Consider the Purpose
Aside from meeting the basic requirements of disclosure which consist of disclosing the expert’s opinions and bases for those opinions (as well as disclosing compensation and listing prior testimony), an expert report can provide tremendous value. A good report can help to coalesce disparate facts into one coherent narrative addressing key issues in a case. Thus, it can clarify what otherwise can be a complex set of issues, potentially leading to resolution of a dispute.
Know Your Audience
Understand who is likely to read the report. I often ask clients if a judge might read my expert report. Attorneys may attach reports to summary judgment motions, for example. If a judge might read my report, that might change the way I explain certain concepts compared with a situation where it is primarily an opposing expert and their team reading the document.
Use a Workable Writing Method
Admittedly, everyone works differently—but the following basic approach works for me:
- First, I create an outline, giving careful and deliberate thought to the scope of work and ordering of concepts in the draft, and also insert boilerplate language.
- Second, I engage in what I call “slotting,” which is to insert statements about facts into the draft roughly in the appropriate outline section.
- Third, I seek to order facts logically within each section and add “connective tissue” which consists of explanatory language throughout.
- Finally, I work on clarity: Is each section explaining the points well? How can I write this so the reader cannot misunderstand the point? Of course, my team helps me immensely along the way, especially in conducting quality control, which is essential.
Communicate Early and Often
I like to send a draft to counsel after the initial outline stage. My typical “outline” contains some prose and the beginnings of a draft, but the initial goal is to focus on the ordering of points and confirm that my report covers the scope appropriately. As the report deadline approaches, I send drafts frequently, sometimes every few days. Comments from counsel can greatly improve a report, especially in helping confirm that I don’t inadvertently address or appear to address a legal question.
Reports Are Integral to Expert Work
Drafting an expert report provides much-needed discipline in the process of developing analyses. Writing helps make sure the expert work is connected to the issues in the case appropriately. Writing tends to force the expert and the expert’s team to chronicle the steps used in an analysis and can help uncover implied assumptions as well as highlight what factual questions are most important for an expert’s opinions.
Reduce Risk of Exclusion
One should expect the opposing expert and legal team to search for vulnerabilities and ways to challenge admissibility. The drafting process itself can help uncover exclusion risks, allowing the expert to adapt how analyses are conducted and/or better explain any rationale for the method(s) utilized, mitigating such risks.
Finally, a well-documented expert report pays dividends later. Good reports make depositions much easier for an expert, as the report constitutes pre-prepared written answers to many deposition questions that might arise. Good reports also help preparation for trial. I find that figures from my expert reports often can transition relatively seamlessly into trial demonstratives.
