Writing an Expert Report and Creating a C.V.
Scott Bair, Ohio State University
Ignore Your Training to Write an Expert Report
The first time I wrote an expert report stating my opinions in a case, my attorney read it over, looked at me, took out his red pen and wrote "DON'T TEACH" across the front page. Writing an expert report is not like writing a term paper or a technical paper. It is the opposite and requires students to forget the way educators have taught them to write.
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HideA good expert opinion presents your opinions and none of the data or analysis underlying them. Don't cite references. Don't present tables or graphs. Don't expound or explain. Do as I was told, "DON'T TEACH." Just state your opinions succinctly. Make the opposing attorney dig out the facts, measurement techniques, data, and your analysis methods during your deposition. It's a sophisticated, expensive, time-consuming game of hide and seek.
The goal of a deposition is to ferret out the underlying foundations for an expert's opinion. To an outsider, this is an odd game to play but it is part of our adversarial system of justice. As that attorney told me, "Scott, Don't give away the play book, make them dig deep for it." For example, if you are playing the role the expert hydrogeologist for Beatrice, you might state the following:
"The direction of groundwater flow at the Beatrice property, based on contouring 83 synoptic water-level measurements made in observation wells on the morning of December 3, 1985 using an In-Situ Water-Level Indicator scaled to 1/100 of an inch, is toward the river."
Although this is appropriate style for a term paper, it gives away too much information for use in an expert report. A better way to state your opinion in an expert report is:
"Groundwater flows toward the river at the Beatrice property."
It is short, simple, and puts the onus on the opposing attorney to formulate questions to ask you during deposition to determine how you reached your opinion. It takes practice to write an expert report that states your opinions but reveals nothing else. Having students on the same team edit each other's expert reports is a good way to accomplish this.
Fibs, Lies, and Tall Tales Make for a Good C.V.
In addition to writing an expert report, each student testifying in the mock trial will also need to 'create' a C.V. that demonstrates that he/she is an expert. An expert is defined as someone with knowledge or experience not found in the normal population. An sausage maker can be an expert witness. Experts have to be declared as such by the judge. In your mock trial, all the experts are likely to be technical people (hydrogeologists, aqueous chemists, environmental engineers, geologists, etc.) requiring advanced academic degrees and several years of experience to satisfy a judge.
One of the most fun aspects my students have had in preparing to testify in our mock trials is creating their C.V. Many students magically become alumni of Harvard, Yale, Cal Tech, and Wooster. Other students become childhood geniuses and take their advanced degrees while in their teens. Some students become CEOs of Fortune 500 consulting firms. Many students recognize that publishing papers in technical journals is a sign of expertise. Other students write books. One student, seeing the fun in it, wrote on his C.V. that he authored "Big Bird's Book of Hydrogeology." Another student simply copied my C.V. from our department webpage and was declared not qualified to be an expert by the judge!
While this is a time for levity, it is also a time for students to understand that becoming an expert takes time and knowledge. It is important not to let the C.V. become too outrageous. A clever opposing attorney can ask embarrassing questions during deposition that can deflate the balloon.