An Expert Witness Guide to Anticipating and Creating Rebuttal Reports
By Noah Bolmer
While most expert witness engagements require a report, there are a couple of different types you will likely encounter. Whereas initial reports contain an opinion applying expertise to the facts of the case; rebuttal reports are responses. On Engaging Experts, we’ve asked experts about their experiences anticipating and writing rebuttals.
Rationale and Timing
According to the DOJ, rebuttal reports are written in response to the opposing expert’s initial report and are designed to critique the methodologies or conclusions presented. Crafting a rebuttal report is about providing a clear, evidence-based analysis that highlights flaws and inconsistencies with the opposing expert’s work.
Federal jurisdictions (and those jurisdictions that have adopted the federal rule) set forth timing and content requirements in FRCP 26(a)(2)(D):
[. . .] Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made [. . .] if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party [. . .] within 30 days after the other party’s disclosure.
Even outside of jurisdictions controlled by FRCP, rebuttal reports are typically subject to court-imposed deadlines and must stay within the boundaries of the issues raised in the opposing expert’s report—introducing entirely new opinions or topics can risk exclusion. Therefore, expert witnesses must work closely with retaining counsel to ensure that the rebuttal is both strategically sound and procedurally compliant.
Craft Initial Reports with Rebuttals in Mind
When writing an initial report, make sure to think about whether your opinion or its basis is easily rebutted. An air-tight, well-supported opinion that is thoroughly checked by your attorney can help prevent embarrassing rebuttals down the line. Security and legal expert Dr. James Pastor recounts:
I had a case out on the west coast where I had done some summary work and did a report. Then almost a year later, the case went silent. Then, they came back and said, “We need a rebuttal right away.” They gave me a report they got from the opposing expert, which was atrocious. He didn’t have the skillset in the industry, and the report was not well-written [. . .] I went ahead and wrote a substantial rebuttal report and ultimately the case was then dismissed against the plaintiff.
Poking Holes
Finding the flaws in opposing experts’ work can be a rewarding puzzle-solving experience, according to clinical and forensic psychologist Dr. Leslie Dobson:
I was hired as a rebuttal psychologist—and those cases are a lot of fun. I got to rip apart another psychologist’s report—and I found a lot of errors in the reports—but what I found more interesting was looking at the video depositions of everyone in play in the case, and pairing that with the errors in the report and bringing in my expertise of substance use into the case.
When writing the initial report, remember to stick to the task at hand. Risk management and compliance expert Frederick Fisher particularly enjoys rebutting attorney-experts, as he claims they have a tendency to practice law in their initial reports:
I’ll tell you, 100% of the time an opposing expert is an attorney, I love it. Especially when I’m dealing with a state or a federal court where I have to issue a rebuttal. They always cross the line, and I’ll open that rebuttal with a paragraph that basically says, “I didn’t know if he was writing a brief or a thesis for a master’s degree in law or what. One thing I do know: he was citing law, and he’s not supposed to do [that]. He was advocating the facts [which] he’s not supposed to do.” I said, “That’s completely inappropriate—that’s [not] the role of an expert.” One hundred percent of the time, the magistrates are the judges who have agreed and gutted 80 to 90% of their report for that very reason.
Formatting Considerations
Rebuttals are formatted differently than initial reports. Law professor Jorge Contreras describes, “In the [rebuttal] report, you’re simply responding to the opposing expert’s report, and there you are pointing out—point by point—the flaws or points that you disagree with in that other side’s report. It’s much less narrative. It’s a point-by-point rebuttal, whereas the opening report can be a narrative.”
Similarly, writing for the Hofstra Law Review, Professor Arthur F. Greenbaum states “To facilitate comparison, rebuttal reports often mirror the structure of the opposing expert’s report, organizing the response point-by-point to directly address each contested issue.”
Remain Neutral and Professional
A rebuttal report is not a license to personally attack the opposing expert. Mechanical engineering expert David Smith notes, “From my perspective, it’s not my job to attack their credibility. I will do my best to give the attorneys whatever information they need. They certainly need to know if the other expert has said something incorrect or not technically accurate, or if there are arguments on both sides [. . .] they need to know those—and I’m happy to point those out.”
A dose of humility is important, according to engineering expert Dr. Stephan Athan, recognizing, “I don’t have all the answers. I wish I did, but I have access to neither all the information, all the reports, or all the resources. At the end of the day, you’ve got to [establish and limit] your role and move forward in that respect. This applies to both small firms and large firms, the reports, and the rebuttals.”
Conclusion
Rebuttal reports can be a gratifying, enjoyable part of working as an expert witness. Make sure that each point of your rebuttal is supported and focused. Do not use them to introduce new, unrelated opinions; and always remain professional in your critique—as your own initial reports are subject to rebuttals.
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