Writing and Defending Your Expert Report: The Step-by-Step Guide with Models

By: 

Nathan Zasler, M.D., FAAPM&R, FAADEP, CIME, DAAPM

This is a publication that will mainly be of interest to  clinicians involved medicolegal and forensic testimony.  The text is co-authored by two lawyers who  have been visible over the last two years in producing various publications for  experts involved in the forensic/IME

This is an excellent publication for individuals beginning in the field, as well as, those of who have been in the field a while and feel they may know "all there is no know" about how to do their work.  Much of the book is common sense, however, for someone who has been involved in this field for over 15 years, I will tell you that common sense often falls by the wayside among so-called “experts”.

This book provides step-by-step advice on how to "bullet-proof" one’s reports and testimony.  It is an excellent book for lawyers to recommend to experts who may be less sophisticated or familiar with the expert testimony and/or the IME process.

Significant case law is quoted as a foundation for many of the recommendations made by the authors.  There are a number of challenging and controversial issues that the authors address in the context of this publication, many of which seemingly are ignored by lawyer and expert alike in the context of education and/or medicolegal testimony. 

For example, the common practice of lawyers coaching experts on report content and/or wording is addressed in chapter 4, entitled "Preparation of Reports and the Assistance of Counsel."  Self evident statements regarding stating one's expert qualifications are covered in Chapter 7, although the rules of presenting ones qualifications should seemingly be a given, I have, all to often, seen experts overstating their qualifications, training and/or areas of expertise.

One of the best chapters, from my perspective, was Chapter 10, which is entitled "Stating Opinions and Conclusions in a Defensible Mmanner." The authors do a really nice job of providing key phrases and/or words to both avoid, as well as, bolster the opinions expressed in a forensic report.  I would highly recommend this chapter to all clinicians involved with this type of work and/or providing expert testimony. 

One of the important areas that is also addressed in this book is the manner in which to site scientific literature in the context of supporting the opinions rendered in an expert witness context.  These issues are covered in Chapter 11 of the book. 

All too often, I have found within the context of doing this type of work over the last 15 years or so, that clinicians do not adequately provide a foundational basis for their opinions and much of the testimony seen in the field of neurorehabilitation seems to be presented without adequate scientific basis, leaving it open for a Daubert challenge.

Another interesting and important topic is covered in chapter 13, entitled "Damaging Superfluous Language and Information That Should Not Be Included In Experts Reports."  Again, this is a very important chapter for people who are truly trying to present unbiased and neutral work. 

I have often found that clinicians either consciously or unconsciously tend to "lean" their reports and use language that may be either pejorative when hired by the opposing side or overly advocating when hired by the plaintiff's side.  Such language does not belong in a report that is being presented as an “independent evaluation”. 

Chapter 16, entitled "Defeating Counsel's Tactics”, is a strong chapter, again, much of which would hopefully be common sense to any seasoned clinician involved in providing the expert witness testimony.  For the novice or clinician who is not involved in significant expert witness testimony, chapter 16 provides some very good suggestions on how to respond to numerous inquiries from the opposing counsel regarding one's opinions and report. 

Appendix A deals with "Advice from the Trenches."  Appendix B provides a model report.  One of the interesting parts of this latter section of the book is the use of specific citations to corroborate one’s  basis of opinions.  At least in the context of psychological and medical reports, I have rarely seen this technique utilized but is an interesting one to consider.

Overall, this is an excellent text that I would highly recommend to both clinicians interested and/or already involved in doing expert witness work.  I would also recommend that neurolawyers be familiar with the text as a volume they can recommend to clinicians who they may be consulting with in the context of expert witness testimony and/or independent evaluation.

Lawyers might actually pick-up some good tips that will be useful in their own work relative to examining “expert reports” with a more critical eye.

For clinicians, it would be my position that it is a medicolegal core textbook that should be on the shelf of anyone involved with expert witness testimony. Although the book may seem a bit expensive, I think the price is justified by the information contained therein. 

Overall rating: 9.5 out of 10.

Reviewed by

Nathan Zasler, M.D., FAAPM&R, FAADEP, CIME, DAAPM