Zeroing In: Keep your Expert Reports Clear and Focused
By Noah Bolmer
An expert report isn’t a treatise; it should be expressed in a clear manner and tailored to the facts and evidence provided. Here are a few tried and true strategies.
Know Your Goal
Keep your conclusion in mind when writing expert reports and underscore key evidence that supports your expert opinion. Expert Erik Bernstein notes:
I think it is important to know what you are driving at [. . .] With the report, for example, it is important to know the conclusion you support. You do not just start writing a report and go on and on until you stop at some arbitrary point. You have a specific goal in mind, and you are trying to convince someone that your opinion is correct and support that opinion with facts.
Professor David Rockstraw agrees, as he states, “[Y]ou provide your opinions upfront, and then you provide the support [. . .] but what goes into the report is very much guided by what the attorneys are attempting to prove or disprove in the case that you’re involved in.”
Start Broad, Then Focus In
Dr. W. Richard Laton zeros in on the conclusion by starting with a broad overview and focusing in, bit-by-bit. He explains, “I am a big believer that you have to look at the bigger picture before you can dive into the little details. It may not all go into the report, but you have to look at it from a 20,000-foot elevation, get down to 5,000 feet and then get down to a foot.”
Making the Cut
Eliminate the extraneous. Anything within the report that doesn’t need to be there represents an opportunity for the opposing side. Dr. Michael Einhorn recommends considering potential responses while writing expert reports:
I try to be focused at all times. I do not like to leave things vague or open, because anything I say can be used against me in a deposition or court. That having been said, a plaintiff expert must establish reliable proof of damages in the first place, and a sufficient casual connection from the purported infringement to the sought remedy [. . .] With attorney advice, I will consider strategically what the other side may do in response.
Accepting Advice
Consider using tools provided by the attorney to stay focused. Professor Joseph LaViola is able to devote more time to the substantive parts of his expert reports when given outlines:
It depends on the attorney and the firm, but I usually get a skeleton as a basic outline, where I can fill in the main details. I have had ones where the skeleton is bare bones and others where the skeleton has been more fleshed out. It is a more thorough outline, and it makes it easier to focus on the stuff that I am an expert on when it is done that way.
A clear and focused expert report highlights your expert opinion without opening doors for opposing counsel. Your well-tailored report is a powerful tool for your attorney, and a successful engagement for you.
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