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Writing and Defending Your Expert Report: The Step-by-Step Guide with Models
Leukemia Research 26 (2002) 1051
Book review Writing and Defending Your Expert Report: The Step-by-Step Guide with Models Steven Babitsky, James J. Mangraviti, SEAK Inc., 404 pp. The cutting-edge issue in American courtrooms for the last decade has been the uses, abuses and judicially-imposed restrictions on scientific (including medical) expert testimony. The basic tension is between the right to have juries decide fact disputes—which right is found in the US Constitution—and the concern that scientific evidence, delivered by a seemingly well-credentialed expert, has a misleading aura of infallibility which has a high propensity to mislead even conscientious juries. The legal system has generally adopted this solution: to require the court (that is, the judge) to make sure that the expert’s underlying methods and bases for his or her opinion are reliable and based upon science and if so, to permit the jury to consider the ultimate conclusion, whatever it may be. The premise is that effective cross-examination will unmask error in the conclusions but probably will not in the underlying esoteric and technical bases for the conclusion. In consequence, much of the fight now centers on pre-trial motions to exclude experts’ opinions on the ground that the opinions are not reliable nor based upon real science. Once the province of defense lawyers in civil cases, such challenges now are uniformly brought by both sides to a civil dispute, it having been recognized that neither side to a dispute is immune from seeking to peddle less-than-scientific opinions. An expert witness therefore, in today’s legal environment, should expect to have his or her facts, assumptions, and sources of information carefully scrutinized by a lawyer well-trained to find the voids. The expert’s report is the fundamental tool used by both sides either to validate or to invalidate the expert’s ultimate opinion. The courts have certain express requirements for such reports (e.g. a complete statement of all opinions to be expressed, the basis and reasons for each opinion, the data or other information considered). But the real difference between an effective and ineffective report—and thus in many cases whether the expert will get to testify at all—is the art of
expert report writing including such things as magic words to use (e.g. to a reasonable degree of medical certainty) and to avoid (e.g. including but not limited to). Babitsky and Mangraviti are each lawyers who are experts in providing ‘how to’ information to expert witnesses. Their Writing and Defending Your Expert Report is practical, comprehensive and easy to read. Readers ought not be put off by its length; it is well-organized with a detailed table of contents and index. It illustrates the good, the bad and the dumb with actual trial transcripts and judicial opinions. It focuses throughout on the right thing: the expert’s credibility, and all of its advice is designed to bolster credibility. (Freebie: avoid undue ‘assistance’ of counsel in writing the report). It contains 12 model reports in various areas of scientific endeavor including toxic tort, medical negligence, and independent medical evaluation. The book would be valuable for neophyte and veteran expert alike. I intend to require it be read by lawyers working with me. For medical specialists who contemplate providing an expert opinion either for the plaintiff or for the defendant this book is a ‘must read’ as well. A well written and documented report is a critical and essential component that lends credibility to the expert’s opinion. Physicians who provide expert information should be at least as well prepared for testimony as the attorneys that they encounter. Mr. Riff1 has provided the major input to this review with which I agree fully. Lawrence P. Riff Lawrence P. Riff, Esq., Steptoe & Johnson LLP, Los Angeles, CA, USA John M. Bennett James P. Wilmot Cancer Center University of Rochester Medical Center 601 Elmwood Avenue, Rochester, NY 14642, USA E-mail address: john [email protected]
1 Lawrence P. Riff is a partner in Steptoe & Johnson, LLP, an international law firm. He is a 20-year-trial lawyer whose practices focus on toxic tort. He is resident in the firm’s Los Angeles office where he also serves as Managing Partner.
0145-2126/02/$ – see front matter PII: S 0 1 4 5 - 2 1 2 6 ( 0 2 ) 0 0 0 7 2 - 3
Book review Writing and Defending Your Expert Report: The Step-by-Step Guide with Models Steven Babitsky, James J. Mangraviti, SEAK Inc., 404 pp. The cutting-edge issue in American courtrooms for the last decade has been the uses, abuses and judicially-imposed restrictions on scientific (including medical) expert testimony. The basic tension is between the right to have juries decide fact disputes—which right is found in the US Constitution—and the concern that scientific evidence, delivered by a seemingly well-credentialed expert, has a misleading aura of infallibility which has a high propensity to mislead even conscientious juries. The legal system has generally adopted this solution: to require the court (that is, the judge) to make sure that the expert’s underlying methods and bases for his or her opinion are reliable and based upon science and if so, to permit the jury to consider the ultimate conclusion, whatever it may be. The premise is that effective cross-examination will unmask error in the conclusions but probably will not in the underlying esoteric and technical bases for the conclusion. In consequence, much of the fight now centers on pre-trial motions to exclude experts’ opinions on the ground that the opinions are not reliable nor based upon real science. Once the province of defense lawyers in civil cases, such challenges now are uniformly brought by both sides to a civil dispute, it having been recognized that neither side to a dispute is immune from seeking to peddle less-than-scientific opinions. An expert witness therefore, in today’s legal environment, should expect to have his or her facts, assumptions, and sources of information carefully scrutinized by a lawyer well-trained to find the voids. The expert’s report is the fundamental tool used by both sides either to validate or to invalidate the expert’s ultimate opinion. The courts have certain express requirements for such reports (e.g. a complete statement of all opinions to be expressed, the basis and reasons for each opinion, the data or other information considered). But the real difference between an effective and ineffective report—and thus in many cases whether the expert will get to testify at all—is the art of
expert report writing including such things as magic words to use (e.g. to a reasonable degree of medical certainty) and to avoid (e.g. including but not limited to). Babitsky and Mangraviti are each lawyers who are experts in providing ‘how to’ information to expert witnesses. Their Writing and Defending Your Expert Report is practical, comprehensive and easy to read. Readers ought not be put off by its length; it is well-organized with a detailed table of contents and index. It illustrates the good, the bad and the dumb with actual trial transcripts and judicial opinions. It focuses throughout on the right thing: the expert’s credibility, and all of its advice is designed to bolster credibility. (Freebie: avoid undue ‘assistance’ of counsel in writing the report). It contains 12 model reports in various areas of scientific endeavor including toxic tort, medical negligence, and independent medical evaluation. The book would be valuable for neophyte and veteran expert alike. I intend to require it be read by lawyers working with me. For medical specialists who contemplate providing an expert opinion either for the plaintiff or for the defendant this book is a ‘must read’ as well. A well written and documented report is a critical and essential component that lends credibility to the expert’s opinion. Physicians who provide expert information should be at least as well prepared for testimony as the attorneys that they encounter. Mr. Riff1 has provided the major input to this review with which I agree fully. Lawrence P. Riff Lawrence P. Riff, Esq., Steptoe & Johnson LLP, Los Angeles, CA, USA John M. Bennett James P. Wilmot Cancer Center University of Rochester Medical Center 601 Elmwood Avenue, Rochester, NY 14642, USA E-mail address: john [email protected]
1 Lawrence P. Riff is a partner in Steptoe & Johnson, LLP, an international law firm. He is a 20-year-trial lawyer whose practices focus on toxic tort. He is resident in the firm’s Los Angeles office where he also serves as Managing Partner.
0145-2126/02/$ – see front matter PII: S 0 1 4 5 - 2 1 2 6 ( 0 2 ) 0 0 0 7 2 - 3