by
Robert Ambrogi - Editor
BullsEye Newsletter: September 2008
Hands off or hands on? That is the question for litigators
and experts alike as to the lawyer's role in writing the expert's report.
The answers lawyers give to that question are anything but black-and-white.
Rather, many trial lawyers see their role in the report as a matter
of nuance, finessed through experience. Whereas the expert is skilled
in a subject, they say, the lawyer is skilled in storytelling. The
lawyer's job is to ensure that the expert's report conveys both the
subject and the story.
"It is an art, I want to stress," says Michael J. Abernathy, chair
of the Intellectual Property Department at Bell, Boyd & Lloyd, Chicago. "You
have to be involved in this without crossing the line in terms of improperly
molding the expert's opinion."
Federal courts require a written expert report pursuant to Rule 26
of the Federal Rules of Civil Procedure. State court rules vary in
their requirements for a report. Rule 26 explicitly states that the
report is to be "prepared and signed by the witness."
But does Rule 26 mean the lawyer must give the expert carte blanche in
writing the report? Lawyers generally agree it does not, but they do
not necessarily agree on the appropriate degree of their involvement.
The danger of a lawyer's over-involvement is that it opens the report
to impeachment.
"I would rather have a very objective report with minimal attorney input
than a report which is overly managed by counsel," says Russell Boltwood,
vice president of licensing and intellectual property at UTStarcom Inc. in
Alameda, Calif. "Ultimately, a report which is heavily managed by attorneys
for content will not likely withstand good impeachment by opposing counsel's
experts."
At the same time, under-involvement is equally risky, exposing a lawyer
to loss of control of the evidence needed to make the case. Andrew
R. McGaan, a litigator with Kirkland & Ellis in Chicago, recalls
his fear as a young lawyer of being too hands-on with an expert and
how a mentor changed his view.
"A senior lawyer at my firm once said to me: Would you rather have it
come out that you played a role in the opinion or would you rather have come
out an opinion in which you played no role?"
McGaan has had no qualms about playing a role in the process ever since.
It is a role he likens to that of a translator, one that will require
more or less of his involvement depending on the experience of the
expert.
"Whether the subject is chemistry or metallurgy or antitrust, you're taking
someone who's not an expert in telling stories to juries," McGaan says. "Sometimes
that means helping the expert to write the report, sometimes it means helping
the expert to express it orally at trial."
In no case, however, would McGaan tell the expert what to put in the
report. "The expert has to own it and defend it as their own with
great conviction." He approaches his relationship with the expert
as one of absolute transparency. "I tell the expert, 'Everything
we're doing here, I welcome you to describe to the adversary.'"
Still, there is danger in merely the appearance that the lawyer too
heavily controlled the report. Inevitably, the expert will be deposed
and "may be asked about every draft, every sentence, and even
every comma in it," says Joseph C. Markowitz, a trial lawyer in
Los Angeles. "So, after a reasonably competent deposition, if
it looks like the lawyer drafted the report, his supposedly independent
expert testimony is not going to look so independent, is it?"
If it is important to have an expert whose report stays on message,
then the better route is to properly vet and prepare the expert well
before the report is ever written, lawyers agree.
"The trial lawyer's involvement in the expert witness's report should
come at the vetting stage," suggests Justin Strother, a litigator in Houston. "Simply
put, an attorney should not hire an expert who he or she does not confidently
believe will write a favorable report."
It is also important for the lawyer to help the expert understand the
broader theories of the case and the law that underlies them. In particular,
the expert needs to understand how the law of the case relates to the
report.
"I'm not shy about saying to the expert right up front, 'This is our position,
are you capable of giving an opinion that A caused B or did not cause B?'" says
Andrew McGaan. "I need to know how the expert will answer these questions."
In Vermont, where Richard Cassidy practices with the Burlington firm
Hoff, Curtis, Pacht, Cassidy, Frame, Somers & Katims, judges require
that an expert's opinion be based on a "reasonable degree of
certainty." Cassidy represented a client who alleged he had been
fired in retaliation for a worker's compensation claim.
In the underlying compensation case, which Cassidy did not handle,
the medical expert wrote in his report that he could not say with a
reasonable degree of certainty that the client's medical condition
was related to his work. When Cassidy took over the case and met with
the doctor, he discovered that the doctor had misunderstood the degree-of-certainty
bar to be much higher than the law required.
"With the information I gave him, the doctor’s opinion was that
the condition was in fact work related," Cassidy recalls. "After
his deposition was taken, the case settled for a considerable payment."
There is a lesson in that story for all lawyers who work with expert
witnesses, Cassidy believes. "The moral of the story is that you
don't have to be a cynical manipulator to want to have considerable
input into the expert's report. Great mischief can occur if you don’t
have such input."
Tell us what you think. How much input should attorneys
have in the writing of the expert's report?
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