Glenn E. Weadock, Independent Software Inc., July 18 2015
As writing projects go, the expert report is an unusual animal. You write it with great care, but are constantly aware that it may have the lifespan of a fruit fly, given that a case can settle at any time (often as a direct consequence of a well-crafted expert report!). On the other hand, it can prove to be one of the more important documents in a fully litigated case, perhaps the document on which the outcome will turn.
Another strange aspect of the expert report is that you have to write for multiple audiences. While it would seem natural to consider the judge or jury as your readership, they may never actually read your report. You can bet, however, that opposing counsel and experts will scrutinize it carefully, and try both to rebut it and to use it as fodder for your subsequent testimony.
I’ve written twenty-three expert reports over the past several years, and for me, the four “C’s” – completeness, clarity, consistency, and credibility – comprise the structural pillars of an excellent report, like the four stout legs on a solid hardwood table. Here are a few comments on each, from the standpoint of an expert witness (and, I hasten to add, not an attorney).
Completeness matters in part because you may have no further opportunity to present facts or arguments germane to your position after the filing of the expert report. I have seen a judge refuse to consider new arguments that do not appear in the expert report, regardless of their merit or relevance. For example, in the patent world, if you think you might rely upon principles such as the doctrine of equivalents, induced infringement, joint infringement, etc., these probably need to be present in the report.
Having said that, a big challenge in achieving the “completeness” objective is to include all the good arguments while not diluting the report with weak ones. A common compromise is to include all the reasonable and defensible arguments you can think of, but devote the most time and space to the strongest lines of reasoning.
When it comes to testing, as for example proving patent infringement, I try to document my methodology and conduct my analyses in a way that leaves no significant basis for the other side to question your results. This means controlling as many untested variables as you can, and documenting everything you do. For example, in computer-related cases, I start with a fresh install of the operating system and/or application at issue, and take a lot of screenshots or photographs. You may not wish to bog down the main body of your report with every detail, but you can always include them in an appendix or on a DVD.
Another aspect of completeness is in the “documents considered” part of the report. I try to make sure that every potentially relevant document is listed in that section, even though doing so can be challenging in a big case. If you omit a document, you may not be able to use it in court, and you may be opening yourself up to criticism for not considering all the relevant material. I sometimes make a draft of this section first, to remind myself of any important documents that I haven’t read yet but need to.
Clarity is important for two main reasons. First, demanding a clear report of yourself forces you to crystallize your facts and arguments so that you are clear on them. Second, a clear report will help the judge or jury understand your points if your case goes to trial. The other side may excerpt your report and splash your words on a PowerPoint slide for the courtroom to read, so your statements should all make sense, even when they deal with technical subject matter. Minimize the use of words such as “this” and make sure all pronoun antecedents are unambiguous. To the extent possible, given relevant protective orders and confidentiality agreements, have someone else read your report and flag sections or sentences that are unclear. My writing is usually clear to me, but that’s never the best test!
I have found that analogies can help clarify concepts, but when I use them, I try to be careful to qualify them. A favorite attorney game is to take your analogies places you never intended them to go, or extend them to the point of absurdity. Still, a well-crafted analogy can sometimes convey a concept concisely and clearly, as James Barksdale, president of Netscape, did in the US v. Microsoft trial in which I testified. When making the point that a user doesn’t necessarily want a Web browser that is integrated with an operating system, he said that “I may want a house, and I may want a boat, but that doesn’t mean I want a houseboat.” It’s hard to imagine a clearer refutation of the generalization that all bundling is a good thing for consumers.
Consistency means that your report is more likely to be intellectually rigorous and therefore both more accurate and more difficult to attack. One of the favorite ways attorneys try to discredit an expert is to juxtapose different quotations in an attempt to show that they contradict each other. (I have even had lawyers go back many years and pull a sentence or two from one of my books – it’s never worked, but you have to admire their diligence.) Whatever your lines of reasoning, they must be internally consistent. You are the expert and your opinions should not be mercurial. If you discover that two arguments are at odds, that’s a clue that one of them is closer to the truth than the other. The same applies to key terms and phrases: they can’t mean one thing in one part of your report, and something else in another.
In the field of patent law, where I work, it is also important to consider the effect of validity arguments on infringement, and vice versa. If your client has retained separate experts for validity and infringement, the potential for inconsistent reports can increase. Further, if a patent is being litigated in an Inter Partes Review, as well as a district court, even more possibilities for inconsistency can exist.
Credibility means, in part, that you avoid advancing arguments that run counter to reason, logic, or common sense. Once you lose credibility with a judge or jury, it is difficult to reclaim it. When I advise attorneys that a suggested line of reasoning seems weak or unsupportable, I am helping prevent the subsequent exposure of that line of reasoning as unrealistic, improbable, or fallacious. Sometimes you have to be a bit of a diplomat in these situations, but remember that everyone on the team wants the same thing: a solid report that will withstand challenges. Also remember that you’re the one swearing that everything in your report is true.
A credible expert report also avoids hyperbole, broad generalizations, and overstatement. It may not make for dramatic reading, but it’s more important that it present you as a credible and objective analyst rather than an impassioned (and therefore possibly biased) advocate. Leave advocacy, passion, sarcasm, righteous indignation, and any other emotions to the attorneys. The expert should be the calm voice of reason and experience: a voice that a judge or jury can trust.
I have always believed that doing your own writing enhances a report’s credibility. Obviously experts collaborate closely with attorneys, and there is nothing wrong with attorneys drafting some of the content; but sometimes attorneys prefer to write the document almost entirely, which can be risky. For example, credibility suffers when an attorney writes something that the expert can’t agree with and must disavow in deposition or at trial. The expert is responsible for making sure that every statement in the report is technically accurate and fair. Furthermore, I have yet to experience a deposition in which opposing counsel didn’t ask me whether I wrote my own report. Finally, although speaking from your own (duly documented) experience is compelling, an abundance of citations helps enhance credibility as well, as long as the sources are reputable. If you can occasionally cite to your own publications, so much the better.
When the report is nearing completion, I like to re-read it from the standpoint of the four C’s. Which parts are thin, unclear, inconsistent, or unconvincing? Then I rework those parts until they are stronger. Fortunately, various synergies and dependencies exist between the four C’s. For example, consistency is a side-effect of clarity: if your report is clear, it will likely be consistent. Credibility also derives in part from clarity (obfuscators don’t inspire trust), as well as from consistency (you won’t contradict yourself if you stick with the facts) and completeness (thorough work inspires trust).
Sometimes – perhaps even most of the time – one cannot refine and polish an expert report to the highest level of quality because of real-world time and cost constraints. In those situations, you just have to do the best you can within the constraints. However, the downstream benefits of an excellent report can be great. For one thing, it can stimulate settlement negotiations. For cases that proceed to depositions and trial, I have found that if I do a good job with the four C’s, those events go more smoothly – in large part because doing my homework, and building a structure that can withstand some energetic shaking from the other side, leads to a fifth “C”: the confidence that you’ve done a professional job.
Glenn E. Weadock, MCITP, MCSE, MCSA, MCT, A+, is the president of ISI, which provides expert witness, consulting, and training services in the IT field with a focus on Internet and Microsoft networking technologies. Glenn was an expert witness for the U.S. Justice Department in the Microsoft antitrust case and has also consulted and/or testified in several high-profile patent cases, including IBM v. Amazon, Augme v. Yahoo! and Symantec v. Acronis. Glenn has written books in the famous Dummies series, as well as books on web design, client/server networking, Microsoft certification, and Windows. Glenn developed several seminars and video courses for Data-Tech Institute, co-authored Microsoft Official Curriculum courses on Windows Server 2008, and has taught PC and network troubleshooting, design, and support to thousands of students in the US, UK, Canada, and Southeast Asia. He currently teaches several advanced Microsoft seminars for Global Knowledge. Glenn has a Bachelor of Science in Engineering, With Distinction, from Stanford University, where he was elected to Phi Beta Kappa and Tau Beta Pi honor societies.