Tips on Writing an Expert Witness Report
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1 Tips on Writing an Expert Witness Report Joel P. Wiesen, Ph.D. 31th Annual IPMAAC Conference St. Louis, MO June 13, 2007 Wiesen (2007), IPMAAC Conference 1
2 Report Writing Tips Meant for new experts These tips are not exhaustive Feedback and other tips welcome Wiesen (2007), IPMAAC Conference 2
3 Number One Tip Be Honest Opposing expert will help keep you honest Opposing attorney may try to get a copy of everything you have ever written Be prepared to be grilled on your previous testimony and/or publications Wiesen (2007), IPMAAC Conference 3
4 Number Two Tip Remember, we are not lawyers We do not understand most aspects of legal proceedings Wiesen (2007), IPMAAC Conference 4
5 Types of Reports Affidavit Plaintiff s expert report Defendant s expert report Supplemental report Wiesen (2007), IPMAAC Conference 5
6 Affidavits Usually narrow in focus May be asked to write more than one May be used in connection with a motion e.g., motion for summary judgment Wiesen (2007), IPMAAC Conference 6
7 Plaintiff s Expert Report Usually wide ranging Define issues Set forth all the shortcomings Wiesen (2007), IPMAAC Conference 7
8 Defendant s Expert Report Usually focused on rebutting plaintiff s expert Address all issues raised by opposing expert Wiesen (2007), IPMAAC Conference 8
9 Federal Rules Federal rules mandate certain content List of your prior court testimony Your experience/qualifications Your compensation Basis for your opinions Wiesen (2007), IPMAAC Conference 9
10 Daubert Rule Admissibility of expert evidence Governed by Federal Rule of Evidence 702 Expert testimony must Be "relevant to the task at hand" Rest "on a reliable foundation" Wiesen (2007), IPMAAC Conference 10
11 Some Benefits of a Report Reasons for using a report can vary by case Help to get a more favorable settlement Support a motion for summary judgment Usually required in civil cases in federal court Wiesen (2007), IPMAAC Conference 11
12 These Tips Lessons learned from the trenches Not exhaustive Not in priority order Wiesen (2007), IPMAAC Conference 12
13 Legal and Scientific Issues Legal issues and scientific issues may be different e.g., Adverse impact of exam versus adverse impact of selections Wiesen (2007), IPMAAC Conference 13
14 What Issues to Address? Clarify with attorney topics/issues for you to address What are the legally important issues you need to address? Understand the legally important issues you need to address What exact issues does your attorney want you to address? Wiesen (2007), IPMAAC Conference 14
15 Talk to Your Attorney First BEFORE you put anything in writing and drafts may be discoverable Discrepancies in drafts may be focused on Different attorneys have different preferences/styles Format Length Wiesen (2007), IPMAAC Conference 15
16 Discuss Scope/Length With Attorney Discuss scope of report with your attorney Length desired (3 to 15 pages may be better than 15 to 100 pages) Topics to cover Level of detail desired Some attorneys want more or less exhaustive reports Wiesen (2007), IPMAAC Conference 16
17 Ask Your Attorney What are the issues you should try to address in your report? Then opine on specific topics/questions raised by your attorney What topics is your attorney not interested in? Wiesen (2007), IPMAAC Conference 17
18 Listen to Your Attorney These tips are general Your attorney must be trusted Wiesen (2007), IPMAAC Conference 18
19 Expert Report is Not a Scientific Paper Write for an intelligent lay audience Minimize jargon Use jargon correctly Define jargon and terms Define all abbreviations Be succinct Wiesen (2007), IPMAAC Conference 19
20 Write for an Intelligent Audience Cite page numbers in the material referenced, so reader can check what you say. Explain all complicated concepts Also explain seemingly simple concepts Wiesen (2007), IPMAAC Conference 20
21 Format of Report Get format from lawyer. It may include Cover page Table of contents Signature page Page numbering What word processor does attorney use? Many (most?) filings are electronic nowadays Wiesen (2007), IPMAAC Conference 21
22 Drafts Some attorneys want only one draft If there are revisions, edit the same file. Do not use successive revisions No discoverable trail Other attorneys unconcerned about drafts I have never been asked about earlier drafts Label report Draft until it is finalized Wiesen (2007), IPMAAC Conference 22
23 Review By Attorney Attorney should NOT write your report Your opinions are YOUR opinions Ask attorney if he/she wants to review your findings by telephone Before or after you have begun writing Ask attorney to review report for clarity, completeness Some do not do any review of reports Wiesen (2007), IPMAAC Conference 23
24 Exhibits Report should include all charts, graphs, quotes, that you may want to use as exhibits in court Wiesen (2007), IPMAAC Conference 24
25 Non-Opinion Content of Report Attorney will ask you for required content: A list of all recent publications A list of recent expert witness involvement Etc. Wiesen (2007), IPMAAC Conference 25
26 Other Things to Include List of all documents reviewed Prepare this as you work May have 50+ documents Identify each document clearly Title Date Length Bates stamp numbering Exhibit letter Wiesen (2007), IPMAAC Conference 26
27 Be Objective Do not become an advocate for your side Impugns your credibility Expert should be objective You represent the profession Wiesen (2007), IPMAAC Conference 27
28 Statement of Your Opinion State your conclusions clearly Do not puff but do not be wishy-washy Avoid, I believe or it seems Rather, The facts just described indicate Avoid superlatives like very, extremely, unless they are clearly warranted Wiesen (2007), IPMAAC Conference 28
29 What If I Am Not Sure? If you are not confident, tell your attorney May lead to settlement Wiesen (2007), IPMAAC Conference 29
30 Write Clearly Short clear sentences Active voice Perhaps state your conclusions at the onset and again at the end This differs from scientific writing Wiesen (2007), IPMAAC Conference 30
31 Present Numbers Clearly Use simple graphs and charts Interpret meaning of numbers p values Statistical test results Correlations Reliability Wiesen (2007), IPMAAC Conference 31
32 Educate Your Audience Explain statistical concepts Explain testing concepts Judges are bright Explain concepts needed to understand your report Wiesen (2007), IPMAAC Conference 32
33 Avoid All Errors NO TYPOS Typos impugn quality of report Be careful with statements about the professional literature Expect your statements to be challenged Be prepared to defend them Wiesen (2007), IPMAAC Conference 33
34 Hope For A competent expert on the other side Criticisms more likely to be reasonable Wiesen (2007), IPMAAC Conference 34
35 Some Practicalities Do not leave report writing to the last moment Have a system to keep track of documents Wiesen (2007), IPMAAC Conference 35
36 Be Professional Be respectful of opposing expert Point out errors politely Wiesen (2007), IPMAAC Conference 36
37 Deadlines Tell your attorney early if you foresee any delays Do not leave report writing to the last minute Wiesen (2007), IPMAAC Conference 37
38 Examples of Shortcomings Focus on topics not important to lawyers Many pages on issues not in dispute Many pages on an unimportant legal issue Ignore legally important issues e.g., job relatedness Wiesen (2007), IPMAAC Conference 38
39 Sample of a Good Report Jeanneret, 1/8/05 Title page Table of contents Starts with clear summary of opinions Basis for opinions clear Methodology clear Tables/charts understandable Citations to professional literature Room for improvement (explain acronyms) Wiesen (2007), IPMAAC Conference 39
40 Q & A s Questions/comments from the attendees Wiesen (2007), IPMAAC Conference 40
41 Closing Meant for new experts These tips are not exhaustive Feedback and other tips welcome Wiesen (2007), IPMAAC Conference 41
42 Best of luck as you start your expert witness careers! Copies of this presentation are available at: Wiesen (2007), IPMAAC Conference 42
43 References Babitsky, S. & Mangraviti, Jr., J.J. (2002) Writing and Defending Your Expert Report; The Step-by-Step Guide with Models. Falmouth MA, SEAK, Inc. Daubert on the Web. (2006) Downloaded 2/28/2007 from zip Wiesen (2007), IPMAAC Conference 43
44 Case Cited Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). Wiesen (2007), IPMAAC Conference 44
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