Last month, we discussed in general terms the implications of scripting your expert. When it comes to expert reports, however, do the same rules apply?
Many trial attorneys consider some level of involvement in the expert report to be vital. As a skilled storyteller, the attorney can assist the expert in conveying both the subject matter and the story.
“Obviously attorneys have to have some input into the expert report,” said one expert witness. “But who’s to say when it becomes too much?”
Rule 26 of the Federal Rules of Civil Procedure explicitly states that the report is to be "prepared and signed by the witness." Instead of giving the expert carte blanche in writing the report, this then becomes an issue of the degree to which an attorney should be involved.
For those attorneys who believe that they should be actively involved in the preparation of the report, it simply becomes another aspect of their responsibilities on each case. They are shaping the language used to make a point and ensuring that the expert’s conclusions are in line with the attorney’s arguments.
The danger of an attorney’s over-involvement is that it opens the report to impeachment. Joseph C. Markowitz, a trial attorney, agrees. "After a reasonably competent deposition, if it looks like the attorney drafted the report, his supposedly independent expert testimony is not going to look so independent, is it?"
Other experts agree, having firmly established expectations for the level of involvement attorneys have in writing reports. “As an expert, I invariably write all my own reports,” said expert Harry G. Brittain, Ph.D., FRSC. “I will confer with attorneys at the outset to discuss scope, but at the end it is my signature on the last page, and I am the only one under oath during the process.”
Just as over-involvement is perilous, under-involvement is equally risky, exposing an attorney to loss of control of the evidence needed to make the case. To solve this discrepancy, experts advise that attorneys simply provide all the necessary information before the expert begins the report. Specific suggestions include informing experts of jury instructions, identified burdens of proof involved in the case and what questions need to be answered in the report.
"The trial attorney’s involvement in the expert witness's report should come at the vetting stage," suggests Justin Strother, a litigator. "Simply put, an attorney should not hire an expert who he or she does not confidently believe will write a favorable report."
This article was taken in part from another article by Robert Ambrogi.
Tell us: How involved do you think an attorney should be in the preparation of an expert report?