Writing and Defending Your Expert Report Steven Babitsky, Esq. and James J. Mangraviti, Jr., Esq.
Your expert opinion is only as strong as your expert
report. Opposing counsel can and will use every tactic, fair and unfair, to turn
your own report against you. A
well-written report is your first and best line of defense from such attacks.
Equally important is your ability to recognize counsel’s tactics and
neutralize them. Writing and
Defending Your Expert Report: The Step-by-Step Guide with Models is the
seminal work on how to craft and confidently and expertly defend your expert
report. This required resource for all experts will teach you:
-
numerous techniques on how to write a powerful, persuasive and defensible
report
-
how much retaining counsel can assist you in writing your report
-
the superfluous information and dangerous language that should be left
out of your report
-
advanced techniques to defend against 40 of counsel’s most devastating
tactics used to attack you through your report
-
legal requirements regarding Rule 26 expert reports and reports used in
summary judgment motions, and
-
the techniques used by a dozen leading experts to write and defend an
expert report.
Experts who write reports need to read this book.
Here's What Your Colleagues Have to Say:
-
“Comprehensive,
meticulously detailed and eminently practical. Bristling with lists,
examples both model and horrible, caveats, pitfalls and key words. A classic
of its kind.
Most valuable are the hair-raising transcript excerpts.”
Thomas G Gutheil, MD Professor of Psychiatry, Harvard Medical School
-
“Clear,
concise, and comprehensive!
A must read.”
Daniel Pacheco, P.E.
-
“…the
rarest of legal works…fulfills a real need…organized in a user friendly
format set forth in clear and graceful English.”
William C. Lanham, Esq.
-
“Simply
phenomenal!! It would take an expert of many years to discover all these
pearls for her/himself…on second thought, you simply couldn’t come up
with all this valuable information without this book.”
Malin Dollinger, MD
-
“A
great resource for professionals!”
Martha Sorensen, Ph.D
-
“Learn
the hard way or just read this.”
Jerome H. Poliacoff, Ph.D
-
“An
essential resource for any expert,
novice and veteran.”
Vince Gallagher
-
“Read
It!!”
Ken MacKenzie, MCBA, FIBA, MBA
About The Authors:
Steven Babitsky
and
James J. Mangraviti,
Jr.
are the nation’s leading and most prolific authors and trainers on expert
witness issues. They are both
former trial lawyers whose past texts include:
How To Excel During Cross-Examination: Techniques for Experts that
Work, How To Excel During Depositions: Techniques for Experts that
Work, and The Comprehensive Forensic Services Manual: The Essential
Resources for all Experts. Attorneys
Babitsky and Mangraviti have trained thousands of experts on the skills needed
to be more effective and better assist the trier of fact.
CONTENTS
CHAPTER 1
INTRODUCTION
-
1.1 WHY COUNSEL
MAY WANT A WRITTEN REPORT
-
1.2 THE IMPORTANCE
OF A WELL-WRITTEN REPORT
-
1.3 THE GOLDEN
RULE OF EXPERT REPORT WRITING
-
1.4 LEGAL
REQUIREMENTS
-
1.5 WORKING WITH
COUNSEL
-
1.6 FORMATTING AND
PROOFING
-
1.7 DISCLOSURE OF
DOCUMENTS REVIEWED
-
1.8 QUALIFICATIONS
OF THE EXPERT
-
1.9 EXPRESSING
FACTUAL ASSUMPTIONS
-
1.10 THE
IMPORTANCE OF STAYING WITHIN THE EXPERT’S TRUE AREA OF EXPERTISE
-
1.11 STATING
OPINIONS
-
1.12 THE
IMPORTANCE OF RESEARCH
-
1.13 THE
WELL-WRITTEN EXPERT REPORT
-
1.14 WHAT NOT TO
INCLUDE IN AN EXPERT REPORT
-
1.15 DEFENDING THE
EXPERT REPORT
-
1.16 HELP FROM
COLLEAGUES
CHAPTER 2
DISCOVERABILITY OF EXPERT REPORTS AND RELATED MATERIAL
-
2.1
EXECUTIVE SUMMARY
-
2.2
ATTORNEY-CLIENT PRIVILEGE
-
2.3
WORK PRODUCT PROTECTION
-
2.4
NON TESTIFYING EXPERTS
-
2.5
TESTIFYING EXPERTS
-
2.6
ORAL AND DRAFT REPORTS
CHAPTER 3
LEGAL REQUIREMENTS: RULE 26 REPORTS, REPORTS USED IN SUMMARY MOTIONS, AND
MAGIC WORDS
-
3.1
EXECUTIVE SUMMARY
-
3.2
RULE 26
-
3.3
SUPPLEMENTAL RULE 26 REPORTS
-
3.4
REPORTS USED TO SUPPORT OR OPPOSE MOTIONS FOR SUMMARY JUDGMENT
-
3.5
TIMELINESS
-
3.6
REQUIREMENTS UNDER STATE LAW
CHAPTER 4
PREPARATION OF REPORTS AND THE ASSISTANCE OF COUNSEL
CHAPTER 5
FORMATTING
-
5.1
EXECUTIVE SUMMARY
-
5.2
COVER PAGE
-
5.3
FONT
-
5.4
TOPIC HEADINGS
-
5.5
SHORT, CONCISE PARAGRAPHS
-
5.6
SPACING
-
5.7
PAGE NUMBERING
-
5.8
INCLUDE AN EXECUTIVE SUMMARY
-
5.9
SUMMARY JUDGMENT REPORTS IN THE FORM OF AFFIDAVIT
CHAPTER 6
PROPERLY DISCLOSING PRECISE DOCUMENTS REVIEWED
-
6.1
EXECUTIVE SUMMARY
-
6.2
THOROUGHNESS
-
6.3
NUMBERING LISTS
-
6.4
“INCLUDING” AND “INCLUDING, BUT NOT LIMITED TO”
-
6.5
“RELEVANT PORTIONS OF”
-
6.6
“VARIOUS”
-
6.7
MISSING RECORDS AND DOCUMENTS NOT REVIEWED
-
6.8
ADDITIONAL EXAMPLES
CHAPTER 7
STATING THE EXPERT’S QUALIFICATIONS ACCURATELY AND OBJECTIVELY
CHAPTER 8
HOW TO BEST EXPRESS AND DOCUMENT DETAILED AND SPECIFIC FACTUAL
ASSUMPTIONS
-
8.1
EXECUTIVE SUMMARY
-
8.2
PROVIDE DETAILED AND SPECIFIC INFORMATION
-
8.3
CITATIONS TO INFORMATION SOURCE
-
8.4
DO NOT GUESS ABOUT THE FACTS
-
8.5
INCORRECT FACTUAL ASSUMPTIONS
-
8.6
DATES
-
8.7
RELIABILITY OF DATA AND INFORMATION
-
8.8
ILLEGIBLE RECORDS
-
8.9
INFORMATION SUPPLIED BY RETAINING COUNSEL
CHAPTER 9
THE IMPORTANCE OF STAYING WITHIN ONE’S TRUE AREA OF EXPERTISE
CHAPTER 10
STATING OPINIONS AND CONCLUSIONS IN A DEFENSIBLE MANNER
-
10.1
EXECUTIVE SUMMARY
-
10.2
STATE OPINIONS CLEARLY AND WITH CONFIDENCE
-
10.3
STATE REASONS FOR OPINIONS
-
10.4
NET OPINIONS
-
10.5
FAILURE TO DISCLOSE FACT/EXPERIMENT IN REPORT
-
10.6
STATE ALL OPINIONS TO WHICH EXPERT WILL TESTIFY
-
10.7
CONCLUSORY STATEMENTS
-
10.8
VAGUE, EQUIVOCAL, AND UNCERTAIN REPORTS INADMISSIBLE
-
10.9
DOCUMENTING A RELIABLE METHODOLOGY
CHAPTER 11
HOW TO USE CITATIONS TO TEXTS, GUIDELINES, CODES, ARTICLES, AND OTHER
AUTHORITY TO BOLSTER A REPORT’S CREDIBILITY
CHAPTER 12
MAKING YOUR REPORT POWERFUL, PERSUASIVE, AND UNDERSTANDABLE
-
12.1
EXECUTIVE SUMMARY
-
12.2
STATE THINGS CLEARLY AND DIRECTLY
-
12.3
DO NOT GUESS
-
12.4
GUESSING ABOUT COSTS, VALUE, AND MONEY
-
12.5
AVOID BOILERPLATE LANGUAGE
-
12.6
AVOID ABSOLUTE WORDS
-
12.7
AVOID VAGUE, EQUIVOCAL, AND UNCERTAIN REPORTS
-
12.8
DO NOT USE EMPHASIS WHEN EXPRESSING FINDINGS OR CONCLUSIONS
-
12.9
USE ACTIVE VOICE
-
12.9
USE PRECISE LANGUAGE
-
12.10
USE FIRST-PERSON SINGULAR
-
12.11
USE CONFIDENT LANGUAGE AND AVOID HEDGE WORDS
-
12.12
DEFINE TECHNICAL TERMS AND JARGON
-
12.13
USE OBJECTIVE LANGUAGE
-
12.14
EXPLAIN EXPLICITLY THE MEANING OF ABBREVIATIONS
-
12.15
AVOID ARGUMENTATIVE LANGUAGE
-
12.16
BEWARE OF COMMENTING ON THE CREDIBILITY OF WITNESSES
-
12.17
MAINTAIN CONSISTENCY IN AND AMONGST REPORTS
-
12.18
AVOID REPORTS THAT APPEAR BIASED OR PARTISAN
CHAPTER 13
DAMAGING SUPERFLUOUS LANGUAGE AND INFORMATION THAT SHOULD NOT BE INCLUDED
IN EXPERT REPORTS
-
13.1
EXECUTIVE SUMMARY
-
13.2
“FRIENDLY” LANGUAGE DIRECTED AT COUNSEL
-
13.3
SPEECHES
-
13.4
LETTERHEAD
-
13.5
COVER LETTERS
-
3.6
DISCUSSIONS WITH RETAINING COUNSEL
-
13.7
ADDITIONAL EXAMPLES OF SUPERFLUOUS LANGUAGE
CHAPTER 14
RED-FLAG WORDS TO AVOID
-
14.1
EXECUTIVE SUMMARY
-
14.2
AUTHORITATIVE
-
14.3
“LEGAL” OR “LEGALLY”
-
14.4
“DRAFT”
-
14.5
“WORK PRODUCT,” “CONFIDENTIAL,” OR “PRIVILEGED”
-
14.6
“PROBABLE” AND “POSSIBLE”
-
14.7
“SUBSTANTIALLY”
-
14.8
“OBVIOUS”
-
14.9
“APPEARS”
-
14.10
“PRESUMABLY”
-
14.11
“EVIDENTLY”
-
14.12
“SUPPOSEDLY”
-
14.13
“IS SAID”
-
14.14
“HE,” “SHE,” “IT,” “THEY,” AND OTHER PRONOUNS
-
14.15
ROYAL “WE”
-
14.16
“IT SEEMS,” “COULD,” “APPARENTLY,” “I BELIEVE,” AND OTHER
HEDGE WORDS
-
14.17
“CLEARLY” AND “OBVIOUSLY”
-
14.18
“COMPLETE,” “THOROUGH,” “METICULOUS,” “EXHAUSTIVE,” AND
OTHER SUCH WORDS
CHAPTER 15
PROOFREADING FOR MISTAKES
CHAPTER 16 DEFEATING COUNSEL’S TACTICS
-
16.1
EXECUTIVE SUMMARY
-
16.2
TACTICS
|
