Expert Reports: Should Lawyers Keep Hands Off?

From the BullsEye Newsletter: "Hands off or hands on? That is the question for litigators and experts alike as to the lawyer's role in writing the expert's report.

The answers lawyers give to that question are anything but black-and-white. Rather, many trial lawyers see their role in the report as a matter of nuance, finessed through experience. Whereas the expert is skilled in a subject, they say, the lawyer is skilled in storytelling. The lawyer's job is to ensure that the expert's report conveys both the subject and the story.

"It is an art, I want to stress," says Michael J. Abernathy, chair of the Intellectual Property Department at Bell, Boyd & Lloyd, Chicago. "You have to be involved in this without crossing the line in terms of improperly molding the expert's opinion."

Federal courts require a written expert report pursuant to Rule 26 of the Federal Rules of Civil Procedure. State court rules vary in their requirements for a report. Rule 26 explicitly states that the report is to be "prepared and signed by the witness."

But does Rule 26 mean the lawyer must give the expert carte blanche in writing the report? Lawyers generally agree it does not, but they do not necessarily agree on the appropriate degree of their involvement. The danger of a lawyer's over-involvement is that it opens the report to impeachment.

"I would rather have a very objective report with minimal attorney input than a report which is overly managed by counsel," says Russell Boltwood, vice president of licensing and intellectual property at UTStarcom Inc. in Alameda, Calif. "Ultimately, a report which is heavily managed by attorneys for content will not likely withstand good impeachment by opposing counsel's experts."

At the same time, under-involvement is equally risky, exposing a lawyer to loss of control of the evidence needed to make the case. Andrew R. McGaan, a litigator with Kirkland & Ellis in Chicago, recalls his fear as a young lawyer of being too hands-on with an expert and how a mentor changed his view.

"A senior lawyer at my firm once said to me: Would you rather have it come out that you played a role in the opinion or would you rather have come out an opinion in which you played no role?"

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