What Can Happen if You Allow Retaining Counsel to Write or Draft Your Expert Witness Report

[SEAK is the expert witness training company. The following clip has been excerpted from SEAK’s course, “How to Start, Build, and Run a Successful Expert Witness Practice.” Thank you for watching.]

So, here’s another case. Here’s a case you can look up on Google Scholar. This is a federal case and a decision handed down in a patent case excluding an expert witness. And it was handed down by Judge David Lawson. I’ve had the honor of teaching with Judge Lawson for a number of years, brilliant jurist. And I’ve also had the honor and privilege of being mentored by the judge.

And in this particular case, Judge Lawson struck down a witness when the judge learned, threw out the witness, and issued this opinion when the judge learned that the expert witness’s report had a little problem in it. And that is the retaining lawyer wrote the report and not the expert. So, this is what Judge Lawson had to say in his written opinion that will be forever immortalized on Google Scholar and everything else.

The name of the witness is, and we’ll see more of this later, Mr. Justice, “The most problematic of the witnesses is Michael Justice, a defense liability expert. The problem with Justice’s testimony stems from the fact that he did not draft his own report, defense counsel drafted it for him.” Listen to this language. “The court finds that practice to be a remarkable breach of ethics and protocol, which defense counsel brazenly attempted to justify at oral argument.” Ouch.

The judge went on to write in his opinion that “The conclusion is inescapable that Mr. Justice is nothing more than a highly qualified puppet, and the opinions in his report do not reflect his own reasoned views of the case.” Highly qualified puppet is probably not something you want to put on the elevator speech of your CV. Brutal.

And this is immortalized by a federal judge. “Because Mr. Justice did not furnish a report that even approximated his original work in this case, and he could not apply the facts of the case to the principles upon which an obviousness opinion necessarily is based…” obviousness is an invalidity defense on a patent case, “…he cannot testify as an expert in this case. Proper application of the court’s gate-keeping role requires this result. Unfortunately, dispensing justice in this case calls for dispensing with Justice.”

One of the things I love about Judge Lawson is he has a sense of humor. But seriously, brutal, brutal, brutal, and 100% avoidable because this expert, Mr. Justice, for whatever reason, he felt pressure, maybe he didn’t know any better, I don’t know the reason, allowed a lawyer to write a report for him and basically put words in his mouth far beyond the appropriate level of assistance that a lawyer is allowed to give. A hundred percent avoidable mistake.

SEAK is the expert witness training company. What you have just seen has been excerpted from SEAK’s course, “How to Start, Build, and Run a Successful Expert Witness Practice.” Thank you for watching.