When it comes to admitting expert testimony in court, there is a lot of buzz about counsel’s involvement with the preparation of expert reports. To say that it is risky to draft your expert’s report is an understatement. Doing so opens the expert (and the attorney) up to claims that the attorney unduly influenced the expert’s opinion, or more simply, put words into the expert’s mouth. Additionally, when an attorney drafts an expert’s report, even when the expert is consulted about the substance of the report and signs off on the final version, there is a possibility that the expert will “waffle” when challenged by opposing counsel. What does this mean? The expert may back out of the opinion or fail to strongly defend the opinion because he or she is able to say that the attorney misrepresented or exaggerated the expert’s initial opinions.
How can attorneys ensure their work with an expert is on the up and up? After all, it’s completely acceptable for counsel to keep the subject matter relevant to the legal issues at hand, or be involved to simplify difficult concepts for presentation to the court. The first rule of thumb is to check your state rules before you engage with an expert; this will ensure compliance with statutes straight off the bat (and potentially save you a lot of time!). Here are a few helpful reminders for when legal professionals find themselves working on the preparation of expert reports:
- The expert must substantially participate in preparing the report.[1]
- Federal rules require an expert’s report to be “prepared and signed by the witness.”[2]
- Federal Courts have been known to exclude expert reports drafted by counsel.
- Depending on the state rules, an attorney may or may not be permitted to draft a summary or the entire expert report. In Colorado, parties are allowed to use a summary of the expert report drafted by counsel. This was deliberately added to “reduce expenses.”[3]
- It is impermissible for counsel to write the entirety of the report.[4]
- It is acceptable for counsel to “put pen to paper (or fingers to a keyboard)” so long as the expert expresses his or her opinions to counsel before the report is generated and remains involved in the editing of the report.”[5]
It should go without saying that counsel should not prepare a report and simply let the expert read the report and sign it. Undoubtedly, the truth will be revealed when there is a deposition of the expert. If the attorney drafts a report for the expert, it could cause problems, which will vary depending on the jurisdiction and the judge.
[1] See Crowley v. Chait, 322 F. Supp. 2d 530, 543 (D.N.J. 2004) (noting that counsel may not draft the entire report without prior “substantive input” from the expert); Isom v. Howmedica, Inc., 2002 WL 1052030 (N.D. Ill. 2002) (finding that although some of the language in the report may have been chosen by counsel, the expert was sufficiently involved in preparing and revising the report that it could be fairly considered as setting forth his opinions and not those of counsel).
[2] Federal Rule of Civil Procedure 26(a)(2)(b) (emphasis added).
[3] See Committee Comment to C.R.C.P. 26.
[4] Trigon Ins. Co. v. United States, 204 F.R.D. 277, 293 (E.D. Va. 2001) (“The court contrasted the facts in Manning with the circumstances in which counsel had ‘ghost written’ [sic] a report from whole cloth and asked the expert to sign it as if it were his own.”).
[5] See Advisory Committee Notes to 1993 amendments to Fed.R.Civ.P.26 (“Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports.”).