Tips on Writing an Expert Witness Report Joel P. Wiesen, Ph.D. - - PowerPoint PPT Presentation

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Tips on Writing an Expert Witness Report Joel P. Wiesen, Ph.D. jwiesen@appliedpersonnelresearch.com 31th Annual IPMAAC Conference St. Louis, MO June 13, 2007 Wiesen (2007), IPMAAC Conference 1 Report Writing Tips Meant for new experts

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Wiesen (2007), IPMAAC Conference 1

Tips on Writing an Expert Witness Report

Joel P. Wiesen, Ph.D. jwiesen@appliedpersonnelresearch.com 31th Annual IPMAAC Conference

  • St. Louis, MO

June 13, 2007

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Wiesen (2007), IPMAAC Conference 2

Report Writing Tips

  • Meant for new experts
  • These tips are not exhaustive
  • Feedback and other tips welcome
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Wiesen (2007), IPMAAC Conference 3

Number One Tip

  • Be Honest

– Opposing expert will help keep you honest – Opposing attorney may try to get a copy of everything you have ever written

  • Be prepared to be grilled on your previous testimony

and/or publications

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Wiesen (2007), IPMAAC Conference 4

Number Two Tip

  • Remember, we are not lawyers

– We do not understand most aspects of legal proceedings

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Wiesen (2007), IPMAAC Conference 5

Types of Reports

  • Affidavit
  • Plaintiff’s expert report
  • Defendant’s expert report
  • Supplemental report
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Wiesen (2007), IPMAAC Conference 6

Affidavits

  • Usually narrow in focus
  • May be asked to write more than one
  • May be used in connection with a motion

– e.g., motion for summary judgment

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Wiesen (2007), IPMAAC Conference 7

Plaintiff’s Expert Report

  • Usually wide ranging
  • Define issues

– Set forth all the shortcomings

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Wiesen (2007), IPMAAC Conference 8

Defendant’s Expert Report

  • Usually focused on rebutting plaintiff’s

expert

– Address all issues raised by opposing expert

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Wiesen (2007), IPMAAC Conference 9

Federal Rules

  • Federal rules mandate certain content

– List of your prior court testimony – Your experience/qualifications – Your compensation – Basis for your opinions

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Wiesen (2007), IPMAAC Conference 10

“Daubert” Rule

  • Admissibility of expert evidence

– Governed by Federal Rule of Evidence 702

  • Expert testimony must

– Be "relevant to the task at hand" – Rest "on a reliable foundation"

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Wiesen (2007), IPMAAC Conference 11

Some Benefits of a Report

  • Reasons for using a report can vary by case

– Help to get a more favorable settlement – Support a motion for summary judgment – Usually required in civil cases in federal court

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These Tips

  • Lessons learned from the trenches
  • Not exhaustive
  • Not in priority order
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Legal and Scientific Issues

  • Legal issues and scientific issues may be

different

– e.g., Adverse impact of exam versus adverse impact of selections

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Wiesen (2007), IPMAAC Conference 14

What Issues to Address?

  • Clarify with attorney topics/issues for you

to address

– What are the legally important issues you need to address? – Understand the legally important issues you need to address – What exact issues does your attorney want you to address?

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Wiesen (2007), IPMAAC Conference 15

Talk to Your Attorney First

  • BEFORE you put anything in writing

– E-mail and drafts may be discoverable – Discrepancies in drafts may be focused on

  • Different attorneys have different

preferences/styles

– Format – Length

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Wiesen (2007), IPMAAC Conference 16

Discuss Scope/Length With Attorney

  • Discuss scope of report with your attorney

– Length desired (3 to 15 pages may be better than 15 to 100 pages) – Topics to cover – Level of detail desired

  • Some attorneys want more or less

exhaustive reports

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Ask Your Attorney

  • What are the issues you should try to

address in your report?

– Then opine on specific topics/questions raised by your attorney

  • What topics is your attorney not interested

in?

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Wiesen (2007), IPMAAC Conference 18

Listen to Your Attorney

  • These tips are general
  • Your attorney must be trusted
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Expert Report is Not a Scientific Paper

  • Write for an intelligent lay audience

– Minimize jargon – Use jargon correctly – Define jargon and terms – Define all abbreviations

  • Be succinct
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Write for an Intelligent Audience

  • Cite page numbers in the material

referenced, so reader can check what you say.

  • Explain all complicated concepts
  • Also explain seemingly simple concepts
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Format of Report

  • Get format from lawyer. It may include

– Cover page – Table of contents – Signature page – Page numbering

  • What word processor does attorney use?

– Many (most?) filings are electronic nowadays

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Drafts

  • Some attorneys want only one draft

– If there are revisions, edit the same file. – Do not use successive revisions – No discoverable trail

  • Other attorneys unconcerned about drafts

– I have never been asked about earlier drafts

  • Label report “Draft” until it is finalized
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Wiesen (2007), IPMAAC Conference 23

Review By Attorney

  • Attorney should NOT write your report

– Your opinions are YOUR opinions

  • Ask attorney if he/she wants to review your

findings by telephone

– Before or after you have begun writing

  • Ask attorney to review report for clarity,

completeness

– Some do not do any review of reports

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Exhibits

  • Report should include all charts, graphs,

quotes, that you may want to use as exhibits in court

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Non-Opinion Content of Report

  • Attorney will ask you for required content:

– A list of all recent publications – A list of recent expert witness involvement – Etc.

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Other Things to Include

  • List of all documents reviewed

– Prepare this as you work

  • May have 50+ documents

– Identify each document clearly

  • Title
  • Date
  • Length
  • Bates stamp numbering
  • Exhibit letter
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Be Objective

  • Do not become an advocate for your “side”

– Impugns your credibility

  • Expert should be objective

– You represent the profession

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Statement of Your Opinion

  • State your conclusions clearly

– Do not puff but do not be wishy-washy

  • Avoid, “I believe” or “it seems”
  • Rather, “The facts just described indicate…”
  • Avoid superlatives like very, extremely,

unless they are clearly warranted

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What If I Am Not Sure?

  • If you are not confident, tell your attorney

– May lead to settlement

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Write Clearly

  • Short clear sentences
  • Active voice
  • Perhaps state your conclusions at the onset

and again at the end

– This differs from scientific writing

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Wiesen (2007), IPMAAC Conference 31

Present Numbers Clearly

  • Use simple graphs and charts
  • Interpret meaning of numbers

– p values – Statistical test results – Correlations – Reliability

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Educate Your Audience

  • Explain statistical concepts
  • Explain testing concepts
  • Judges are bright
  • Explain concepts needed to understand your

report

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Avoid All Errors

  • NO TYPOS

– Typos impugn quality of report

  • Be careful with statements about the

professional literature

– Expect your statements to be challenged – Be prepared to defend them

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Hope For

  • A competent expert on the other side

– Criticisms more likely to be reasonable

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Some Practicalities

  • Do not leave report writing to the last

moment

  • Have a system to keep track of documents
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Be Professional

  • Be respectful of opposing expert

– Point out errors politely

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Deadlines

  • Tell your attorney early if you foresee any

delays

  • Do not leave report writing to the last

minute

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Examples of Shortcomings

  • Focus on topics not important to lawyers

– Many pages on issues not in dispute – Many pages on an unimportant legal issue – Ignore legally important issues

  • e.g., job relatedness
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Wiesen (2007), IPMAAC Conference 39

Sample of a Good Report

  • Jeanneret, 1/8/05

– Title page – Table of contents – Starts with clear summary of opinions – Basis for opinions clear – Methodology clear – Tables/charts understandable – Citations to professional literature – Room for improvement (explain acronyms)

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Q & A’s

  • Questions/comments from the attendees
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Wiesen (2007), IPMAAC Conference 41

Closing

  • Meant for new experts
  • These tips are not exhaustive
  • Feedback and other tips welcome
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Wiesen (2007), IPMAAC Conference 42

Best of luck as you start your expert witness careers!

Copies of this presentation are available at: http://ipmaac.org

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Wiesen (2007), IPMAAC Conference 43

References

  • Babitsky, S. & Mangraviti, Jr., J.J. (2002)

Writing and Defending Your Expert Report; The Step-by-Step Guide with Models. Falmouth MA, SEAK, Inc.

  • Daubert on the Web. (2006) Downloaded

2/28/2007 from http://www.daubertontheweb.com/Daubert_ 2006.zip

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Case Cited

  • Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 597 (1993).