There is a dance involved in report writing. Experts need enough time and information to create excellent reports; attorneys often want to review the reports, but need to be cognizant that any change requests not impact the expert’s opinion or voice; and in the background confidentiality and discovery lurk over all the communication, with rules dependent on the given jurisdiction.
First, it’s useful simply to know if your expert can write. The easiest time to find this out is before you retain the expert. Expert Charles Ehrlich recalls one situation where the attorneys skipped this step:
Not everybody writes very well, and I guess I would say from the standpoint of a lawyer retaining an expert, it makes some sense to ask for some written product. […] I had a case where the lawyers had three experts. My side had three experts and when we got down to the report due date, the lawyers almost committed suicide because two of these experts just could not write the English language. I am not saying I am wonderful, but I can write a coherent sentence. If you cannot, there is training and there are people who train people how to write expert reports. Then, of course, some people let the lawyers write the expert reports which always struck me as a little weird. I do not know how that comes off or doesn’t come off, but it seems like a strange practice to me.
Expert David Harkavy is ready for these requests:
Often, prospective counsel will ask me for a redacted version of an expert report. I have those redacted reports available so that if an attorney calls me up, asks me questions, and says, ‘David, I like your experience and credentials. Do you have a lost profits report that you can share with me?’ For privileged reasons, I cannot provide one of my old expert reports because they are destroyed at the end of a case as a result of a protective order in place. I have redacted some of my old reports to remove confidential information and party names, etc. so that if a prospective attorney wants to see my writing style, I have one of my reports for him or her.
Attorney Mudasar Khan reminds us that how important the writing skills of the expert are depends on how you intend to use your expert:
You need to look at two sides of what the expert is going to do. [If] they are going to prepare your expert report [then] you need good persuasive writing. Many times [writing skills] are not considered in the initial stages. [Sometimes you] need a good witness and not someone who can give you a good expert report. And so, I think the vetting process to find a good witness is important.
Once you’re sure you have the right expert, then it’s time to get them what they need. Expert Dr. Larry Chiagouris has learned over decades of experience as an expert that it is key to define what is needed:
I learned that a good expert opinion in a good expert report is like a stew. You have all the right ingredients, and that means […] bring your expertise to the table, which means your knowledge of the peer-reviewed articles, or the industry-specific best practices[…] But if you focus only on that and do not recognize the importance of the discovery process and the testimony in the declarations and depositions that have occurred you are not getting the whole story. You have to make sure you look at the record that was produced during discovery. […] You need to be a little aggressive with the attorneys that are engaging you. You need to be very aggressive at asking for all the declarations. I want to see the deposition transcripts. I want to see all the documents produced in discovery. Now some of these files can be 40,000-50,000 documents and you do have to rely on the attorneys for identifying what is in the archive with what is in the inventory. So, you need to make sure you educate them on the kinds of things you need because when I did this very early on 15-16 years ago, I did not understand all the documents that could be made available. […] I want to see all of these types of documents that may have been produced, that are relevant to my opinion. You need to have conversations with the attorneys about that to make sure it is clear because they do not necessarily always know. You may be working with the junior associate who may be smart and know the law well, but they may not know what may be helpful to you in understanding all the threads and all the nuances associated with the case.
Expert Dr. W. Richard Laton concurs:
The biggest thing I have learned is you cannot look at enough documents. It costs money for me to review these things and I have a person in my firm that reviews them first, then tries to narrow that down for me. If I am going to make an opinion on something, I must understand what the problem is and all the data that goes into it. Once you get that expert report out for the deposition for the federal court, it will be based on what is written in that. They can ask other things, but what you have written is supposed to be the only thing you can testify on. So, what it amounts to is they are going to go through that report and try to see if there are any holes in it or if their expert has things that say what we came up with.
Not having a variety of sources for information can cause an expert’s work to be thrown out. Dr. Eric Cole remembers a problem he had once:
In writing reports, the big thing I always like to do is understand the case and then make sure that I have multiple pieces of evidence. I think it was my second or third case, it was an excellent report, but I relied on only a couple of pieces of evidence. One part was incorrect. So, the other side said, ‘This is not accurate.’ Which is a whole other issue for the lawyers to handle. I was in a difficult position because you can only testify to what is in your report. If the other side is questioning your document, that puts me in a tricky spot. So now I have the philosophy that you do not want to overdo it, but I like to have some public documents, some private documents, depositions from the other side, and, depending on the case, source code [if] available. In my reports, I am ready for any argument. If I am working on a trade secret or an infringement [matter], I have multiple sources that all say the same thing. If there is a problem later on, I could say, ‘OK, the document gets thrown out.’
As well as gathering the information, it is imperative that your expert have time to review the materials, Kevin Quinley notes his steps to creating a report and the first one is to make sure he can actually perform the work:
The first is to renegotiate tight deadlines or decide whether or not you can meet a tight deadline. I quote the Nancy Reagan anti-drug slogan, ‘Just Say No.’ No because you are faced as an expert many times with those eleventh-hour, hair on fire, requests to review a couple thousand pages or more of documents, analyze them, come to some conclusions, draft, edit and proof your report, collaborate with Council and produce a first-rate, work product… and so I want as long a runway as possible. So, if there is a tight deadline and by tight much of it depends on the volume of material, there are several variables here, but I like at least 30 days if not more from the date I am engaged. That means that the contract signed retainer is received and materials are received. That is when the starting gun goes off. Even then, that is aggressive, I think, to allow yourself enough time so that you can do something other than microwave an opinion. We are experts. We are not short-order cooks. Would you like fries with that?
Once the materials are together and deadlines are in place, it is time to begin writing the first draft. Expert Pete Fowler has a system in place for his group:
I wrote my first how-to-write training program, and we still use it today. […]. [We] outline the work and we do it in multiple passes all the time. We keep a picture of my mother who quit high school at 16, had me at 19, and started her business in her early 20s. She was a single mom who got her GED. I have a picture of her getting her degree with her cap and gown on when she was 48 years old. We put this picture in a bunch of presentations. […] We say, ‘Explain this to Pete’s mom because she is very smart but has no technical background. She is a barber, so explain it to her.’ If consultants tell me what they think and I have no idea what they are talking about, it is a ‘you’ problem, not a ‘me’ problem.
In the late ’90s, I wrote the first article in any national publication on the subject of construction defects. As a young guy I am using 25 cent words and the editor yelled at me because it was a construction magazine. He said, ‘Pete, stop using 25 cent words. We are going to dumb this down to the fifth-grade reading level.’ And I thought, ‘Oh my God! Construction guys are so stupid!’ When the article comes out, my lawyer, engineer and architect friends read it and they call me. They were like, ‘Pete, what a great article! It was smooth and easy read.’ I realized that even people who can read at the graduate school level do not want to.
It’s also important for the attorney and expert to strategize on the type of report needed for the particular matter. Dr. Michael A. Einhorn notes:
[…] a plaintiff expert must establish reliable proof of damages in the first place, and a sufficient causal connection from the purported infringement to the sought remedy. I have written quite a bit on this causal connection in the Journal of the Copyright Society. With attorney advice, I will consider strategically what the other side may do in response. If I am working as a defense expert, some attorneys like a direct rebuttal, while others prefer to add an affirmative valuation. With the latter type of report, we can neutralize the other and then put up the right valuation for the matter if it goes to court.
Similar to Cole, Harkavy’s strategy heading into the first draft to ensure he is on the same page as counsel is to begin with an outline:
I often create an outline for counsel as I begin to draft my expert report, as long as that is not discoverable, so counsel will know the flow of topics for my expert report. On a timely basis, I will share a draft of my export report so there are no surprises leading up to the export report due date. There are always going to be last-minute changes to an expert report. [In] the days leading up to the due date, First Chair Counsel will read the expert report for the first time and provide feedback. Oftentimes there is sort of a sort of pushback between Counsel and myself as to the language in my report.
When a first draft has been created, who gets to see it? The attorney needs to help the expert understand what is discoverable for the particular matter, and how the attorney would like the report handled overall. Some attorneys prefer not to see the drafts at all. According to Quinley:
Ask and clarify with retaining counsel whether or not they want to see drafts because different lawyers and different firms in different states have different philosophies and approaches. Some of them say I do not want to see your drafts, maybe because of discoverability issues or whatever. Others say, yeah, I would like to see a draft. So, before you send a draft to retaining counsel, be clear on whether they want that or not. I am cool either way. If they do not want to see it that is fine. Sometimes instead of that, you […] want to talk about it over the phone or do a screen share, but I do not know if that makes the report bulletproof. […] You want a meticulously written work product, free of typos, free of grammar problems, analytically make sense, is well organized, is easy on the eyes in terms of paragraphs and transitions and is graphically tight and attractive to read.
Attorney H. Bernard Tisdale generally likes to discuss an expert’s opinion prior to drafting the report, and then to work with the expert through the drafts:
I think you are also at the same time trying to see what your opinion is going to be in your report. If I don’t like your opinion, I’m not going to get you to write a report. If I like your opinion, walking through the drafting can also assist the lawyer in determining if there are holes in the argument. Does the expert have the correct facts? Does the expert understand the situation? Or is he pointing out things I do not understand, and I need to figure out? To the extent that you can break the process down with your expert to layers and individual baby steps, the better off you are going to be with a result that supports your position or stopping at a point where you figure out it is not going to support your position and you need to stop work. It can be a delicate dance.
As the attorney and expert work through drafting, there can be a variety of pitfalls. Expert Ehrlich recalls:
Well, one trap that lawyers sometimes fall into is to write a report that is more like a legal brief, and you want to avoid that because you are not sitting there as a lawyer. It is the lawyer’s chapter, right? The legal briefs. I just read one the other day and it is full of case citations and so forth and so on. That is not the point. I fell into that trap. The judge was pretty nasty about the whole thing. It was a very educational process. Legal briefs are the lawyer’s job. My job as an expert in industry, custom, and practice is to write about industry, custom, and practice.
Expert Jane Downey has had problems where attorneys edit her reports to sound more like them than herself:
[An] issue with another law firm is an attorney making edits to my reports. As my colleague, John Campbell of Cipriani and Werner, says, ‘Jane, when you get on the stand, and they say is this your opinion, you will say, ‘Well the first version was’’. I had somebody rewrite my entire report. I said I have to rewrite it so when I get on the stand they are my words and opinions. He did not change my opinion, but he put it in a format that was not my voice. What I am learning is many times you have to stand your ground. You need to have a strong personality and know where the boundaries lie. You need to be careful that you are not contradicting an opinion you made last month. Because attorneys will push you to do that and you have to say, ‘Well, I can support you here, but I cannot cross a certain line.’
In the end, though, it pays to remember your audience. Expert Steve Haas notes:
For me, the overarching goal is a couple of things. The first is to communicate my point of view and my position on the argument. Secondly, many times my point of view and argument position is technical. The communication of these to the jurors in a way that someone who has not lived and breathed this for decades can understand is necessary. Not any different than writing a college essay. What do I want to say, and how do I communicate it? What is the sequence in which the story makes sense? How do I step back and use anecdotes and stay away from industry jargon? Anything that someone who does not know this can say, ‘Oh, I can relate to that,’ or ‘That does not seem fair,’ or ‘Of course, that is OK to do.’ It is a matter of trying to give testimony where your goal is not to lose the jury’s attention by using terms they do not understand or bore them to death. How do I communicate effectively and powerfully and do it in a way that the average juror can understand my approach? Examples and anecdotes help bring things to life versus just being an unfamiliar abstract topic.
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