“An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 1)  And, I might add, turn rebutting the report prior to discovery into a cakewalk.

Today, with the greatly increased emphasis on the expert’s report – see blog posted May 1, technical evidence is presented and responded to quickly and clearly by all parties unencumbered by the discovery process.

Today, you must retain an expert who has two basic skills, in addition to the motherhood requirements of appropriate education and experience:

• Skilled investigating the cause of the engineering failure or accident
• Skilled in presenting investigative findings in a well-written report

The chances that your expert will be cross-examined is getting close to almost negligible, and, if they are, it will be easier – if they have a well-written report.

“Guidelines” on writing reports have been around a long time.  There’s always a chapter on writing reports in the books on forensic engineering, science, and expert witnessing.  I’ve read a few of these books and, generally, I’m not impressed with the report writing sections.  Not even those published by our learned associations. (Ref. 2, 3)

They differ in how they guide, for one thing.  Many would not meet the requirements of civil procedure rules in eastern Canada, like Rule 55 in Nova Scotia.

And, almost without exception, there is no comment on the sorting, synthesizing, and analysing of the data from a forensic investigation, the drawing of well-supported conclusions, and the formation of an opinion.  Unquestionably, as important a task as collecting the data.  There are some but they are few. (Ref. 4, 5)

Your expert must be able to present the findings of their forensic investigation in a well-written report.  That’s not always being done.  Yet, it’s critical today.  There’s help.

Three experienced trial lawyers in the U.S. – James Mangraviti, and his co-authors, Steve Babitsky and Nadine Donovan, have addressed this problem in great depth.  Their quite massive 560 page, 11.25″ x 9.0″ x 1.25″ text goes into considerable detail on all aspects of expert report writing. (Ref. 1)

How to Write an Expert Witness Report was published this winter, 2014.  It includes many well developed check lists, typical well-written reports for common forensic investigations, and executive summaries.  One long summary for the entire book and one at the start of each of the 14 chapters.  I find the check lists and executive summaries particularly valuable.  Also the 20 pages of “Advice from the Trenches” – comments on drafting expert reports by different experts throughout the U.S.

You can see the book’s contents at www.seak.com  It is similar to another they published in 2002, Writing and Defending Your Expert Report, but much more comprehensive. (Ref. 6)

The recent text is based on the authors’ experiences as trial lawyers, review of discovery and trial transcripts, the response to their earlier book, and suggestions from specialists in many fields.

I’ve used their older text for years and the check lists and summaries there and now use the new one.  I actually recommended some time ago to readers of my blog to give a copy of the older text to their experts.  I now recommend giving the updated book.

Mangraviti et al’s text takes the guidelines on how to write an expert report – and a rebuttal report, for that matter, to a whole new level.  There is no excuse for anything less than a well-written report going to counsel and the justice system on the cause of a failure or accident.  In view of the increased emphasis on the expert’s report, it’s imperative that guidelines like these be followed if the truth of a matter is to come out.

References

1. Mangraviti, James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc., Falmouth, MA 2014
2. Lewis, Gary L. ed, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003
3. ASCE, Guidelines for Failure Investigation, 1989
4. Toulmin, Stephen E., The Uses of Argument, Cambridge University Press, 2003
5. Noon, Randall, Introduction to Forensic Engineering, CRC Press, Inc., Boca Raton, Florida, 1992
6. Babitsky, Steven, and Mangraviti, James J., Writing and Defending Your Expert Report, SEAK, Inc., Falmouth, MA 2002