Want a Better Expert Report? Be Collaborative!

By Noah Bolmer

Proactive, collaborative experts create better reports. Set the stage for this at the beginning by working with your attorneys to gain a holistic overview of the case in a respectful, but direct manner. Expert Dr. Larry Chiagouris reiterates this point:   

[I]f you focus only on [expertise] and do not recognize the importance of the discovery process, the testimony in the declarations, and depositions that have occurred; you are not getting the whole story. You have to make sure you look at the record that was produced during discovery. So that means you need to be a little aggressive with the attorneys that are engaging you. You need to be very aggressive at asking for all the declarations. I want to see the deposition transcripts. I want to see all the documents produced in discovery […] You need to make sure you educate [attorneys] on the kinds of things you need. You need to be aggressive about it, but you need to be polite. I want to see all of these types of documents that may have been produced, that are relevant to my opinion. You need to have conversations with the attorneys about that to make sure it is clear, because they do not necessarily always know. You may be working with the junior associate who may be smart and know the law well […] but they may not know what may be helpful to you in understanding all the threads and all the nuances associated with the case.  

Expert Daniel Spulber confirms how valuable it is to request more documents. He emphasizes: 

I think much of it falls on the expert, but there are also some ways counsel can be helpful. It is essential to get the complaint and additional material. You do not want to be making decisions based on a minimal amount of material. 

Understand Case Requirements Before Writing 

Additionally, ask your engaging attorneys how an expert report should be written for your case type and jurisdiction before starting. Expert Jean Acevedo recounts:   

I am lucky that the attorneys that I have had the pleasure of working with have more of a collaborative arrangement. One of the things that I did not know for a long time was depending on the type of case: civil lawsuit, criminal defense, and others; there are different requirements for the reports. You need to make sure that you are open unless you know the technical underpinnings for the case, what type of reports, when they might be due, etcetera. I am glad I was, because otherwise, I would have had the wrong formats for things. The requirements of some cases, depending on the type of case and the court where it is filed, are required to be in the report, and a basic format that you need to stick to. 

Renegotiate Tight Deadlines   

Time pressure can make it difficult for experts to prepare thorough and effective reports. Expert Kevin Quinley, suggests you consider pushing back on tight deadlines before accepting an engagement:  

[Experts should] renegotiate tight deadlines or decide whether or not you can meet a tight deadline. I quote the Nancy Reagan anti-drug slogan ‘Just Say No’ because you are faced […] many times with those eleventh-hour, hair-on-fire requests to review a couple of thousand pages (or more) of documents, analyze them, [and] come to some conclusions; draft, edit and proof your report; collaborate with counsel and produce first-rate work product […] so I want as long a runway as possible. So, if there is a tight deadline (and by tight much of it depends on the volume of material) […] I like at least 30 days if not more from the date I am engaged. That means that the contract is signed, retainer is received, and materials are received. That is when the starting gun goes off. Even then, that is aggressive. So, I think to allow yourself enough time so that you can do something other than microwave an opinion. We are experts. We are not short-order cooks. Would you like fries with that?  

Collaborate on an Outline 

Keeping discovery rules in mind, a continuing back-and-forth during the report writing process can limit surprises to counsel while giving the expert time to incorporate last-minute changes. Expert David Harkavy uses outlines as a collaborative starting point:  

I often create an outline for counsel as I begin to draft my expert report, as long as that is not discoverable, so counsel will know the flow of topics for my expert report. On a timely basis, I will share a draft of my export report so there are no surprises leading up to the expert report’s due date. There are always going to be last-minute changes to an expert report. The days leading up to the due date […] counsel will read the expert report for the first time and provide feedback. Oftentimes, there is sort of a sort of pushback between counsel and myself as to the language in my report. 

Communicate Verbally Before Writing 

Similarly, taking a proactive, collaborative stance allows room to change the scope of engagement and strategy of the case as latest information becomes available. Expert George Reis verbally reports any new findings to the engaging attorney before incorporating them into his reports. Attorneys are generally appreciative, as Reis explains:  

If things come up during my analysis that point to some other direction, I contact the attorney, I say, ‘Hey, I am finding this. They might be interesting avenues to pursue. Would you like me to pursue them?’ They say, ‘yes’ or ‘no’, whatever it happens to be. Then at the end, I give them a verbal report. In that verbal report, I say, ‘Here are my findings. These things might be beneficial to your case and these things might be harmful to your case.’ We discuss it and then from there, I write the report. I always write it fairly and I always include my findings in the particular case from the direction of who has hired me. In most cases, I find attorneys want to know the things that are going to be harmful to their case as early as possible. That way they can figure out how they want to strategize for that information. 

A proactive, collaborative expert makes report writing more efficient, effective, and thorough and allows attorneys to strengthen the case.   

If you are interested in being considered for expert witness gigs, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now!