, the sources of an opinion are case-dependent and may vary based on the issues at hand. In a medical malpractice case, an expert may need to review copious past medical records. The expert may also need to conduct examinations of the patient/plaintiff. In a product liability case, an expert might conduct inspections and tests of the product to determine defectiveness. In any event, experts should thoroughly document all reports. The basis of the report should be on facts and research the record supports. Below are some do’s and don’ts when documenting your expert research.
The Do’s
1) Outline All Reviewed Materials
Because the case records form your opinion’s foundation, it’s important to clearly outline the materials on which your opinion relies. As required by Rule 26 (and other similar state court rules), an expert report must disclose the expert’s opinion. Additionally, the report must also include any facts or data on which the expert relies. Therefore, you should carefully keep track of and thoroughly document any and all records used to reach an opinion. Case review can get quite complex, especially when it involves voluminous documentary records. It’s all the more reason why you should provide an outline or list of the reviewed materials.
2) Organize Your Documents Logically
When organizing the documents relied upon, it is helpful to categorize the materials in a logical or cohesive way. In some instances, a mere recitation of the case materials will not suffice. The report may require additional organization, such as categorizing the documents by type. One example is when you’re organizing medical records of a plaintiff alleging personal injuries. It may be helpful to separate physician and hospital notes and charts from radiology scans and imaging. Medical expenses are its own particular type of damages. As such, it makes logical sense to separate any billing records into their own category.
3) Include All Types of Research
There are a number of ways experts research a matter, and they do not all involve reading written records. Some experts must conduct tests, site inspections, physical examinations, or interviews to reach an opinion. When utilizing these tactile, physical methods of research and preparation, be sure to thoroughly document them. This way, the report can include those methods. For example, consider accident reconstruction specialists who conduct automobile collision inspections. These specialists should photograph their observations. Likewise, engineers conducting product testing should document their findings in writing or other ways. However you complete the research, it is critical to sufficiently document your methods.
4) Use Tables and Charts When Necessary
Speaking of testing, scientific methodology may oftentimes result in massive amounts of collected information. It might not be easily digestible in the form of a written paragraph. Some experts might require raw data, in the form of lists of numbers or statistics, to form their opinions. However, that data can also result in confusion and/or error to the reader. When presenting data from inspections, examinations, etc., it’s helpful to present such data in a comprehensible way. This could take the format of a table, chart or spreadsheet. In addition, it makes it easier to reference any quantifiable data for citation in your report.
5) Include an Index
Demonstrative evidence, in the form of photos, charts, graphs, tables, timelines or other visual models, can be helpful to experts. Using visual models can be especially beneficial down the line if you testify at trial. Just like jurors, readers of your report can appreciate the conciseness and streamlining of your report. It also tends to give more credence to the underlying opinions.
6) Make Your Methodology Clear
When it comes to expert opinions, it’s not just the conclusion that’s most important in the eyes of the court. How the expert reached the opinion is also crucial. Therefore, your methodology (i.e., how did you reach your opinion), matters. If you used a particular system to conduct your analysis, make sure it is front and center. By doing so, it makes it clear your opinion depends on reliable methods.
The Don’ts
1) Avoid Subjective Organization
We all have our own ways of reading, writing, and researching. These may involve using our own shorthand annotations or descriptors. Sometimes, these shorthand styles can even hint at one’s own internal processes, for example, labeling something as “review needed” or “unread.” Using shorthand styles could potentially lead the opposition to discredit your opinion.
2) Don’t Leave Out Documents
If your hiring attorney gave you a document, chances are it is pertinent to the case. Be sure to include all documents your hiring attorney shared with you. Including all relevant documents avoids miscommunications and shows that your opinion is based on the record.
3) Don’t Guess the Facts
Attorneys don’t state the law without citing the applicable statute or case precedent. When you’re working on a report, you should always be able to cite a particular document or fact on record when making assertions about the research you conducted.
4) Don’t Forget to Edit
Like any solidly crafted legal document, an expert report should be thoroughly edited to ensure the accuracy of all opinions. After all, you should want all of your arduous research properly showcased.
