The Attorney Can’t Write the Expert Report

I never thought this was something we’d have to tell an expert witness: The attorney who retained you to provide your expert opinion can’t write your report for you.

Attorneys often want to have input on the the expert’s report. Whether it’s correcting typos, making clarifications, or suggesting additional items to discuss, it’s not unusual that the attorney would ask for modifications.

But the retaining attorney should never be in the position of demanding certain things be in the report or writing parts of the report. When that happens, the expert is losing objectivity and you have to ask yourself if the opinion belongs to the expert anymore.

I’ve been involved in cases in the past where the client or the attorney have demanded certain things be in the report, and I’ve said no. They wanted my opinion to be some certain thing, and I couldn’t give that opinion after reviewing all of the evidence. As much as you may want to hep your client, you still have to give an opinion that is based on the evidence and is supportable. You can’t just say what the client wants you to say.

Sadly, someone needed a court to tell them this. In Numatics Inc. v. Balluff Inc. and Barnum Company in the U.S. District Court for the Eastern District of Michigan, the testimony of defense expert Michael Justice was excluded because his report was written by the attorney who retained him. The court said:

An expert witness who is merely a party’s lawyer’s avatar contributes nothing useful to the decisional process.

It was a patent infringement case involving a system that controlled the opening and closing of hydraulic and pneumatic valves. The expert was retained to give opinions regarding the claim that the patent was invalid because it was obvious.

The expert’s opinion was thrown out because Rule 26 of the Federal Rules of Civil Procedure state that the report must be “prepared and signed by the witness.” If the attorney wrote the report, then it obviously wasn’t prepared by the expert. In this case, the attorney wrote the 64-page report, and Michael Justice spent a couple of hours reviewing it before signing it. He testified that he spent less than eight hours reviewing technical literature, and the patent!!! He spent two or three hours reviewing 2,600 pages of deposition transcripts. (Impossible!)

The court did say that the attorney can “coach the expert to be sure the report touches all the bases.” So that raises a question of how much guidance is still just “coaching” and when we cross the line.

The court noted the lack of time and effort on the report by the expert. And large parts of the report were basically copied from the attorney’s invalidity contentions, even using identical citations. The expert apparently spent half of his hours in the case at the attorney’s office.

The plaintiffs only asked that certain parts of the expert’s report be excluded. But the court excluded the entire report. And called the expert “nothing more than a highly qualified puppet.” Ouch.

Attorneys can’t ghostwrite reports for expert witnesses. I didn’t realize we had to tell everyone this.

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