Top Ten Tips in Drafting an Expert Report
What makes one expert report better than that of an opposing expert? How can I make my expert report withstand the scrutiny of the court? What is the optimal structure for an expert witness’ report?
These are all very valid questions, and questions likely to be asked by any expert in preparing an expert report.
An expert report is very different from any other report a professional will write. It is not a peer-reviewed article, or an internal or external technical report. It is aimed at a very different audience (some might say an unusual or awkward audience) – lawyers. The report will be pored over by judges, barristers, solicitors and other experts, both in court, and in preparation for court as they try and discredit, analyse and forensically dissect and critique the report.
It also serves a very different purpose – it is not to express a finding or set of results. It is to educate the Court on a very specific and niche topic, which the court very likely knows very little about. It is to provide the expert’s opinion evidence on that topic, and to go no further.
Furthermore, reports will differ depending on the jurisdiction of the proceedings for which the report is made. For example, an expert report in a commercial matter the New South Wales High Court will be very different from one in a family law matter in the Family Federal Court in Victoria. Additionally, the various states and territories throughout Australia all have different rules which experts are bound by, as do the various arbitration tribunals.
Unsurprisingly, then it is very difficult to write a report as an expert witness. It is a skill developed through many years of practise and specialised training, and in some cases, trial and error.
However, there are several key tips all expert witnesses can use when preparing their reports to make them as robust and useful to a Court as possible. If you follow these suggestions you will be best placed to provide a comprehensive, well-reasoned report which will be invaluable to the court’s understanding of the relevant issues, and which will in turn stand you in a much better position for any cross examination on the report.
1. State your assumptions
All expert reports rely on various assumptions. Typically these are provided as part of your letter of instructions from instructing solicitors. Explicitly note these assumptions in your report.
2. Remember everything you write down is potentially discoverable
It is possible that everything you write down in respect of your expert report may have to be disclosed to the other side. Everything! It is not necessarily protected by privilege. This includes handwritten notes, drafts and emails. Thus be very careful before you write anything down.
3. Structure your report logically
Lawyers love structure. It makes a document easier to read, and easier to refer to specific parts therein. Use short paragraphs, headings, numbered paragraphs, annexures and page numbers.
4. Attach a relevant CV
This one is pretty obvious, but it is worth mentioning. You need to include a CV as this will establish your credibility and utility as an expert. However, make sure that CV is specific to the instruction at hand. Note relevant prior work history, and remove irrelevant information. Be sure to note prior engagements as an expert witness.
5. Explain your conclusions
Reasoning is the key to any expert report. A report by the most qualified expert is virtually useless to a court if it doesn’t explain the expert’s reasoning. Indeed, it is often the reasoning of a report which is more valuable to a court than the conclusions themselves.
6. Note the relevant rules etc
Each court and jurisdiction will have its own requirements, rules and/or code of conduct with which experts must comply. Be sure to reference this in your report so that the report in turn complies with the relevant rules. Typically your instructing solicitors will note these in their letter of instruction.
7. Don’t use jargon
Technical jargon should be avoided where possible. If unavoidable (such as when dealing with highlight technical matters) be sure to use as infrequently as possible, and to clearly define and explain the specific terms. Include a definitions section if necessary.
8. Only seek instructions from your instructing solicitors
Only your instructing solicitors can provide the expert witness instruction. There are significant legal and ethical problems with “informal” instruction arrangements and these will seriously affect your credibility as an expert. In fact, as a general rule, an expert should not approach the instructing party unless necessary for the report. Further, when this is required, the contact should be made through solicitors.
9. Keep the report short and concise
Courts will not be impressed by long rambling documents. They will not enhance your credibility – they will weaken it, and will likely open you up to more areas on which the report can be critiqued and on which you can be cross examined. Keep the report as short and concise as possible.
10. Consider the reasonableness of your instructions and assumptions
As an expert you are independent. You are required to exercise a degree of critical assessment of your instructions and assumptions. You must think about these, and the effect on your conclusions if they are found to be incorrect or false. A failure to do so may affect your credibility as an independent expert. Discuss any issues or concerns with your instructing solicitors, and be prepared to answer further questions on these as part of any joint report or cross examination.
There is no perfect expert report, and there is no “one size fits all” form of expert report. However, with sufficient work, skill and analysis an expert can prepare a report which can better withstand the rigours of opposing experts, joint reports, conclaves and cross examination. Follow these simple steps and you will be in a much better position when drafting the report.
Combine this with courtroom experience, expert witness training, and knowledge and understanding, and you as an expert will be of great utility and benefit to the court and instructing solicitors in all future expert engagements.
To learn more about our expert witness training for report writing and cross examination click here.
To see our sample expert witness report, click here.
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