Developing the Expert Report: Important Considerations

Expert witnesses generally are hired to analyze technical, economic, and financial information relevant to a case. It is expected that the expert’s analysis and testimony would provide enough guidance to the court or jury to allow them to arrive at equitable verdicts. There are various types of experts; for example, technical experts have specialized knowledge of technical aspects of a case, industry experts are knowledgeable about the industry in which the parties operate, and damages experts have expertise in calculating the financial and economic harm resulting from the alleged wrongdoing. In most cases, an expert is required to submit an expert report ahead of their testimony at trial—in fact, this is a requirement in federal court. An expert report is typically a disclosure of the expert’s opinions that the expert expects to present at trial. While typically not reviewed by the jury, the expert report will often be reviewed by judges.

This Practice Point covers certain key considerations to keep in mind when working with an expert to develop the expert report. While most, if not all, of these points are within the expert’s sphere of responsibility, it would behoove attorneys to be cognizant of these considerations when working with their expert.

Clear and Comprehensible Structure and Language

When developing the expert report, it is advisable to keep in mind that there could be different types of audiences for the report. While it is almost certain that the opposing expert(s) and attorneys will review the report, it is also likely that the report could be reviewed by the court, including the judge. The structure of the report should be easy to follow and the content easy to understand. If technical and other specific terms are used in the report, they should be properly defined. The report should clearly present the expert’s conclusions and methodically explain the basis for the opinions, keeping in mind the key points to which the expert envisions testifying at trial.

A well-structured report with easy-to-understand content that is well supported by documents and data could also be a benefit to the expert when in deposition. An expert with a well-organized and properly cited report will be better prepared to respond to any potentially difficult questions at their deposition regarding details of their analysis and opinions.

Reliable Information and Accurate Analysis

This is a basic yet fundamental consideration in developing an expert report. The report should be based on accurate and supportable facts and information. Calculations and analyses contained within the report and exhibits should be double-checked for accuracy. Enough time should be set aside for the expert and their teams, as well as the attorneys on the case, to audit the expert report and exhibits. To this end, it is important to provide your expert with the necessary data, documents, and other information as early in the process as possible so that the expert has sufficient time to analyze the information, perform the necessary analysis and calculations, form opinions, and present these opinions in a clear and accurate manner in the expert report and any supporting exhibits and appendices. It would also be beneficial to retain the expert well before the close of fact discovery so that they can assist with the discovery process. For example, the expert could identify the types of documents that would be important to help form their expert opinions, help prepare fact deposition questions, particularly relating to documents relevant to the expert’s analysis, help prepare interrogatory questions, and so forth.

Fully Review Cited Documents

Experts generally rely on case and/or industry specific information and data in forming their opinions. The expert report will likely contain citations to numerous types of documents, including documents produced by the parties, depositions, and publicly obtained information. Cited documents should be fully reviewed to ensure that (a) information presented in the report is not taken out of context from the source document and (b) information in other parts of the document does not undermine any points made in the expert report. If that does occur, it could make for an uncomfortable deposition and potentially weaken the expert’s opinions. Generally, it is not ideal to have the expert be in the position of trying to defend why it is appropriate to rely on certain parts of the document while arguing other parts are unreliable. While there could be instances where only parts of a document are reliable, attorneys and experts should fully understand the reasons why and be ready to explain these reasons convincingly in a deposition or trial.  

The Expert Is Not an Advocate

The expert is not an advocate for the client. The expert is there to provide an independent and neutral opinion based on the facts and evidence of the case. An expert who comes across as advocating for one side could quickly lose credibility with the court and jury.

Opinions Should Be Within the Scope of Expert’s Qualifications

The expert report should include opinions that are within the expert’s realm of expertise. For example, it is generally not advisable to have an accountant, who is retained to analyze financial damages, opine on the technical aspects of the case. As another example, a software engineer, retained to study software code, generally should not be performing statistical regression analyses without having sufficient experience in that area. A more common pitfall happens when an expert attempts to interpret the law and/or provides opinions on legal issues. Legal opinions and decisions should come from the attorney, not the expert. Expectations for the expert should be discussed early in the process to avoid any misunderstandings regarding the scope of work.

Consistency in Expert Opinions

Many times, a complex case could require different types of experts, e.g., damages expert, technical expert, industry expert, and so forth. This could require juggling by the attorneys in working with the different experts. Different teams of attorneys may even work with the various experts on the case. In these situations where there are several experts, the opinions between the different experts should be consistent. This could be especially relevant where different experts’ skillsets overlap, for example, an industry expert and a damages expert who has experience working in the same industry. Since attorneys will have full visibility into all the experts’ reports, care must be taken to ensure that the reports are consistent with each other.

In a similar vein, as far as it is feasible, attorneys should also research an expert’s prior publications, articles, and speeches to ensure that the expert is not proffering an opinion that could be undermined by any prior statements they have made.

Conclusion

The preceding considerations, while not exhaustive, are important macro-level points to keep in mind when working with an expert—whether damages, technical, or other type of expert. The expert report is a disclosure of an expert’s opinions that they expect to present at trial, and thus proper time and attention should be given to developing a robust report.