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What Makes a Great Expert Report Anyway?

Emily Buell

What Makes a Great Expert Report Anyway?

On February 7, 2022, the ABA Antitrust Law Section hosted an event titled “What Makes a Great Expert Report Anyway”, which brought together a panel of antitrust economists and attorneys to discuss best practices in crafting expert reports. The event featured a panel of speakers representing various perspectives on expert report writing, including Dr. Isabel Tecu from Charles River Associates, Dr. James Langenfeld from Berkeley Research Group, Mr. Robert McNary from the California Department of Justice, and Mr. David L. Johnson from Lathan & Watkins. The event was moderated by Dr. Jéssica Dutra from Secretariat. A summary of the key insights from the event is below.

Understanding the Purpose

When writing an expert report, it is crucial to consider its purpose, such as to preserve the expert’s opportunity to testify at trial. The report should serve as a comprehensive statement of the opinions the expert will express at trial and the basis for those opinions. Therefore, it's essential to keep in mind how the report will be utilized for the expert's testimony.

Understanding the Audience

The panelists discussed the importance of keeping the relevant audience in mind when writing expert reports. The report’s argument should be clear and easily comprehensible to the counsel on one’s side, allowing them to effectively integrate it into the case. It's equally important to be mindful of the opposing counsel, avoiding any statements that could be misconstrued or used against one’s argument.

Moreover, anticipating and addressing potential criticisms from opposing experts is essential. This involves not only presenting a strong argument but also being prepared to defend it against critiques. The ability to preemptively address these challenges can significantly strengthen the credibility of the expert report.

When writing an expert report, one must consider the judges, clerks, jurors, and other individuals that may not have a technical background but will nonetheless read the report. Thus, it is crucial to ensure that the report uses accessible language and includes sufficient background information to help the reader understand complex economic concepts. It is particularly important to avoid the use of economic jargon and technical language in the report’s summary of opinions, as individuals with a non-technical background are more likely to focus on this section.

Furthermore, the inclusion of basic summary statistics can help non-technical readers grasp the key findings of the economic analysis. By presenting information in a clear and concise manner, experts can enhance the persuasiveness of their arguments and increase the likelihood that their conclusions will be understood and accepted by a wider audience.

Staying Within One’s Expertise

It is important to keep the argument focused on the testifying expert’s area of expertise when crafting an expert report. Straying into areas beyond the expert’s expertise can undermine the credibility of the expert’s opinion and jeopardize their reliability in responding to questions from opposing experts. Therefore, experts should ensure that their opinions are based on sound economic principles and supported by reliable data and analysis.

Continual Learning and Adaptation

Experts often have to learn new things for each case, particularly about the relevant industry and the statistical tools and econometrics used for the case. This continual learning process is essential for ensuring that experts are able to provide accurate and reliable opinions based on the latest information and methodologies.

Balancing Persuasiveness with Independence

Maintaining a balance between being persuasive and remaining objective is essential when crafting an expert report. While experts should aim to present a compelling argument, they must also ensure that their opinions are based on sound economic principles and supported by reliable evidence.

To achieve this balance, experts should focus on presenting a comprehensive argument grounded in economics. This involves clearly explaining the methodology used, the data relied upon, and the reasoning behind the expert's conclusions. By providing a clear and thorough explanation of their opinions, experts can enhance the persuasiveness of their report while remaining independent and objective.

Effective Use of References

References play a valuable role in an expert report, serving as a tool to demonstrate the expert's familiarity with the case background, support their arguments with relevant evidence, and show that they are employing established methods and tools. It is important to use references judiciously and ensure that they add substance to the argument. References should not be included merely for the sake of adding them; rather, they should support and strengthen the expert's opinions.

Moreover, experts should be careful to ensure that referenced documents do not provide a potential reference for criticism for the opposing side. By carefully selecting and using references, experts can enhance the credibility of their report and increase its impact.

Organizational Structure and Headings

Headings and subheadings play a crucial role in organizing an expert report. They should not only provide a clear and logical structure but also tell the story of how the expert reached their conclusions. By organizing the report in this way, experts can make it easier for readers to navigate and understand the key points of the report.

Furthermore, headings and subheadings can be particularly useful during depositions, allowing the testifying expert to quickly reference and discuss key points of the report. By using headings and subheadings effectively, experts can enhance the readability and usefulness of their report, increasing its impact.

Interactions Between Counsel and Economists

Effective communication between counsel and economists is essential for the success of the expert report. Economists should be involved in the discovery process to ensure they have access to the necessary data and documents. This early involvement can help economists better understand the case background and tailor their analyses to address key issues.

Clear communication between counsel and economists can also help avoid conflicting opinions among testifying experts on the same side. By keeping lines of communication open and ensuring that all team members are on the same page, experts can present a unified front, enhancing the credibility of their testimony.

Adequate Time for Analysis

To ensure a comprehensive and accurate report, it's crucial to devote sufficient time to empirical analyses, sensitivity checks, and audits. Rushed or incomplete analyses can undermine the report's credibility and subject the expert to scrutiny from opposing experts. It's essential to allow the expert enough time to conduct thorough reviews of the analyses and become fully comfortable with the methodology and results before finalizing the report. This preparation will set the expert up for success during their deposition and testimony.