Writing The Forensic Expert Witness Consulting Report
One of the functions of an expert witness is to provide opinions to the retaining attorney that clearly and completely discuss the issues of the case. Those opinions can be written down in the form of a Report, a Declaration or an Affidavit. The purpose of this essay is not to differentiate among those documents but to emphasize the importance of a unifying feature, which is the need for completeness and accuracy. For the sake of simplicity, I will use the word report throughout this essay to signify any document provided by the forensic expert which is designed to provide and elucidate expert opinions.
Inaccurate information, or the omission of information that would have fully explained and supported an opinion, will lead to opinions regarding standard of care, causation or damages that cannot be substantiated. Those opinions will be challenged by opposing counsel and that side’s experts with the result that the credibility of the report and its author may be impugned.
With this in mind, the report must be thorough. All of the opinions that support the premise need to be itemized, and all of the data that support each opinion need to be incorporated into the text that explains those opinions. The attorney will use the information provided in a report to prepare the “disclosure of opinions” statement, and that statement can only be as complete and convincing as the report itself. While deposition may be part of the discovery process, opposing counsel is not interested in discovering new opinions at disposition; and the expert is likely to be held to and limited by the opinions that were documented in the report and the disclosure statement. Therefore, if there were opinions that should have been brought forth in those documents, but were not, or opinions that should have been more fully explained, but were not, it may be too late to introduce that information at the time of deposition.
In addition to enunciating and explaining each opinion, those opinions should be supported by evidence based medical literature. That literature should be referenced, and it should be dated as having been available to the parties named in the case prior to the date of the event that is the subject of the case. If your emergency medicine expert references current medical articles or material currently available on-line, that information could and should be challenged by opposing counsel if the event happened several years ago, at which time the referenced literature would not have been available.
I view a report as the single most important document that I have to produce in any case. It is the culmination of my forensic consulting investigation of the case based on my review of the medical records, my review of the medical literature, and my review of any depositions that were made available to me. A bullet-proof report will make a case, and a shabby report will sink it.