As an expert witness, you’re retained to assist attorneys in understanding case facts, chronologies, and industry standards that impact case strategy. And if the hiring attorney intends to have you testify at the trial, they must also supply the opposition with a written expert report where you detail your testimony topics. The information presented in expert reports can have major sway in the outcome of a lawsuit and, as such, there a number of expert-writing best practices to keep in mind. Here, we’ll walk through the most important techniques to ensure a persuasive and thoughtfully composed expert report.
Know the Legal Standards
Expert reports are so fundamental to the legal process that federal law defines their contents. Federal Rule 26(a)(2)(B) requires that expert reports contain the expert opinions to be given at trial and the facts or data considered in forming them. The disclosed report must describe experts’ qualifications, prior expert witness engagements, and what their compensation is for the present case. Experts must sign their reports—essentially certifying their truth and accuracy.
When crafting a report, remember that it will be heavily interrogated by the opposition. Opposing counsel will scour the document to find ways to discredit your testimony. Expect to defend every conclusion you draw with well-reasoned rationale and industry-backed data. What’s more, opposing counsel will use the report for their own case strategy—looking for holes and weak spots to support their version of the matters at hand.
Let Logic Be Your Guide
At the heart of composing a persuasive expert report is setting out conclusions and opinions that are backed up with facts and research. A report could include the results of tests you conducted and explain the details of the methodology you used to arrive at those results. Similarly, if you are opining on the services of a professional in a specific industry, your report would refer to the relevant standard of care. You would spell out how you determined the individual did or did not comply with that standard.
Persuasive expert reports also avoid exaggerated statements. The document should be neutral and informative in tone. You also want to avoid any overstating conclusions—this is an invitation for opposing counsel to challenge you on these points while on the stand. Opposing counsel will attempt to point to any puffed-up conclusions as indicating unsound reasoning. With neutral logic and evidence guiding your writing, a sound expert report will surely follow.
Choose Active Prose
Many experts are comfortable and experienced in writing for academic, clinical, or professional audiences. When writing expert reports for courtroom appearances, however, your audience is a layperson jury and must be understood by individuals outside your field. Be sure to use the active voice in your writing—the passive voice can be clunky and harder to follow. For instance, you would write, “I conducted the tests” instead of “the tests were conducted.”
In crafting your language, also try to avoid wordiness. The overall report shouldn’t be stuffed with specialty jargon or SAT vocabulary. The goal is to summarize your opinion and its basis accurately and concisely. Keep your writing on-topic and free of unnecessary tangents. An overly wordy report will be less effective in persuading the opinions of your audience.
Ensure Jury-Friendly Writing
It’s likely that excerpts from your report will be read into the record during the trial. Also, you may be asked to comment on sections of it in front of the jury to draw their attention to certain ideas or concepts. As such, the report needs to be “jury-friendly.” This means using approachable, easily understandable language. Use the first person to convey that these are your findings and opinions as a highly credentialled, qualified expert. The jury wants to rely on you as an expert in understanding technical issues. Be their teacher and explain your ideas as you would to a classroom of students. Remain active and invested in the topic and refrain from using second or third-person language.
You’ll also want to be concise in reaching your ideas—aim for 20-word sentences. This length is simpler for readers to absorb, especially when covering technical or complex topics. As a general rule of thumb, try not to exceed 25 words. It’s also a good practice to read your writing out loud to check for clarity and flow. If a sentence sounds overly complicated when read aloud, edit it down to capture just one idea per sentence.
If the case subject matter involves particularly complex concepts, avoid using industry-specific vocabulary. If you need to use special terminology, define it using simpler language. You can also try using analogies. This can be particularly helpful in describing a technical process to a layperson jury. Look for everyday situations that are analogous to what you are trying to explain.
For example, say your job is to opine on issues relating to a manufacturer’s compliance with industrial emission control standards at a plant. A layperson jury may have trouble taking in technical explanations of the functioning of emission control systems, technologies, and tools. Perhaps using an analogy such as, “like the filters in your home’s heating system, the defendant’s emission controls should have trapped and contained harmful particulates.” This might help a foreign concept click for jurors, giving them a familiar framework in which to absorb your opinions on highly technical topics.