“PLEASE HAVE RE-TYPED ON YOUR OWN STATIONERY. THANK YOU.” Or, A Word on Authorship & Expert Reports

The blog, Compelling Discovery, written by Michael P. Lowry, Esq. has spent much of October covering Expert Witnesses. Although the target audience is lawyers, many of these posts have direct relevance to experts – especially beginners. The most recent post concerns whether attorneys can prepare expert reports.

…Can they?

No.


Well, certainly they are able, but they shouldn’t. As Lowry shows in his example, such an attempt backfires. The defense counsel was made to look fairly incompetent (though the court avoids calling it that directly) and the defense expert was at risk of being excluded from the case.

We did some digging and found another great example. Occulto v. Adamar of N.J., Inc., 125 F.R.D. 611 (D.N.J. 1989) is another personal injury case wherein the plaintiff attorney wrote the expert’s report and had hoped to get away with it.

Unfortunately for him, a draft report (exactly the same as the actual report) was included in the expert’s file with the following legend typed across the top:

“PLEASE HAVE RE-TYPED ON YOUR OWN STATIONERY. THANK YOU.”

During deposition, the defense attorney questioned the expert witness on who wrote the report. Obviously, the expert did not, and admitted as much; however the plaintiff attorney tried to deny it. The court was both surprised and indignant describing the discovery as “remarkable,” and largely unprecedented; and stating that the plaintiff attorney’s behavior “[could]not be tolerated.” The court even hinted towards disciplinary action.

Both Lowry’s example and this one illustrate embarrassing consequences for attorneys. But having an attorney write the expert report also has serious ramifications for experts -- being impeached or “dauberted” is a real risk. For as the court in Gerke v. Travelers Casualty Insurance Company, Dist. Court, D. Oregon 2013 (as summarized here by Seak) pointed out: the practice challenges an expert’s credibility, which may eventually present admissibility issues (aka Daubert issues). Furthermore if you are excluded over a matter like this, it jeopardizes your ability to be hired in future cases, not to mention your exclusion will likely be included in motions to strike you in other cases even if you are hired.

While Occulto and Gerke delve into issues of discoverability that we won’t cover now, the main takeaway is that it is generally an unwise idea to sign your John Hancock to a report ghostwritten by someone with a legal pad. Take heed of the Occulto court’s observation: “[A]n expert who can be shown to have adopted the attorney's opinion as his own stands less tall before the jury than an expert who has engaged in painstaking inquiry and analysis before arriving at an opinion.”