Rule 26 Expert Witness Legal Requirements

[The following clip was excerpted from SEAK’s Streaming course, “Law for Experts: What You Need to Know to Succeed“]

Expert Witness Legal Requirement For Rule 26
Okay. All right, so, federal court. Rule 26(2)(b) lists out very specific requirements for reports that are filed in federal court. Now, because they have such stringent requirements, some experts choose not to practice in federal court. Because they don’t wanna be bothered with having to deal with… well, one of the requirements is they have to keep track of cases that they’ve testified in for the past four years, either a deposition or a trial. Some people are so busy that they don’t feel like keeping those types of records. So, they don’t wanna deal with federal court. And so they’ll make a decision, a business decision at the outset not to practice in federal court. Other experts don’t have that luxury if all they do is patent litigation or cases that are in front of federal court, right? So then they learn to deal with it. But either way, you need to know what the outset and definitely before you write a report, is this case in federal court, okay?

All right, so this is what the court requires. Number one, a complete statement of all opinions you’re going to be expressing at trial, okay? That means that the report must fully state all of your opinions. If it doesn’t you may be… that opinion may be excluded. I’ve had a case in federal court where when the… and whenever any of the experts testified the court had their 26(b)(2) report in this hand. And if they said anything that wasn’t on the report they weren’t allowed to say it. I mean he held them to that report. Maybe an extreme example, but that’s what the courts do, they really take this rule very seriously. So, think about that. If the report has to fully state all of your opinions, you know, that’s just another reason not to allow counsel to bully you into writing a report when you haven’t yet formed all of your opinions, okay?

You have to then… item number two, the basis and the reasons for your opinions. All of the reasons that support your opinions. That should be in the report, anyway, but federal court specifically requires you to give your reasons, you can’t just give an opinion and say, “This party was negligent.” Or “This party was not negligent.” You have to say why, you’ve got to give the reasons why, it’s gotta be in the report.

The facts or the data you considered in forming your opinions. So you’re listing everything that you considered, all of the documents you reviewed if you went out and conducted studies and collected data. Everything that you’ve done you need to list in the report as well, okay? If you’re gonna be using exhibits, either to summarize your opinions or to support your opinions, that needs to be in there. So think about that. So at the time you write the report you need to be thinking about the presentation of your opinions in front of the jury.

So if there’s any charts, or graphs, timelines that you’ve prepared that you think would be useful for presentation to the jury, talk about it with retaining counsel and see whether or not that should be attached as an exhibit. Don’t just assume, “Okay, I’m gonna be using this chart.” You always need to talk to counsel. Retaining counsel makes all those decisions about what’s presented to the jury. You can suggest and say, “Look, I think my testimony would be enhanced by the use of this chart, it’s a really great way to summarize what we’re talking about.” And then counsel, you and counsel can go back and forth about how that can be presented to the jury. But don’t just assume, “Oh, I’m gonna use this chart.” Counsel decides. They’re in charge on strategy and how to present the case to the jury and what visual aids to use with the jury, okay? Yes. My understanding is, you have to attach the exhibits. This rule is taken very literally. And the qualifications of the expert. So usually somebody might have a summary of their qualifications, or more commonly people will attach their curriculum vitae which describes what their qualifications are.

Another reason why make sure when you’re starting off doing expert witnessing work you have a solid CV. Because that falls under facts or data considered. So medical literature or literature that you have relied upon and that support your opinion. You need to be listing that, you could cite it, you could list it and then also cite it, which I think is the best way to do it.

You don’t have to include a copy of it, you just have to identify it.

Yes, that you have reviewed it in support of your opinion. By the way, great practice, it’s awesome to have objective citations to the relevant literature in your industry to support what you say. It goes back to what I was saying yesterday where you get up there, you give your opinion and you’re basically saying if you have citations you’re telling the whole world, “Don’t just take my word for it. I’ve got this whole body of literature to back me up. I’ve got objective evidence to support what I’m saying.” That’s the best kind of opinion to offer. It elevates the believability of the opinion. You don’t necessarily need to… as long as you cite it properly so that people can find it, you don’t necessarily have to provide a copy of it in the report to federal court. You might have a copy of it, but I’m talking about what the federal court requires in terms of the report itself. Well, whether…

Yeah, I mean if they ask for you might have to turn that over, okay?

It’s also get access of the copy.

Yeah, exactly. All right. And then it doesn’t end at six, right? There’s more, right? You have to list all the publications that you authored in the past 10 years. Okay? And so, what is the definition of publications? What does that cover? Does that cover hardcopy publications? What about blog posts online? What about online newsletters that you author? How about a letter you wrote to the editor? Or a little blurb you wrote to the editor? What does publications mean? We had research done on this and honestly, there’s no set answer on what it means, okay? So err on the side of being more inclusive than not when you’re addressing this point about publications in the past 10 years.

Now, usually, your CV would contain publications that you have authored because that’s part of your qualifications. If you are an author in the industry, that elevates the believability of your opinions, right? You’re somebody who has written about this, you must be some sort of authority on it. You know, when you write… anybody here ever write in their industry, publish in their industry? Just the whole process of writing, it makes, you know, you learn something, right? Don’t you learn when you’re writing the whole process? And so that elevates your qualifications.

So usually this isn’t a big deal because people already have the publications in their CV. But you do have to make sure you go back 10 years. Typically the CV would contain all of your publications. But there have been occasions where I’ve caught people who have not… I found a publication that they’ve written, I found it online and it’s not in either their CV or in their rule 26(b)(2) disclosure and it’s one of those things that if you don’t comply with this rule you really risk not being allowed to testify. The federal court, they’re very tough about this rule. Okay, well, let’s see what the law says, what the requirement is. A list of all publications authored by the witness. Does it talk about the content of the publications? No. So all, what does all mean to you? What’s the common sense… no, really, what is the common sense meaning of the word all?


Everything. Everything. So what does that tell you as experts? What’s the take home?

Don’t write some crazy letter to the editor.

Yeah, right, don’t write some crazy letter to the editor. Be careful about what you publish. If you’ve written something in the industry that you now realize it was maybe wrong or ill-advised you might wanna retract it formally. Okay? So that’s not publications.

So it doesn’t count?

No, that doesn’t count. Okay, so you’re good. The compensation to be paid for the study and testimony… okay that’s, you know, usually a statement like I am being paid $300 an hour or $500 an hour for my work. Okay? If there’s a breakdown, a deposition, or trial you put that in there, some people have a different fee schedule for deposition or trial, you put that in there. A listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. So for the past four years, you have to provide a list of the cases that you’ve testified, trial or deposition, that does not include testifying at arbitration. And so you don’t need to include that.

And where should this list be? Should this list be in your CV? Absolutely not, right? Absolutely not. It’s a separate schedule that you maintain. Okay. Just for going back four years.

Why do you think the reason is for this rule? Why is it so important? Why would this rule be in here about where you’ve testified in the past, you know, four years under oath at trial or deposition?

Well, what’s the other attorney going to do with that information? Part of that portfolio, right? They’re gonna study everything you have said in the past under oath, they’re gonna categorize it, they’re gonna have it in a document ready to go with all of those transcripts ready if you say something different. Why is it so powerful? Because it’s your prior statement under oath. Again, nothing more powerful than confronting somebody with their own words, especially when they’re under oath, okay? Yes.

It’s not just federal, right? There’s any case.

That’s right, any case, any case. Yes.

Why shouldn’t it be in your CV?

It shouldn’t be in your CV because you might be working on a state case where that requirement is not there. So why are you giving free information to counsel in the state case about cases that you’ve testified in the past?

That’s right. You should only have one version of your CV. So the one version of your CV should apply to both federal and state court. This requirement is a federal court requirement, it’s not necessarily a state court requirement, okay? So that is consistent with the recommendation to only have one CV.

So what do we mean by a list of other cases? The book talks about… the course book identifies… going back four years, hold on. So look at page 98, okay? So, under item nine, write a list of all other cases. So what should this list contain? The name of the case, the docket number, the court, the dates, and whether the testimony was at trial or deposition. That’s it. Should you put in there what the outcome was? Should you put in there what the monetary outcome was, as a result of your testimony? No.

You may not know it yet

I’m sorry, you may not know, right. But don’t put… some people will make the mistake of indicating, “Oh, defense win…” they give more information than they need to. This is all that’s required for you to put in. Yes.

Is it bad for an expert to point out?

Is it bad to put it? It’s not bad, but is it required? No. All you have to do is provide what’s required. It’s the civil requirements. There are criminal rules of procedure that you would talk to counsel about, they may be a little bit…

Yeah, they may be… well, I mean you wanna talk to counsel I’m not sure if the federal criminal rules of procedure are different in terms of what they require. So just double check if this might apply to them, but I can’t tell you for sure, okay? So you’re in the middle of the page, you’re under item nine, the list should contain the name of the case, the docket number, etc. And then item number 10, the report has to be prepared and signed by the witness. And this is where I contain that citation to that federal court case I was telling you about, bottom of page 98, top of page 99, okay? Patent infringement action, the liability expert for the alleged infringer was excluded. That individual was excluded because the lawyer wrote the 64-page report. Okay?

This is what the court said at the top of page 99. He did not draft his own report, defense counsel drafted it for him. The court finds that practice to be a remarkable breach of ethics and protocol which defense counsel brazenly attempted to justify it or at oral arguments. Okay? So you need to sign your own report, write your own report, and don’t let retaining counsel write it for you. Okay?

[The foregoing clip was excerpted from SEAK’s Streaming course, “Law for Experts: What You Need to Know to Succeed“]