The Preparation of Expert Reports to be Used in a Civil Lawsuit: A Guideline for the Expert Witness

Transcription

1 The Preparatin f Expert Reprts t be Used in a Civil Lawsuit: A Guideline fr the Expert Witness by Nigel Kent Clark Wilsn LLP tel npk@cwilsn.cm with revisins made in 2011 by Raman Jhal Clark Wilsn LLP tel rxj@cwilsn.cm

2 TABLE OF CONTENTS INTRODUCTION... 1 THE ROLE OF LEGAL COUNSEL IN PREPARING THE REPORT... 1 EXPERT OPINION EVIDENCE: THE TESTS FOR ADMISSIBILITY... 2 PROCEDURAL REQUIREMENTS AND FORMATTING THE REPORT... 3 THE EXPERT S FILE MATERIALS AND WORKING PAPERS... 5 PARTICIPATION AT TRIAL... 6 CONTACT BY OPPOSING COUNSEL... 6 CONCLUSION Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T

3 The Preparatin f Expert Reprts t be Used in a Civil Lawsuit: A Guideline fr the Expert Witness INTRODUCTION The rle f Trial Judge is t decide the issue in dispute by applying the law t the facts f the case. The findings f fact are based n evidence including dcuments, bjects and, f curse, the testimny f witnesses. Whether evidence can be received r cnsidered by the Curt is determined by a cmplex set f rules, bth substantive and prcedural, gverning the admissibility f evidence. It takes many years and many trials befre even a s called trial lawyer can gain mastery f these rules. The testimny f experts is ften necessary s that a Trial Judge can prperly understand scientific r technical issues relevant t the lawsuit. As with ther evidence, hwever, the evidence f an expert is als subject t cmplicated rules respecting admissibility. The expert witness des nt knw (and cannt reasnably be expected t knw) these rules. The purpse f this brief guideline is t utline sme f the d s and dn ts in that regard t help ensure nt nly that the expert s evidence is admissible but that it als receives all apprpriate respect. THE ROLE OF LEGAL COUNSEL IN PREPARING THE REPORT Legal cunsel nt nly can but, frm a practical pint f view, must assist the expert in the preparatin f any reprt t be used as evidence in the lawsuit. Hwever, it is critical that the pinins expressed in the reprt be thse f the expert and the expert alne, and it is imprper fr legal cunsel t influence the expert s analysis r cnclusins. Legal cunsel can and shuld: fully explain the backgrund t the lawsuit, the issues in dispute and the purpse t be served by the prpsed expert pinin/reprt; prvide cpies f all available and relevant dcuments necessary fr the expert t frmulate his r her pinin; identify the facts that are t be assumed by the expert as the fundatin fr his r her analysis and pinin; review with the expert any additinal facts r dcuments that the latter cnsiders necessary fr the purpses f the analysis r pinin; with the assistance f the expert, if necessary, frmulate the questins that are t be answered in the reprt; Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T

4 p. 2 prvide clear guidance with respect t the frmatting f the reprt, particularly having regard t the requirements f the Rules f Curt; and review draft reprts and make apprpriate suggestins re: the presentatin and frmatting (but nt the substance) f the pinin. It must be brne in mind that the Curt will reject as inadmissible any expert reprt which has been unduly revised r clarified at the suggestin f and in cnsultatin with legal cunsel. While there is ften a fine line between what is permissible and impermissible in this regard, it must be understd by the expert that the substance f the pinin shuld nt be changed r influenced by legal cunsel. EXPERT OPINION EVIDENCE: THE TESTS FOR ADMISSIBILITY Generally speaking, the pinins f expert witnesses will be admitted int evidence if the fllwing criteria are met: 1. Relevance: the pinin must be relevant t the issues in dispute in the lawsuit. Relevancy in this regard is decided by the Trial Judge as a questin f law; 2. Prper Qualificatins: the witness must be duly qualified as an expert n the matters abut which the pinin is being expressed. Such expertise can be acquired thrugh frmal academic studies r simply as a matter f substantial experience; and 3. Necessity: the pinin must relate t a subject matter which is utside the rdinary experience r knwledge f the Trial Judge such that the pinin is necessary fr the Trial Judge t fully appreciate the technical r scientific issues and t frm a crrect judgment abut it. Anther way t appreciate the tests fr admitting expert pinins int evidence is t review sme f the mre cmmn bjectins raised in the case law and which Curts have relied upn t reject prpsed expert evidence. These bjectins include: 1. Usurping the Judge s Rle: the reprt intrudes int the exclusive jurisdictin f the Trial Judge eg. purprts t make findings f fact r law, interprets agreements, allcates fault etc.; 2. Unnecessary Evidence: the pinin relates t matters f cmmn sense and general knwledge, within rdinary human experience and, accrdingly, n expert testimny n the pint is required; 3. Lack f Qualificatins: the pinin is utside the expert s specific area f expertise; 4. Simply Argument: the expert reprts will be rejected if they simply amunt t arguments in the guise f evidence. As ne Judge put it, it is apprpriate fr the Curt t enfrce reasnable limits upn the admissibility f pinin evidence t ften, persns with special training r experience are retained t cnstruct scenaris r Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T

5 p. 3 advance arguments in the frm f an pinin when, with prper assistance frm cunsel, the Curt is able t itself analyze the evidence and reach a prper cnclusin ; and 5. N Fundatin: the expert pinin is based upn facts that have nt been prperty prved by way f admissible evidence at the trial. It is the respnsibility f legal cunsel t ensure cmpliance with the criteria fr admitting a prpsed expert pinin int evidence. Hwever, the expert can assist the prcess by: cnfining his r her pinin t the facts as stated and the dcuments prvided (where additinal facts r dcuments are required, the expert shuld discuss the matter with legal cunsel befrehand); maintaining cmplete bjectivity and framing the pinin in a dispassinate and nnargumentative manner; and being careful t stay within the designated area f expertise. PROCEDURAL REQUIREMENTS AND FORMATTING THE REPORT The Supreme Curt Civil Rules prvide fr certain prcedures that must be fllwed in rder fr expert pinin t be admitted int evidence at a trial in British Clumbia. Such evidence must be tendered by way f a written reprt prir t any ral testimny. As such, Rule 11 2 f the Supreme Curt Civil Rules cnfirms that experts have a duty t assist the curt and nt t be an advcate fr any part. Accrdingly, the expert must certify that he r she is aware f that duty, has prepared the reprt in cnfrmity with that duty and if called n t testify, will give testimny in cnfrmity with that duty. Any expert reprt has t be prepared and tendered t the ther party in the lawsuit at least 84 days befre the scheduled trial date. Rebuttal reprts (in respnse t the ther side s expert) are due 42 days befre the scheduled trial date. The Rules als require that expert reprts set ut the fllwing: 1. the expert s name, address and area f expertise; 2. the expert s qualificatins and emplyment and educatinal experience in his r her area f expertise; 3. the instructins prvided t the expert in relatin t the prceeding; 4. the nature f the pinin being sught and the issues in the prceeding t which the pinin relates; 5. the expert's pinin respecting thse issues; 6. the expert s reasns fr his r her pinin, including Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T

6 p. 4 i. a descriptin f the factual assumptins n which the pinin is based, ii. iii. a descriptin f any research cnducted by the expert that led him r her t frm the pinin, and a list f every dcument, if any, relied n by the expert in frming the pinin. If the expert s pinin changes in a material way, he r she is required t prepare a supplemental reprt. In ding s, the expert must set ut the change in the reprt and the reasn fr it. They must again include the certificatin described abve. There are n rules respecting the precise manner in which an expert reprt shuld be frmatted. Sme reprts take the frm f crrespndence t cunsel n the expert s letterhead. Others take the frm f multi page, cerlx bund prfessinally printed presentatins replete with phtgraphs, charts and diagrams and even cmputer generated imagery. The key t an effective expert reprt, hwever, is clarity and rganizatin. Each segment f the reprt shuld have its separate heading and in lengthy reprts a table f cntents is invaluable. At a minimum, the reprt shuld be divided int the fllwing sectins: 1. Certificatin: include the required statement cncerning the expert s duty t the curt; 2. Intrductin and Backgrund: identificatin f the subject matter f the reprt and the purpse fr which it is being presented; 3. Qualificatins: a cpy f the expert s resume shuld be attached as an Exhibit t the reprt but, under this heading, the expert shuld summarize his r her particular experience and qualificatins relevant t the subject matter f the reprt. This will help the Trial Judge decide hw much weight shuld be given t the pinin that fllws; 4. Facts and Assumptins: in sme instances legal cunsel (ften with assistance frm the expert) will have prepared a Statement f Assumed Facts. These are facts that the legal cunsel is instructing the expert t assume fr the purpses f his r her reprt. They are facts which legal cunsel expects t prve based n the evidence he r she intends t lead befre the Trial Judge. In additin, hwever, the expert shuld list any dcuments (including dcuments prvided by legal cunsel) upn which the expert has relied fr the purpses f btaining infrmatin r frmulating his r her pinin; 5. Questins t be Addressed: t the extent the expert has been requested t express an pinin n specific issues r questins, the latter shuld be clearly delineated; and 6. Bdy f the Opinin: here the expert actually sets ut his r her pinin with respect t the issues t be addressed/questins t be answered. Where there are multiple issues/questins, it is preferable t address each ne separately, in lgical rder and with discrete sub headings Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T

7 p. 5 The expert shuld prepare his r her initial reprt in draft and submit it t legal cunsel fr review and cmment. While legal cunsel must nt influence the substance f the expert s pinin, he r she will ften be in a psitin t make suggestins regarding frmatting the reprt t imprve presentability and, f curse, t ensure cmpliance with the technical rules re: admissibility. Thereafter, the reprt can be finalized, signed by the expert and issued t legal cunsel fr transmittal t the ther side in due curse. THE EXPERT S FILE MATERIALS AND WORKING PAPERS Previusly, until such time as the expert reprt was tendered as an Exhibit at trial r the time when the expert was actually called as a witness t give ral evidence at trial, all dcuments in the pssessin f the expert witness (r legal cunsel) related t his r her assignment were privileged i.e. the ther side culd nt cmpel prductin f the same. Hwever, Rule 11 6(8) nw permits the ppsite party the right t demand access t the expert s file. The party wh serves a reprt must, prmptly upn being asked by the ppsite party, prvide t the requesting party any r all f the fllwing: 1. any written statement r statements f facts n which the expert s pinin is based; 2. a recrd f any independent bservatins made by the expert in relatin t the reprt; 3. any data cmpiled by the expert in relatin t the reprt; 4. the results f any test cnducted by r fr the expert, r f any inspectin cnducted by the expert, if the expert has relied n that test r inspectin in frming his r her pinin, and 5. the cntents f the expert s file (at least 14 days befre the scheduled trial). Dcuments that may be included in the expert s file include: earlier drafts f the expert s reprt; wrking papers in respect f the expert s analysis; crrespndence between the expert and thers, including legal cunsel; and dcuments re: the fee agreements with remuneratin f the expert. The purpse f requesting an expert s file and wrking papers, f curse, is t see whether this material prvides fertile grund fr crss examinatin. The questin therefre arises whether expert witnesses (and indeed legal cunsel) shuld retain r discard early drafts and ther preliminary materials. As yet, there is n definitive case law addressing whether it is prper fr an expert t discard early drafts r ther material that might prvide ammunitin fr crss examinatin. Mst legal cunsel sit n the fence and suggest that the expert simply fllw his r her standard practice in that Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T

8 p. 6 regard. S lng as there is a lgical reasn fr discarding the material (cnvenience, space requirements, etc.) there is much practical merit in destrying r discarding the same. PARTICIPATION AT TRIAL Generally, an expert is nt permitted t give ral evidence at trial unless his r her direct evidence is limited t an explanatin f any terms r sectins f the reprt which require clarificatin due t their technical r cmplicated nature r the expert s attendance has been demanded by the ther party. If the expert s attendance has been demanded by the ther side fr crss examinatin purpses, the Rules prvide that the demand must be made at least 21 days prir t the scheduled trial date. In practice legal cunsel will be in cnstant cmmunicatin with his r her expert witness t crdinate participatin at the trial and t minimize incnvenience t the expert s schedule. If a demand fr crss examinatin is nt made, the expert des nt have t attend trial t give ral evidence and his r her reprt (subject t admissibility) may be tendered and accepted as evidence. CONTACT BY OPPOSING COUNSEL It is ften said there is n prperty in a witness. This means that even thugh a witness may be called t give evidence n behalf f a particular party, it is perfectly prper fr the ther side t als cntact that witness and t ask questins abut his r her prpsed evidence. This is als true f expert witnesses, even thugh the expert has been retained t assist and is being paid by ne f the parties. Hwever, there is n bligatin n the part f the witness, including an expert witness, t cnverse with the legal cunsel representing the ther side. It is perfectly prper fr an expert witness t refuse t speak t that ther cunsel. Further, the Prfessinal Cnduct Handbk gverning the ethical bligatins f the legal prfessin has stipulated certain rules fr cntacting an ppnent s expert as fllws: befre initiating any such cntact, the lawyer must ntify the ppsing party s cunsel f his r her intentins; when cntacting the ppsing party s expert, the lawyer must at the utset: state clearly fr whm he r she is acting and make it clear he r she is nt acting fr the party wh has retained the expert; and raise with the expert whether the lawyer is accepting respnsibility fr payment f any fee charged by the expert arising ut f the cntact; and the lawyer must nt questin the ppsing party s expert n matters that are prperly prtected by the dctrine f legal prfessinal privilege (i.e. cmmunicatins between the expert and the lawyer wh retained him) Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T

9 p. 7 In practice, it is better fr the expert t simply refuse cmmunicatin with the ther side. If such cmmunicatin des ccur, hwever, the expert shuld keep ntes f the discussins and shuld immediately frward the details t the legal cunsel by whm he r she was retained. CONCLUSION It is hped these guidelines will prvide sme assistance t the expert witness regarding the drafting f expert reprts and his r her participatin as a witness in the lawsuit. These guidelines are nt rules nr are they necessarily exhaustive. In every case, hwever, the expert must have a cmplete understanding f his r her rle and any necessary clarificatin shuld be btained frm legal cunsel at the utset. Nigel Kent T / npk@cwilsn.cm Raman Jhal T / rxj@cwilsn.cm THE PREPARATION OF EXPERT REPORTS TO BE USED IN A CIVIL LAWSUIT: A Guideline fr the Expert Witness CWA Clark Wilsn LLP cwilsn.cm Nigel P. Kent and Raman Jhal, T