Hi, my name is Steven Babitsky. I’m the President of SEAK, Inc. I’d like to welcome Attorney James Mangraviti, with me this morning to talk about expert witness reports. Jim, why is it important to draft a well organized written report?
All right. It’s really important for an expert witness to draft an excellent witness report for some important reasons. Number one, that report that you have is what we would call ammunition in that anything and everything you write in that report can and will be used against you by the lawyer on the other side, basically to rip your throat out. So you kind of want to be careful with that.
Secondly, the report that you write what we like to tell experts it is immortal. What do we mean by that? What we mean by immortality of a report is that a lawyer in a future case 10, 20 years from now can dig up that report that you did from this case and use it against you to guess what? Rip your throat out. So it’s immortal.
And the final reason is if you write a really, really good report the lawyer that hired you is going to be very, very pleased, and he is going to spread the word. And what really drives the expert witness practice is word of mouth and repeat business. So for those three reasons really, Steven, you really want to concentrate on writing an excellent expert witness report.
So, Jim, how are expert witness usually organized?
Okay, it will definitely vary how you’re going to organize an expert witness report, depending upon, you know, there’s all kinds of experts out there. But I generally recommend the following outline. The first thing you want to have is a brief introduction defining the scope of the engagement which is really important for an expert witness because as an expert you want to stay within the scope of your assignment and not get outside of that because that’s when experts start to get into trouble.
Number two, you want to explain concisely but persuasively why, in particular, you are qualified as an expert to opine on the issues at hand in the case. So you want to generally give a synopsis of your qualifications as they relate to the issues of the case at hand. And then generally experts will attach a C.V. at the end.
The third thing you want to do is you want to talk about everything you did in the case, everything that you read, everything that you looked at, all the facts that you found. Get all those facts down, and that could be a very, very lengthy portion of the report, depending upon what the issue is.
And then the fourth and the final thing, again, this is a very general outline is to give your opinions. Expert witnesses are hired and retained to give their expert opinions, and you want to conclude by giving properly worded and well written opinions. Those are the four things I would recommend.
Okay, that’s another good question. Thank you. The legal requirements for expert witness reports will vary by jurisdiction. So you definitely want to check with retaining counsel as to what’s going on with that. Now that said, one of the things that all experts really should be aware of is that federal court has certain requirements for expert witness reports. If you’re doing work in federal court and a lot of experts do a lot of work in federal court, your report has to have the following things.
Number one, a complete statement of all opinions the witness will express and the bases and the reasons for them. This is right from Federal Rule 26. And in federal court you really have to be complete in disclosing things. They’re not tolerant of people holding things back.
Two, the facts or data considered by the witness informing them. Three, any exhibits that will be used to summarize or support them. Four, the witness’s qualifications, including the list of all publications authored in the previous 10 years. Five, a list of all other cases in which during the previous four years the witness has testified as an expert at trial or by deposition. Six, a statement of the compensation to be paid for the study and testimony in the case. And seventh, the report needs to be prepared and signed by the witness. So those are the rules for federal court that everybody should be aware of.
So, Jim, can you give us an example of some of the common mistakes we see in expert witness reports?
Sure. I could talk about three of them. The first mistake that you and I see all the time, Steve, and we review a lot of reports for clients as part of our seminars and whatnot. We see experts get out of their true area of expertise when it comes to the report.
So the doctor’s really talking about standard of care, he starts getting into life expectancy or causation. And when an expert gets out of the sandbox, as we like to teach, Steve, right? Bad things happen because they’re going to be very vulnerable. So that’s number one.
Number two is a poor choice of words. And the easiest example that we might see some other examples later as well is using an absolute word. So an expert will use a word in a report like always or never, and you know what? Because it’s such an absolute word it’s easy to show for the cross examining lawyer that that was an exaggeration and the lawyer can kind of beat you up on it. So you’ve really got to choose your words carefully.
And the third thing, the most common thing that you and I run into all the time are just out and outright mistakes, just sloppy mistakes, typographical errors, internal inconsistencies. And those things are absolutely devastating to the expert because it makes the expert look stupid, sloppy. It really destroys the jury’s confidence in the expert, and what’s most frustrating about those types of mistakes, we teach our experts all the time, is they’re 100% avoidable.
Steve So, Jim, what can happen to an expert witness if they make mistakes like this in their reports?
Well, bad things can happen and maybe if you’d be willing to be a good guinea pig, we could demonstrate with a little cross examination.
Be happy to Jim.
Dr. Babitsky, is that it?
All right. Now you wrote a report in this case, is that right?
Yes, I did.
And the report is dated April 19th, is that right?
Is this a copy of that report?
Yes, it is.
All right. Now simple question for you. Is this report your best work?
All right, and you tried your best, correct?
Because it’s important to try your best in something as important as a case like this. Isn’t that right?
We could agree on that.
All right. Now you’re a medical doctor, is that right?
That’s why they call me doctor, yes.
Okay. Now the examinee in this case is a 39-year-old woman, is that right?
And she was referred for evaluation of low back pain and right lower extremity discomfort, is that right?
Okay and you wrote in your report in your second paragraph that she reports that following this injury she remained off work until about December of 1998, is that right?
You also write that she went through a work hardening program as she attempted to return to her job, is that right?
All right. And you’re referring to the examinee, this 39-year-old woman, right?
And you also write that she indicates that her situation deteriorated substantially in August of 2001, is that right?
And you also wrote that she recalls that she was loading a 40 pound box onto a truck, is that right?
All right. When we get down to the next paragraph, you wrote that he says that his supervisor told him that he needed to continue working on the conveyor belt. Did you write that? He and his.
That’s what it says.
Well, this is a woman, right?
But you wrote he in here, is that right?
Yes, that’s a typographical error.
Let me ask you this. This next sentence where you wrote he indicates that he continued working. Is that two more typographical errors?
Okay. Well, let me ask you this. You’re a medical doctor, right?
I think we established that, yes.
You took like anatomy in medical school, right?
Jim You do know the difference between a boy and a girl, right? They taught you that there?
Yes I do.
Okay, the next sentence here where it says “He says that when he made this attempt he was told that he needed to be able to function 100% before he could go back to Acme.” You wrote that as well, is that right?
Yes I did.
Okay, is that just, did I just identify seven mistakes just in one paragraph of this report?
I believe you did.
All right. Now if you have 20 paragraphs in this report and we were to prorate that out, that’s 140 mistakes in this little tiny report, isn’t that right sir?
It could be.
Do you think you’d have a lot of confidence in a doctor that you went to that made 140 mistakes in 7 pages? Do you think that’d be a doctor you’d want to go to for surgery Dr. Babitsky if you were sick?
Thank you very much.
Jim, what resources does SEAK provide to expert witnesses to help them with their report writing?
We have a number of things that we do.
First we have many “Free Expert Witness Resources” and there are a number of things that you can download there which I think experts would find helpful.
Secondly, we published a book How to Write an Expert Witness Report which is available for sale on our website.
Thirdly, we have a number of upcoming expert witness training workshops.
And fourthly, for those requiring the highest level of service, we can work one-on-one with expert witnesses to help them improve their reports.
We generally do this in a couple of ways. The first way we do that is experts will send us their reports and we’ll critique them and show them how to do better in the future. But another thing that we do which is extremely helpful is we will actually help expert witnesses write their reports in a case at hand and that can really help them deliver the highest level product.