Closeup on business woman writing in documentWith respect to civil litigation, in many instances, expert witnesses who are retained by attorneys are required to submit written expert reports of their findings and opinions prior to being permitted to testify at trial. The Federal Rules of Civil Procedure speak to the matter of written reports, although every state court has not adopted them, so protocol on written reports varies by jurisdiction. Nonetheless, all attorneys should be fully aware of when disclosure of an expert’s report is required, what the report should contain, and what steps litigators should take prior to issuance of the report in court.

Discussion:

Part One: When Written Reports are Required & When they must be Disclosed:

Attorneys should know the rules of civil procedure in the jurisdiction in which they are arguing a particular case, with respect to the requirements concerning expert reports and whether or not such reports must be divulged to the court and opposing counsel. Where the Federal Rules of Civil Procedure (FRCP) apply, an expert who is specifically retained by an attorney to provide legal assistance to that attorney and the attorney’s client must prepare and sign a written expert witness report that reveals certain information. See FRCP 26(a)(2)(B). Under the Federal Rule, the report must include:

(1) A complete statement of every opinion to be expressed by the expert, as well as the basis for each opinion

(2) The data, facts, and/or information the expert took into account in rendering the opinion(s)

(3) A summary of the expert witness’s qualifications

(4) A statement that lays out how much the expert is being compensated and the basis for that compensation (e.g.-whether it’s a flat rate or an hourly fee, as well as the number of hours or basis for the amount of compensation)

(5) A list of any other cases in which the expert has testified over the past four years. Id.

If the litigation takes place in state court, the rules may differ greatly on the issue of whether a written report is required and what its contents should be. Frequently, state courts only ask for a much more limited disclosure of an expert’s opinions, without demanding a full report. In some states, attorneys are merely obligated to disclose the identity of the expert and the expert’s opinions if opposing counsel specifically requests that information during discovery. However, even in such cases, attorneys should strongly consider divulging their expert’s identity and providing a written report voluntarily. By doing so, attorneys increase the likelihood that their expert will be permitted to testify. Failure to provide such information beforehand may result in the expert being barred from testifying, which would undermine the very purpose of retaining the expert.

Part Two: What a Good Written Expert Report should Contain:

In general, an expert’s report should be detailed and able to stand on its own, helping the reader to fully understand all of the opinions made and the bases for those opinions. Attorneys should advise their experts to avoid overly technical jargon and, instead, to focus on revealing information in such a way that a layperson would be capable of comprehending the report in its entirety. The rationale for this admonition is clear: Jurors will read the expert’s report, and if it is so technical as to be incomprehensible, it will not aid the fact-finders in rendering a favorable verdict.

Additionally, attorneys should consider how comprehensive they wish for the report to be, in order to use the report as strategically as possible. For instance, some experts may be inclined to limit their reports to the bare minimum, acting on the assumption that a concise report is less unlike to come under scrutiny or divulge unnecessary details to the opposing attorney. However, this strategy may be problematic, because if an expert’s report does not fully tell a clear story, the judge and jurors may find the report lacking and less credible than if it had been more thorough. The key is to reach some sort of middle ground, where the requirements of a particular jurisdiction’s rules are met and a clear picture is set out, while not providing too much information and thereby setting the expert up for more extensive or critical cross-examination.

In all probability, the expert’s report will be offered at trial as an exhibit. Accordingly, attorneys and experts should seek to provide information that is understandable, logical, and fully explanatory, while avoiding giving opposing counsel additional ammunition for cross-examination. To accomplish this, attorneys should advise their experts to avoid including any information that is not specifically relevant or necessary to the underlying narrative, while being as precise and comprehensive as possible on the specific issues that matter the most.

Finally, because every federal court and nearly every state court has adopted the Daubert standard for determining admissibility of expert opinions, the expert’s report should be based upon generally accepted methodologies. Moreover, it is often extremely helpful to have the expert cite or reference an authoritative, reputable source that describes and endorses the methodologies that the expert’s opinion relies upon.

Part Three: Reviewing the Expert’s Report:

Prior to releasing their expert’s report to a court or opposing counsel, attorneys should always review the report themselves to ensure that the expert’s opinions are not only sound, but also to make certain that those opinions are completely consistent with the facts of the case.

If the case is brought in federal court, attorneys gain an even greater advantage simply from having made a review of their expert’s report prior to disclosure: potential protection under the work-product doctrine. The Federal Rules offer support for the position that an attorney’s review of the expert’s report and any communications between the attorney and expert about the report are protected work-product. In 2012, the Federal Rules of Civil Procedure were amended to add work-product protection to statements between attorneys and their experts. See FRCP 26(b)(3)(A) & (B). Under most circumstances, the Federal Rules now protect exchanges between attorneys and any witness who is required to provide a report under FRCP 26(a)(2)(B), no matter what form the communication takes. Id. Thus, attorneys can now claim these privileges, except to the extent that the communications:

(1) Relate to the issue of compensation for the expert’s research or testimony

(2) Identify facts or information the attorney supplied to the expert and that the expert considered in forming the opinions to be expressed, or

(3) Identify assumptions that the attorney gave to the expert and that the expert considered in forming the opinions to be expressed. Id.

Again, however, the rules differ in state court, so attorneys must check their jurisdictional rules of civil procedure and evidence before engaging in any form of written communication with their experts.

Conclusion:

In many instances, when an expert will be testifying for a particular party, the court will require a written report. Attorneys should be familiar with when such a report is required and should be aware that regardless of whether such a report is required, it may be to the attorneys’ and their clients’ advantage to provide one. Knowing what the report should contain, reviewing it before issuing it to anyone else, and planning how to make the most of an expert’s report will go a long way towards helping attorneys to successfully argue their cases.

 

By: Kat S. Hatziavramidis, Attorney-at-Law