Yes No Share to Facebook
Expert Witness Report: A Well Documented and Supported Opinion from a Subject Matter Expert
Question: What are the key requirements for preparing an expert witness report in court litigation?
Answer: A well-prepared expert witness report must meet admissibility criteria, including relevance and the qualifications of the expert, while clearly communicating opinions backed by supporting evidence. By ensuring clarity and adherence to best practices, you enhance the effectiveness of your report, potentially influencing the outcome of your case.
Understanding the Requirements When Preparing an Expert Witness Report Document for Court Litigation Purposes
Quality expert reports can make or break a civil litigation case; and accordingly, errors or omissions within an expert report, or in the manner of selecting an expert or in the manner of introducing an expert may preclude the expert report from evidence and preclude the opinion of the expert from testimony, thus placing the legal case in jeopardy.
The Law
Admissibility
For a court to admit an expert report as evidence the expert report must meet the criteria of admissibility. The criteria was summarized within the case of 2599475 Ontario Inc. v 2549445 Ontario Inc., 2023 ONSC 3508, where it was said:
[35] The test for the admissibility of expert evidence is based on the criteria set out in R. v. Mohan, 1994 CanLII 80 (SCC), 1994 SCC 80, as follows:
a) Relevance;
b) Necessity in assisting the trier of fact;
c) The absence of any exclusionary rule, apart from the opinion rule itself; and
d) A properly qualified expert.
[36] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court divided the admissibility requirement into two distinct steps. First, a trial judge considers the four Mohan criteria. Then the judge balances the potential risks and benefits of admitting the expert evidence.
Quality Expert Reports
Communicate Clearly and Effectively
Before starting to craft an expert report, the expert is wise to carefully review the purpose and needs which the report is to serve by discussing such with the lawyer or paralegal who are seeking the report. Depending on the nature of the court case, the report may require broad details or may require a narrow focus. In some circumstances, a brief report is adequate; and in other circumstances a more lengthy report is necessary. Failing to conduct this review may result in the expert wasting the effort of preparing an excessively detailed report or useless preparing an insufficient report; and whereas both possibilities may result in a waste of time, such is also a waste of money.
It is also necessary that the supporting evidence documents reviewed by the expert are adequately included and properly referenced. The evidence documents can, and should, include pictures, study data, testing results, among other details, all provided as attached appendices or schedules. Additionally, a bibliography to summarize any authoritative documents used for research should be included.
An expert report should express opinions clearly and concisely while being easy to read in an organized and professional layout with spelling, grammar, and punctuation, carefully reviewed for correctness. The expert report should be written with a vernacular and tone that is consistent with the language of the intended audience whereas, for example, differences may be required for legal cases heard by a judge versus legal cases heard by a jury; and accordingly, language should remain within the understanding of the average layperson while avoiding belittlement of judges, lawyers, and other experts. Reports should be careful to limit the use of industry specific jargon or abbreviations known only to those with expertise within the relevant field; and, where industry jargon or abbreviations are necessary, a reference table or key to provide definitions should be provided within the report.
More Hints
- Use professional letterhead;
- Use a cover page as well as an index or table of contents;
- Use a curriculum vitae or resume to summarize the qualifications and credentials that confirm that the expert is genuinely an expert;
- Use an introduction page to outline when, and from whom, the report was requested;
- Use 12-point font and double spacing;
- Use headings;
- Use short, concise paragraphs;
- Use a unique reference number for each page, table, chart, and appendix;
- Use a definitions page or section to define technical language and industry specific jargon or abbreviations; and
- Use an upfront summary page to outline final conclusions or opinions.
Things to Avoid
An expert report must be impartial and objective. The role of an expert is to provide an unbiased opinion to the court for the purpose of aiding in the truth-seeking mission of the court. The expert must therefore ensure that the expressed opinion is grounded in facts and evidence rather than prepared with a favouring of a litigant.
- Avoid absolute wording and phrasing;
- Avoid words that appear as hedging or guessing;
- Avoid critical commentary regarding credibility of other experts;
- Avoid a scientific and clinical tone by keeping the tone friendly and personable;
- Avoid going into details beyond the purpose of the report;
- Avoid unnecessary adjectives or superlatives.
Summary Comment
The expert preparing an opinion report must remain attentive to the balance required when obtaining input from a legal representative whereas the lawyer or paralegal seeking the report will best understand the factual concerns and legal issues that relate to why the report is needed and can explain the desired scope; however, the findings and opinions as stated within the report must always remain the genuine unslanted view of the expert as author of the report.
