Expert Witness Reports – Avoiding Litigation Sand Traps – What They Should and Should Not Include

You have hired an expert and are in need of a report or findings for you expert disclosures. What do you do?  Here is a short checklist of things to consider:

 
1. Compliance with Federal Rule of Civil Procedure 26. This probably is a good
place to start. The Rule provides in pertinent part as follows for witnesses hired in anticipation
of litigation:

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule

26(a)(1), a party must disclose to the other parties the identity of

any witness it may use at trial to present evidence under Federal

Rule of Evidence 702, 703, or 705.

Regarding reports, the Rule goes on to state:

(B) Witnesses Who Must Provide a Written Report.

Unless otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report—prepared and signed by
the witness—if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party’s employee regularly involves giving expert testimony.  

The report must contain:

(i) A complete statement of all opinions the witness will
express and the basis and reasons for them;  

ii) The facts or data considered by the witness in forming
them;

(iii) Any exhibits that will be used to summarize or support
them;

(iv) The witness’s qualifications, including a list of all
publications authored in the previous 10 years;  

(v) A list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and  

(vi) A statement of the compensation to be paid for the study
and testimony in the case.

As to those witnesses who are typically skilled witnesses or fact witnesses with specialized or
technical knowledge, it states:

(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:  

(i) The subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705; and  

(ii) A summary of the facts and opinions to which the witness
is expected to testify.  

The timing of these disclosures is typically outlined in the Case Management Plan as noted in the
Rule:

(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: 

(i) At least 90 days before the date set for trial or for the case
to be ready for trial; or  

(ii) If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after the other  party’s disclosure.  

(E) Supplementing the Disclosure. The parties must supplement
these disclosures when required under Rule 26(e).  

Do not forget the obligation to seasonably supplement your expert responses!
This obligation is continuing and requires no additional request by the opposing party.

 2. Narrative of facts versus summary of materials reviewed.
Narrative formats are time consuming and subject your expert to attack if he misstates or
misinterprets a record. It also poses problems when there are conflicts in the evidentiary record
that have to be resolved by the jury. Providing a factual summary does require your expert to
review and analyze the record and shows that he has considered all relevant evidence. This
process also better prepares the expert to testify and draft reports may expose gaps in your
expert’s knowledge before final conclusions are reached. However, ultimately the documents are
the best evidence, and listing the items is both cheaper and avoids the pitfalls associated with
summarizing voluminous records.

3. Oral reports versus written reports. Early reports should probably be made
verbally. A summary of findings can be made by counsel in his notes which is protected under
the work product privilege. Once the record matures and the facts are clear, reports should be
considered depending on the requirements of your jurisdiction.

4. The problem with draft reports. Such reports only pose a problem if
discoverable. In federal court only the final draft is discoverable. Check your state law on this
topic to see if it differs. 

5. Communications with expert and the work product privilege.
Such communications only pose a problem if discoverable. In federal court only correspondence
containing assumptions of fact or which outline the factual basis for the expert’s opinion are
discoverable. Check your state law on this topic to see if it differs. 

Working with your expert on providing a report that is accurate, complient, clear and concise is critical.  This checklist should help.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on February 26, 2017, in Evidence, exclusion of witnesses, experts, Rule 26, rule 702, Rule 704, Rules of Evidence, Trial Advocacy, Trial Rules. Bookmark the permalink. Leave a comment.

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