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February 24, 2011 (Lecture 13)

Expert Reports

Expert reports are a critical part of the forensic process. In many jurisdictions, they are required prior to testimony. And, regardless, they are the most effective way of communicating most findings in a durable, reviewable way. Expert reports are often reviewed, of course, by the party that retained your services, but also by any opposing counsel, opposing experts, the judge and the jury. In most jurisdictions, any written report you produce, whether preliminary, draft, or final, is discoverable by the other side.

As a result, it is best if any non-final report is final with respect to its scope. It is unwise to reach "preliminary" conclusions based on insufficient or hypothetical evidence or analysis, only to revise them later. Although this practice can be a helpful planning exercise for your team, this type of thinking is better expressed in conversation. "Changing your mind" in across reports can be used by the other side to question your credibility, even when it is not justified, and even if the questions you raised in a "preliminary" way were of value to your team's planning.

In other words, it is fine to expanded a report if the scope of the assignment and/or the available evidence had been expanded. It is also okay, and often better, to offer supplemental reports to accomodate expanded or new questions, rather than expanding on a prior report.

"Preliminary reports", can later made final with a simple memo stating that, "Preliminary report of date X shall serve as our final report." Similarly, even reports intended to serve as final often include language that reserves the right to update findings.

In my own practice, I generally do not distinguish between preliminary and final reports. I do not report findings, unless they are established to reasonable scientific certainty. All of my reports are titled using their date and reserve the right to update findings as the analysis continues.

It is best to get everything right, and to take all of the time needed to do this. But, you should not allow errors to persist. You should probably not plan to update your findings. But, should the need to update your findings arise -- do it. It is your ethical obligation to your clients. And, if you think updating a report is embarassing and causes questions about your credibility, you should consider how it'll feel if your mistake is "discovered" while you are on the stand, or in a report of an expert on the other side. I'd rather risk earning credibility through forthrightness than losing it through a combination of error and untrustworthy conduct.

Expert's role

When testifying as an expert, whether in court, through a deposition, in a written declaration, or in a written report, an expert is not free to comment on any aspect of the case. Ultimately, the judge decides matters of law. The judge or jury, depending on the situation, examines evidence and determines matters of fact. The role of the expert is limited to offering opinions and conclusions that require her/his special, court-recognized, expertise and are beyond the competency of the laity. o

Furthermore the expert can not offer theories as conclusions, even if she/he believes them to be true. Instead, an expert can only offer those conclusions that she/he can reach with a reasonable degree of (scientific/engineering/medical/technical) professional (not personal) certainty.

Theories may be useful in some cases, in so far as they establish reasonable doubt. But, in these cases, it is the possibility, not the occurance, that is being established to reasonable professional certainty.

Writing Style

The style of writing should not be designed to make the expert appear smart or technical. It should be designed to be easily read and understood by lay persons. When writing an expert report, the expert is playing teacher -- teaching her/his team, the other side, the judge, the jury, the hearing officer, etc. The goal should be to be the best teacher that one can be.

Police reports are, at least in fiction, famous for being "Just the facts". This style is not necessarily particularly effective when communicating complex situations and ideas. A report can be entirely factually correct, and even complete -- but ineffective. It needs to educate the reader to the extent necessary for them to understand the expert findings and their relationship to the underlying facts.

Everything in the report should be there for a reason. If not, get rid of it. It should not be a summary of things you did. Many aspects of your analysis might not have turned up anything important. This is the nature of finding needles in sandboxes. Document every needle -- not every grain of sand.

You are not compelled to include information exactly as you found it. Play teacher. Present it the best way you can. Extract the important parts and build tables. Summarize data in charts. Color things. Label things. Make it meaningful. You can include the raw, dry version in an appendix, to demonstrate the fidelity of your presentation to the interested and critical reader.

Technical jargon is to be avoided. Where this is not possible, technical terms should be gently -- but correctly -- defined. Analogies and "soft" definitions can be a liability. Analogies can be turned inside out by those who might intentionally try to redefine them using a different context or perspective. "Soft" defintions may be incorrect, and used to make an "expert" appear, well, non-expert. Often the trick is to remain focused on communicating unfamiliar concepts by associating the known with the unknown -- without leaving much room for misinterpretation, accidental, or otherwise. I like to define essentail terms in-line, when possible. But, many people put a glossary within the appendix. And, I'll do that, if needed.

Structure of the Report

Every individual expert, or expert firm, has developed their own favorite report structure. Here's a quick look at a structure I like to use. But, I adapt it from case to case. By job isn't to fit a form -- it is to be the best teacher I can be.

I usually don't include an "Executive Summary" in my reports. If the reader wants that, I feel like they can jump to the conclusions. I don't feel like I can summarize the understanding -- or I'd have written a shorter report. Plenty of experts disagree with me on this. And, there are surely occasions where the report is bogged down in detail and I can summarize the flow and process effectively, and usefully, in an "Executive Summary". When this section is included, it does come first.

Review of an Expert Report

In class we reviewed an expert report. This particular expert report is a matter of public record as the result of a legal process. And, before use in class, it had been both anonymized and denatured to obscure and distract from the details of those actually involved. None-the-less, all copies were collected after class.

What to say? I wanted you to see a real report. But, the point was the structure, not the details of the case. I don't know if that was the right balance. But, I think it was close.