Know the rules for writing narrative reports to protect your practice and yourself

There are many reasons written reports are needed, such as in litigation or to assess settlement of a case. Your reports are considered your signature and may be used as evidence for summary judgment or in deliberations by a jury.

Always work with your attorney, but do not be influenced by your counsel as to your findings and opinions. Always ask if a report is being requested and how your report will be used. Make sure the conclusions in your report are solid and based on fact. Formatting your report is essential and should include a cover page, 12-point, 1.5 spaced type, topic headings for easy reading, numbered pages, and a summary at the beginning in the form of an affidavit signed by author.

Make sure your reports comply with all legal requirements under Federal Rule 26(a)(2)(B) (Figure 1). If you do not comply, you may not be able to testify or have your report admitted into the records.

Carefully proofread your report and reference all documents used. List them in chronological order or in some format that is logical and easy to follow. Each document should be described precisely.

Always express factual assumptions in detail, citing the source on which you based your opinion. Verify your facts before including them.

When expressing an opinion, stay within your scope of expertise. Not doing this may open your testimony to vigorous cross-examination. Use terms within your expertise. Keep reports simple and do not use legal language in your narrative.

Experts are like lay persons with one exception—the expert can state an opinion, which must be defensible. State your opinion so it can be clearly understood by a person who may not have your expertise. Do not use hedge words such as it seems and I think. They do not relay confidence.

When writing your report, state items clearly. Do not speculate or guess, especially on cost items. Do not use boilerplate report formats. Use the active voice and confident, not argumentative, language. Objectively support your findings and conclusions. Do not use superfluous language, as this is one of the most common mistakes and leads to cross-examination that can damage your credibility.

Do not use words that will raise red flags, as this will lead to an attack on your credibility, opinions and conclusion. Avoid the following: authoritative, which has legal significance and will lead to cross-examination about everything in the text; legal or legally, which are outside your expertise unless you are an attorney; draft, which alerts counsel to the existence of a draft report and grounds for cross-examination; work product, confidential, or privileged, any of which makes it look like the expert is trying to hide something; probable, possible, substantial, these words are ambiguous; appears, presumes, supposedly, is said, evidently, all of which imply uncertainty; he, she, it, they, which are uncertain and not proper nouns; we, which makes the expert look silly, pompous, and even dishonest; it seems, could, apparently, I believe, these are not confident words; complete, through, exhaustive: these self-serving words will hold the expert to the highest standards and are not persuasive in a report; obviously, clearly, seems as if the expert is presumptive , can give the appearance of overconfidence or arrogance, and appear that the expert is an advocate.

Experts should assume that everything they write would be discoverable in any type of litigation. The expert is not the attorney’s client and the attorney-client privilege does not protect what is said between the expert and the attorney who retains him.

Your work product privilege protects documents and other things in preparation for trial. Work privilege is discoverable only on a showing of need, which will depend on the type of material sought, fact or opinion. Information that an expert considers when forming an opinion are discoverable.

Documents reviewed by nontestifying experts receive more protection than those reviewed by testifying experts. Factual information provided by an attorney to a testifying expert is discoverable. Information and opinions provided by a testifying expert are not protected by the work product doctrine. Some courts are split in this as to the discoverability of opinion work product, sometimes called core work product. This includes impressions, conclusions, opinions, and legal theories. On the other hand, work product materials related to matters about what the expert will testify to are discoverable and include written or oral communications.

Oral and draft reports are usually discoverable. Do not hide or destroy draft reports to prevent discovery. This can bring up serious credibility consequences and may be used to impeach your testimony. If draft reports are prepared, they should only be discarded as usual business practices and not in an attempt to hide them from discovery. Try to avoid draft reports all together.

Reports need to be signed by the expert. When an expert witness report is not filed in a timely fashion, the report may be stricken, the case can be dismissed or the summary judgment may be granted against the attorney’s client.

The courts, based upon rules of civil procedure, usually set the deadline for when documents are to be filed. Each state has requirements for complying with applicable standards or requirements.

Also, attach your curriculum vitae (CV), which lists your qualifications—never overstate or understate them. Be accurate because each item in your CV can be challenged by opposing counsel to attack your credibility.

Include a brief executive summary with supporting documents, especially with lengthy reports. This section is more likely to be read by the person whom the report is directed to and can help communicate the expert’s opinion to the reader.

It is important to organize and properly list all the documents and other materials that you reviewed in your report. This ensures you account for all the materials you reviewed and allows for a quick review. Avoid such words as: including, including but limited to, relevant portions of. This may imply to counsel that some documents you reviewed were not listed and could open questioning as to the possibility of intentional omissions. The more thorough your reports are, the more credible your opinions and conclusions will be.

Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer and practices chiropractic in Orlando, Fla. He is a faculty member of Texas Chiropractic College and conducts a national expert witness certification course. He can be reached at (866) 225-5055, or via www.medtechusa.net.

The information in this article is intended for informational purposes only and does not constitute any legal advice whatsoever. Consult an attorney in your state for more specific information.