Cross-Examination of an Expert Witness – Boilerplate Language

//Cross-Examination of an Expert Witness – Boilerplate Language

Cross-Examination of an Expert Witness – Boilerplate Language

My name is Steve Babitsky, president of SEAK Incorporated, and I’m here today with my partner Jim Mangraviti who has graciously agreed to assist us with a demonstration of what happens if you have a report, an expert witness report, with too much boilerplate language. Okay, Mr. Mangraviti, is this your 40 page report?

Jim Mangraviti: Yes.

Steve Babitsky: And this is your original work, correct?

Jim Mangraviti: What do you mean by original work?

Steve Babitsky: It’s your report, you wrote it, correct?

Jim Mangraviti: I already said that, yes.

Steve Babitsky: Do you know what boilerplate material is sir?

Jim Mangraviti: I’ve heard that term before, could you remind me?

Steve Babitsky: Sure, it’s standard language you use over and over again in your report.

Jim Mangraviti: Okay.

Steve Babitsky: And this report has a tremendous amount of boilerplate language in there, right?

Jim Mangraviti: Well, I mean, I use boilerplate like all experts do but I don’t know if I would agree with the characterization that it’s a tremendous amount.

Steve Babitsky: Okay, well page one is the introduction, and that’s about this specific case, correct?

Jim Mangraviti: Of course.

Steve Babitsky: Now, let’s look at your report. Now, pages two, three, and four… that’s the standard introduction that you use all the time in your reports, correct?

Jim Mangraviti: Yes, I mean, this is language that is similar in most reports yes.

Steve Babitsky: Okay, so this is boilerplate, right?

Jim Mangraviti: I guess you could call it that.

Steve Babitsky: Okay, now let’s look at some other part. Now, page four of your report… that’s actually about this case, correct? That’s another page that you actually wrote about this case, correct?

Jim Mangraviti: Correct.

Steve Babitsky: And, now pages five to ten, that’s your curriculum vitae, correct?

Jim Mangraviti: Right, that’s my CV.

Steve Babitsky: Okay and that’s, of course, more boilerplate standard language you use in all these reports correct?

Jim Mangraviti: Well, my CV’s in every report, right.

Steve Babitsky: So, right now, of the 40 pages you have you have 2 original pages correct?

Jim Mangraviti: I have two pages in my hand.

Steve Babitsky: Good, now you wrote about the 2008 recession in this report, correct?

Jim Mangraviti: Yes.

Steve Babitsky: Okay, and the next four or five pages about that standard language you use in all of your reports, about the recession, correct?

Jim Mangraviti: Well, I only used this language in cases dealing with the 2008, when it was relevant.

Steve Babitsky: Right, and that’s… in those cases you use this language over and over again, correct? The 2008 recession is not going to change now right?

Jim Mangraviti: In those cases, right.

Steve Babitsky: Okay, so this is more standard boilerplate language from this report that you used, correct?

Jim Mangraviti: It’s language I’ve used before, correct.

Steve Babitsky: Now, you have the same methodology in a lot of these cases, correct? You do the same thing, different cases, same methodology used over and over again, correct?

Jim Mangraviti: Correct; I don’t re-invent the wheel sir.

Steve Babitsky: Right, and in this report you have a fair number of pages with the standard methodology used in these kinds of cases correct? And these are the pages with that, right?

Jim Mangraviti: Yes, what I do is I give a detailed description of my methodology so that everyone can understand what I did.

Steve Babitsky: All right. This is more boilerplate, or standard, language correct?

Jim Mangraviti: It’s used in multiple reports because I use the same methodology.

Steve Babitsky: Okay. Now, eventually in your report you come to your conclusions, correct?

Jim Mangraviti: Of course.

Steve Babitsky: And in this report you have two pages of conclusions correct, and opinions?

Jim Mangraviti: Yes.

Steve Babitsky: So sir, of the 40 page report that you started out with, most of which is now on the floor crumpled up, how many pages of original work do you have left in your hand?

Jim Mangraviti: There are four pages in my hand, Mr. Babitsky.

Steve Babitsky: Do you still maintain, sir, that this was your original work or isn’t it really true that almost the entire report is made up of boilerplate language and standard language that you use over and over again?

Jim Mangraviti: I guess I don’t know how to answer that question.

Steve Babitsky: Thank you very much sir, Okay.

Okay, so what we’ve just seen is a demonstration of what happens to an expert witness that has a lot of boilerplate language or standard language in his reports. Jim and I run into this all the time with expert witnesses. They develop a routine, they have standard language, and they use it over and over again. This can be very troublesome for expert witnesses; we’ve had numerous cases in which expert witnesses got into a lot of trouble by using standardized language. As a matter of fact, sometimes, if you give them two or three of their reports and you lay them out on the table the reports almost look exactly the same.

Attorneys will pounce all over this because it’s easy pickings’ and they will cross-examine somebody and if the fact finder, the jury, or the judge feels that this expert witness is not doing original work and is actually doing the same thing over and over again and coming up with the same result that could seriously impact the credibility of the expert witness.

So, what should an expert witness do when they’re writing a report to avoid this kind of cross-examination? I’d say a couple of points. Number one is to try and cut down on the standardized language in your reports if possible. As Jim mentioned during the demonstration there are times to use standardized language, but don’t overuse it so that the report gets overtaken by standardized language.

Make sure that the standardized language fits the case and a third thing, and most important thing, is if you’re going to use a lot of boilerplate standardized language, what I’d recommend is that you break it up into sections and incorporate facts about the case throughout the report so that someone cannot pick up your report and show you page after page after page which is standardized language which you’ve taken from other reports. Jim, what resources does SEAK provide to witnesses to help them with their report writing?

Jim Mangraviti: All right, we have a number of things that we do. First, if you go to testifyingtraining.com and you click on ‘free resources’ there’s a number of things that you can download there which I think experts would find helpful. Secondly, we published a book called How to Write an Expert Witness Report which is available for sale on our website.

Thirdly, we have a number of seminars that we run each year for experts on expert witness training. If you want to get a list of those and what’s coming up go to testifyingtraining.com, click on the seminars tab, and it will show you what’s coming. And, fourthly, for those requiring the highest level of service we will work one-on-one with expert witnesses to help them improve their reports.

We generally do this in a number of ways. The first way we do that is experts will send in their reports and we’ll critique them and show them how to do better in the future. But another thing we do that is extremely helpful is we will actually help expert witnesses write their reports in a case at hand and that can really help them to deliver the highest level product so visit us at testifyingtraining.com to learn more.

By |2018-10-31T14:32:00+00:00September 8th, 2014|Blog|Comments Off on Cross-Examination of an Expert Witness – Boilerplate Language

About the Author:

Alex Babitsky, MBA as a Partner of SEAK, Inc., (The Expert Witness Training Company) I deal with expert witnesses and the attorneys, insurance companies and paralegals who retain them on a daily basis. I manage SEAK’s Directories, which include: SEAK Expert Witness Directory: www.SeakExperts.com SEAK Medical File Review Consultants Directory: www.FileReviewConsultants.com SEAK National Directory of Independent Medical Examiners: www.IMEDirectory.com I've authored numerous books including: ● The National Guide to Expert Witness Fees and Billing Procedures ● The A to Z Guide to Expert Witnessing ● What All Physicians Considering Starting an IME Practice Should Know ● How to Market Your Expert Witness Practice: Evidence Based Best Practices I have also been on the faculty for the National Expert Witness Conference. In addition, I manage our various websites, blogs and SEO.