Question

What role do exhibits play in the expert report? How can the expert use them to make the report more persuasive to the judge and jury? Are there any risks in using exhibits?

Answer 1

Working with experts throughout any case can be a complex process, requiring knowledge of the expert’s field, how they will be used strategically in your case, and how to get the most value out of the experts you retain. As one of the earliest contributions that an expert can make to your case, the expert report can serve as a strong foundation for future success or, if not handled correctly, be the beginning of the end. It’s therefore one of the most important things to get right. Attorneys who are able to navigate the complexities of working with experts during report writing will have a better chance of winning. Below, we’ve outlined 6 of the most important things for attorneys to remember when it comes time for an expert to start writing.

1. Find Out If An Expert Witness Report Is Necessary

Some jurisdictions, like New York, do not require expert witness reports in a vast majority of civil cases. Other jurisdictions allow certain individuals to testify as an expert without submitting an expert report. Such as when a current employee with specialized knowledge, or a non-retained expert, wishes to testify.

However, it is wise to err on the side of caution and produce an expert witness report. Because failure to produce a report from an expert who was required to results in automatic exclusion of the expert’s testimony under FRCP 37(c)(1), unless the failure is found to be justified, or harmless, by the court.

2. Follow the Federal Rules

The following elements are mandatory in federal cases:

1. a complete statement of all opinions the witness will express and the basis and reasons for them;
2. the facts or data considered by the witness in forming them;
3. any exhibits used to summarize or support them;
4. the witness’s qualifications, including a list of all publications authored in the previous 10 years;
5. a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
6. a statement of the compensation paid for the study and testimony in the case.

Most state procedural rules are similar or identical to the federal rules. However, if one is writing a report in a state case, it is important to research the requirements for that state.

3. Ensure The Report Is Sufficient

The level of disclosure required varies from court to court. However, FRCP 26 calls for a “complete statement” of all opinions. A complete statement means that reports must contain not just boilerplate language. Rather they should include a full disclosure of facts and rationale behind any expert opinions. A report should touch on the substance of the expected testimony, and not just recite the documents that were researched. It should also disclose the data and information considered by the expert in forming the opinions expressed. As well as copies of all of the trial exhibits the expert intends to use.

Therefore, an expert should retain any material that he or she relied on in forming the report. Although not required, it may also be wise to produce these materials themselves. This is wise because if an expert decides to use these materials she relied on, and exhibit them at trial, she will have already disclosed of them.

4. Determine The Attorney’s Role In Drafting The Expert Report

Few jurisdictions actually forbid the practice of attorney-prepared reports. The FRCP requires that an expert prepare and sign the report. However, in practice, courts simply require that the expert substantial participate in the preparation of the report. However, it is more strategically wise to have the expert prepare the report completely on their own. This limits any potential inconsistencies between the report and the expert’s opinions. As well as limiting any chance the adversarial party will make accusations the expert is a “puppet” of the lawyer.

This isn’t to say that an attorney shouldn’t work closely with the expert to ensure the report is thorough. Instead, an attorney should determine the scope, discussed below, and requirements of the report and make sure the expert is properly meeting them. An attorney may also edit the report to neutralize any overly aggressive statements against the adverse party.

5. Determine The Scope Of The Expert Report

Determining the scope of the expert’s report involves both legal and strategic concerns that are better left to a lawyer than an expert. In determining the scope, an attorney should balance the desire to provide as little information to the opponent as possible. While still fulfilling the duty to disclose the witness’s opinions fully and avoid exclusion.

In regard to how much a report can be limited in its disclosure, an attorney should make this decision based on the court the testimony is to be heard in. For example, if a jurisdiction permits parties to depose adverse expert witnesses, the jurisdiction will probably be more liberal in allowing testimony at trial that goes beyond the words actually written on the report. Conversely, if a jurisdiction does not permit expert depositions, then it would be wise to keep the report and the actual testimony as tight as possible. It is important to keep in mind when producing a potentially underdeveloped report that some courts will find that supplying an opinion in a deposition that was omitted from a report does not actually render the omission “harmless” under FRCP 37(c)(1).

6. Determine The Fees For Producing An Expert Report

When a court is asked to determine the reasonableness of expert witness fees, they often look to different factors. These include the training required for the expert insight, the prevailing rates for other comparably respected available experts, and the fees charged by the expert in similar matters.

An attorney retaining an expert should consider the complexity of the expert’s review and report, the importance of the expert’s testimony at trial, and the overall potential value of the claim or defense.

Types of Exhibits

“Real” • A document, record, or other tangible object formally introduced as evidence in court or attached to and made part of a pleading, motion, or contract (Black’s Law) • Actual evidence from the crime scene, tortious event, or discovery process

“Demonstrative” • Physical evidence that one can see and inspect, such as a model or photograph and that, while of probative value and usually offered to clarify testimony, does not play a direct part in the incident in question (Black’s Law) • Usually created for the purpose of litigation

“Real” Examples • Business, medical, phone records • lease agreement, contract • murder weapon; firearms* • faulty equipment • injuries, voices, physical traits • scene views

“Demonstrative” Examples • models, charts, diagrams, • photos or videos • timelines • day-in-the-life damages videos • event reconstruction animations • Only limited by own creativity and ability to satisfy FRE

When Should I Use an Exhibit? Good Opportunities • Describing a scene or location • Clarifying complex or technical testimony • Guiding an inarticulate or confused witness • Breaking up long testimony

“Other” Exhibit Issues

• Alluding to an (inadmissible) exhibit or report • Missing exhibit presumption • Spoliation

Creating the Exhibit

• Outsourcing versus creating in-house • Basic, must-have supplies • Your computer, the internet, and Kinkos • PowerPoint or Prezi • Private companies

Admitting the Exhibit – Basic Steps 1. Mark for identification. Hand the exhibit to the court reporter or premark before you get to the courtroom 2. Hand to opposing counsel and judge, or identify it by the pre-marked number 3. Ask the Court for permission to approach, and hand the exhibit to the witness 4. Ask the witness to identify the exhibit 5. Ask witness questions to establish the foundation for its admission 6. Move for admission of the exhibit. If you have not done so, hand the exhibit to the judge. Opposing counsel may make objections. Once the document is admitted, you may then question the witness about the contents and substance of the exhibit. Until the exhibit is admitted, such questions are not permitted. 7. Move to publish or pass the exhibit to the jury.

Trial Exhibits 36 • Documents • Things • Prepared Demonstratives – Animation • Chalks (not an “exhibit” entered into evidence)

Why do you want a Report from an Expert?

Generally speaking when somebody is dissatisfied with a situation, for example a new central heating installation system is not working properly, they want an expert to tell them why and what they can do about it and possibly even whether they are likely to get compensation. A report of this nature is what is called an ‘Advisory Report’. It is not prepared with a view to using it in court or arbitration. Put another way it enables somebody to decide what they can do and helps them decide what action to take.

If it is decided that legal action should be taken either to ‘right the wrong’ or to seek compensation (damages), the chances are that an Expert Witness will be required to give evidence. Before this can happen the Expert will be required to produce an Expert Report.

What is an Expert Report?

The purpose of an Expert’s Report is to set out the Expert’s opinion on matters within his expertise that he has been instructed to report on.

The ultimate use of the Report is to inform the court on matters outside its expertise and on which it has to reach a decision in order to resolve the dispute before it.

In addition to the court’s use, the Report will also inform the instructing party and its lawyers on technical matters to enable them to determine the strength of their legal case. During the preparation for the Hearing it will be disclosed to the other side in the dispute thus helping them to assess the strength of their own legal case. Should the other side have their own Expert Witness, a copy of their Expert’s Report will be given to you at the same time as they receive your Expert’s Report.

General content of an Expert Report

The Report should be a concise statement of the facts and assumptions used by the Expert and his analysis followed by the Expert’s opinion. It will have to comply with legal requirements.

Facts and the Expert’s opinion should be clearly separated.

The reader should be able to understand and to follow the reasoning leading to the conclusions reached in the Report. Although the Report may deal with very technical matters these should be expressed in a way that can be understood by an intelligent lay person. It should not contain unexplained jargon or acronyms.

The Expert is required to include a summary of the instructions he has received in whatever form they have been given. To avoid misunderstandings it is safer to give written instructions or, where the instructions are given verbally, to confirm them in writing.

Rules applying to an Expert Report

Because the Expert’s Report will become the main evidence of the Expert (known as ‘Evidence in Chief’) to be given to the court, the Civil Procedure Rules (CPR) set out very clearly what must be included in an Expert’s Report.

Broadly speaking the CPR requirements for an Expert’s Report can be looked at as a way the court can be sure that the Expert has clearly laid out his qualifications and methodology as well as showing who has worked on the preparation of the Report. These and other matters are necessary to show clearly that the Expert has given his own Independent professional opinion. This must include matters which may harm the case of the party for whom the Report has been prepared.

Because expert testimony is often difficult to convey to a jury, demonstrative evidence is usually essential to make it understandable and effective. Rule 26(a)(2) prescribes the contents of the mandatory expert disclosures, but that provision does not plainly spell out its impact on demonstrative evidence - which makes its potentially preclusive effect all the more insidious.

The mandatory expert disclosure under Rule 26(a)(2)(B) initially takes the form of a report, which, among other things, "shall contain ... any exhibits to be used as a summary of or support for the [expert's] opinions." The accompanying Advisory Committee Note elaborates that the report is to include "any exhibits or charts that summarize or support the expert's opinions." Both the Rule and the Note clearly encompass demonstrative evidence.

Consequently, under Rule 26(a)(2)(B), expert demonstrative evidence is due at the time the expert report is filed.

This creates a practical problem. Most cases settle. Jury-quality demonstrative exhibits are expensive. Therefore, they are usually not prepared until well after expert reports are furnished. Further, at the time expert reports are exchanged, there have been no expert depositions (under Fed. R. Civ. P. 26(b)(4)(A), expert depositions may be taken only after all reports have been provided). Until that time - or, at a minimum, until all responsive expert reports have been served - not all of the issues have crystallized and not all potentially necessary exhibits can frequently be prepared.

Preclusion Risk

But the failure to append demonstrative evidence to expert reports is risky. Rule 37(c)(1) provides for the automatic exclusion of anything that should have been, but was not, disclosed under Rule 26(a). If expert demonstrative evidence has not timely been disclosed, Rule 37(c)(1) is designed to bar its introduction at trial. See, e.g., Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) (undisclosed charts prepared by expert to rebut opposing expert properly excluded); United Phosphorus v. Midland Fumigant, 173 F.R.D. 675, 677 (D.Kan. 1997) (undisclosed exhibits excluded).

The most sensible way to avoid this preclusion risk is by directly addressing the issue of demonstrative evidence - and not just expert demonstratives - in a scheduling or pretrial order. (Rule 26(a)(2) may, by its terms, be overridden by court order.) The parties should come to an agreement as to when they want to produce and exchange expert demonstrative exhibits and put it in the form of an agreed order for the court to sign.

In fashioning the agreed order, not all types of demonstrative evidence should be treated the same way. For example, the parties might choose to agree that demonstrative exhibits will generally be exchanged at a certain time - e.g., 10 days before trial, or 10 days before the trial testimony of the witness with whom they will be used - but separately carve out specific types of exhibits that require additional attention, such as computer-generated animations or videotaped demonstrative evidence, which must be produced earlier. (Animations should always be dealt with separately, since they raise a plethora of issues and usually necessitate discovery - topics to be covered in a future column.)

With regard to expert demonstratives only, the parties may also stipulate to relax the strictures of Rule 26(a)(2)(B). If, for example, the issue has been omitted from a governing scheduling order, the parties may simply agree that demonstrative evidence need not be appended to expert reports but deferred to the pretrial order.

Supplementation Exception

In the absence of a stipulation or court order, Rule 26(e)(1) offers a potential reprieve for demonstrative exhibits that have not been appended to the expert report. Rule 26(e)(1) - which requires that Rule 26(a) disclosures must be supplemented whenever "in some material respect the information disclosed is incomplete or incorrect" - expressly applies to expert reports. Hence, by its terms it applies to expert demonstratives since they form a mandatory component of the expert's report.

Supplementation under Rule 26(e)(1) is permitted up through and including the date on which the final pretrial order is signed or, in the absence of a pretrial order, until the final pretrial disclosures are due under Rule 26(a)(3) (i.e., 30 days before trial).

Consequently, expert-related demonstrative evidence might be disclosed to an adversary as late as the date the pretrial order is signed or, absent such an order, 30 days prior to trial. Note that furnishing demonstrative evidence to an opponent on this last permissible date effectively prevents visual rebuttal, absent relief from the court, because further disclosure or supplementation will by definition be untimely any later.

Non-Expert Demonstratives

The demonstrative evidence preclusion problem discussed above is not confined to the expert witness realm. Under the 1993 Civil Rules amendments, Rule 26(a)(3) (the general pretrial disclosure rule) is broadly drafted to encompass non-expert demonstrative exhibits. Rule 26(a)(3) provides that - in the absence of a judicially-directed final pretrial order - the parties must exchange every "exhibit, including summaries of other evidence," 30 days before trial. (The lone exception is for impeachment evidence.) Failure to honor this pretrial disclosure requirement also leads to Rule 37(c)(1) preclusion at trial.

The timetable prescribed in Rule 26(a)(3), like that provided in Rule 26(a)(2), may be trumped by a court order. Accordingly, the timing of exchanging all types of demonstrative evidence - not just expert demonstratives - should be addressed in the final pretrial order, to obviate the risk of automatic preclusion under Rule 37(c)(1).

If the timing of demonstrative evidence disclosure has not been addressed in a stipulation or court order, the proponent will want to avoid automatic preclusion under Rule 37(c)(1), and the opponent will want to avoid any unfair prejudice. These are two sides of the same coin under the two exceptions to automatic preclusion contained in Rule 37(c)(1).

Substantial Justification

The first exception to the automatic bar of Rule 37(c)(1) applies to information that has been disclosed out of time with "substantial justification." This provision authorizes the court to permit a demonstrative response or otherwise rectify any unfairness in admitting an exhibit that was not timely disclosed.

"'Substantial justification' requires 'justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request.'" Fitz, Inc. v. Ralph Wilson Plastics Co., 174 F.R.D. 587, 591 (D.N.J. 1997).

The courts consider primarily three factors in deciding whether a party is substantially justified in offering evidence - and not just demonstrative evidence - that was not timely disclosed:

1. Good Faith vs. Bad; Willfulness vs. Negligence. The good or bad faith, willfulness or negligence of both (a) the proponent in failing to make the disclosure earlier (e.g., lying in wait) and (b) the proponent in not addressing the issue earlier (any attempt to guard against last-minute disclosures?). See, e.g., Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y. Aug. 2, 1995) (no evidence of bad faith on part of the proponent); Edward Lowe Indus. v. Oil-Dri Corp. of Am., 1995 U.S.Dist. LEXIS 17127 at *5-*6 (N.D. Ill. Nov. 15, 1995) (inadvertent omission of certain foundational information from expert report; held, no preclusion where prompt supplementation precluded prejudice). Cf., Doe v. Johnson, 52 F.3d 1448, 1464 (7th Cir. 1995) (trial court within its discretion in excluding undisclosed opinions under Rule 37(c)(1), rejecting on the facts the argument that the opponent might be considered negligent for failing to uncover the opinions; "substantial justification" not specifically discussed).

2. Control. Whether conditions beyond the control of the proponent changed, and those conditions are the subject of the undisclosed evidence (e.g., unexpected testimony from a fact witness) or the basis for a change in the evidence (e.g., different expert testimony based on new facts).

3. Surprise. Whether the proponent reasonably believed that the matter in question was not disputed (Friends of Santa Fe Cty. v. Lac Minerals, 892 F. Supp. 1333 (D.N.M. 1995)); whether the undisclosed evidence became relevant only after other, unanticipated evidence was introduced; and the complexity of the lawsuit (e.g., In re TMI Litig. Cases Consolidated II, 922 F.Supp. 997, 1003-04 (M.D.Pa. 1996)).

Under these standards, if a party has waited until the final date on which supplementation may be made to present demonstrative exhibits, the court may find that the adversary is substantially justified in offering subsequently-prepared demonstratives addressing the same issue. It would be wise for the opponent to raise the issue - and disclose the intended responsive visuals to the adverse party - as soon as practicable, as a token of good faith. As a practical matter, there may be a need for expert assistance which operates to delay the preparation of the responsive demonstratives, but not a statement of intent to do so.

Note that this strategy is essentially defensive in nature - accepting the last-minute supplementation as a fait accompli and responding to it. Depending on the facts, there may an offensive alternative, too - namely, seeking to strike the last-minute supplementation as abusive. The ultimate issue for the trial judge is one of fairness in the circumstances.

Harmless Error

The second exception to the automatic bar of Rule 37(c)(1) is for harmless error (it applies where the "failure [to disclose] is harmless"). In reviewing for harmless error, trial judges often look again at the good faith of the parties (e.g., Newman v. GHS Osteopathic, 60 F.3d 153 (3d Cir. 1995)), but the principal question is prejudice to the opponent. E.g.:

• Whether the undisclosed evidence was otherwise made known to the opponent, even if not in strict compliance with the rules. Nguyen v. IBP, 162 F.R.D. 675 (D. Kan. 1995) (information not included in expert report was otherwise provided).
• Whether there is sufficient time prior to trial to permit the disclosure to be made belatedly. Apel v. Rockwell Int'l Digital Communications Div'n, 1994 U.S.Dist. LEXIS 8186 at *1-*2 (N.D. Ill. June 20, 1994).
• Whether the opponent has in fact been able to respond to the non-disclosed, or tardily disclosed, matter. Mid-America Tableware v. Mogi Trading Co., 1996 U.S. App. LEXIS 30583 at *26-*27 (7th Cir. Nov. 22, 1996).

Prophylactic Discovery

In order to minimize the risk of last-minute expert supplementation - and to maximize the argument that a technically untimely evidential response ought to be permitted - a party may use new discovery tools provided in the 1993 amendments.

The 1993 Advisory Committee Note to Rule 26(a) recites that "parties are not precluded from using traditional discovery methods to obtain further information regarding these matters" (i.e., matters that are subject to mandatory disclosure). Some courts have looked to this language, and to Rule 26(a)(5) (entitled "Methods to Discover Additional Matter"), in concluding that additional discovery beyond the mandatory expert report and optional deposition is contemplated and permitted. See, e.g., Corrigan v. Methodist Hosp., 158 F.R.D. 54 (E.D. Pa. 1994); All West Pet Supply Co. v. Hill's Pet Prods. Div'n, 152 F.R.D. 634, 639-40 (D.Kan. 1993).

Specifically, the right to additional expert discovery has been held to encompass drafts of expert "reports and notes relied upon and made in preparation of completing the final reports." Caruso v. Coleman Co., 1994 U.S.Dist. LEXIS 18587 (E.D. Pa. Dec. 27, 1994). Whether or not drafts of subsequently-proffered demonstrative exhibits are produced, a discovery effort may demonstrate vigilance auguring in favor of a subsequent judicial finding of substantial justification on the part of the discovering party, thereby permitting that party to offer responsive demonstratives.

Seeking expert discovery, however, is not without risk. A party who serves expert discovery demands can expect to receive them. There is, moreover, a lingering question as to the extent to which communications between counsel and experts are cloaked with any privilege or protection. (This subject will be discussed in the next column.) Therefore, expert discovery of this sort should not be undertaken without careful consideration of all its implications.

Discovery into non-expert demonstratives is theoretically, but not practically, possible most of the time. It is true that the Corrigan case (cited above) held that additional discovery into subject matter addressed by Rule 26(a)(3) - specifically, impeachment evidence, which need not be mandatorily disclosed - was discoverable under Rule 26(a)(5). But the object that Corrigan ordered produced was a surveillance videotape, and surveillance videotapes have traditionally been sui generis in the discovery treatment they receive. See generally Joseph, MODERN VISUAL EVIDENCE § 4.03[2][b] (Supp. 1998).

There are, moreover, a number of cases reflecting that parties are entitled to discovery of the information required to be disclosed by Rule 26(a) only in accordance with the schedule set by Rule 26(a), the Court or local rule. E.g., Basque Station v. United States, 1995 U.S.Dist.LEXIS 7085 at *6 n.3 (D.Ida. May 9, 1995) (plaintiff not entitled to defense expert information in response to interrogatory until such time as it is due under federal and local rule; nor is plaintiff entitled to defendant's witness list until it is due under Rule 26(a)(3)). Hence, absent voluntary compliance by the opponent, a discovery request for non-expert demonstratives will often be futile, except in a few sui generis areas, such as surveillance tapes, as in Corrigan.