All rise

Once a solicitor has instructed you, your first course of action as an expert witness will usually involve the production of a report. There are basically two types of report that can be commissioned. One is aimed solely at advising an instructing solicitor or client, the other being for use in a Court of Law. Although both should follow a certain kind of format, and are subject to the same legal requirements, only the report for use in Court is immune from reprisals over 'opinions' contained within.

The latter report is the most common form. It's generally there to assist those parties involved (including the Judge) to make the right decision on the best settlement of the dispute. As mentioned in last month's article ('Call yourself an expert?', SMT, January 2004, pp34-37), the reason for using an expert is to clarify or draw conclusions on matters that are outside the knowledge or experience of the layperson (including lawyers, judges and members of the jury).

For this reason alone, one of the most important points to remember when writing your report is to make it easy to read. Try not to use technical terms or abbreviations unless strictly necessary, and whenever you make reference to outside authorities or groups use their full names. In such instances, it may be advisable to add appendices complete with detailed glossaries or footnotes to explain their meanings or jurisdictions.

Try to make the report 'flow' in terms of the processes you went through, your analysis of the evidence and what your conclusions were (and how you reached them). Do also bear in mind that while it should be a comprehensive document, there's often huge amounts of documentation submitted for every case – of which your report will be but one part. Therefore, it's vital that an expert's report should be both clear and concise about its findings and conclusions.

In making the expert witness report concise, don't be tempted to omit anything that may be contrary to the conclusions that you draw by way of other evidence or results from any tests or inspections that were carried out. This sort of practice will inevitably undermine your position should it be raised by any party later on, and the client will have an even harder job building their argument if your opinions and conclusions no longer carry weight.

Your investigations and/or experience should help resolve any queries arising from contradictory evidence. The Courts will inevitably look to the experts to shed light on what evidence is the most reliable or factual, and how much supporting evidence there is.

Court outweighs the client
It's your role to cover all the issues that fall within your expertise, and that you have been instructed to cover. This can become tricky if your report concludes in favour of the opposition party and not your client. Whether the dispute reaches the Courts or not, you should bear in mind that, if it did, your overall duty would be to the Court and not your client.

Most solicitors will try to avoid such a situation by asking for the expert's opinion as to the strength of their case after an initial review of the documentation (and prior to commencing investigations or writing the report). Obviously, this shouldn't be an issue in cases where you've been appointed as a single joint expert witness.

The report will inevitably be a point of reference, so it's vital that some form of numbering and indexing is used. Often, where either side appoints an expert there can be disagreements over the issues in one or either report and so it helps to be able to quote the relevant section through numbers rather than long-winded explanations on where to find them. Similarly, the layout needs to be structured in such a way that it's easy to establish what's fact and what is opinion... and upon what facts, results or documentation the conclusions have been drawn.

Some solicitors prefer the expert witness to leave larger margins, or to produce reports in double-line spacing so as to allow them to make notes in their copies. Try not to issue reports in different formats as confusion may arise from discussion centred on items giving the page number as reference.

Structuring the witness report
To some extent the content of your report will dictate its structure. There's a standard way of doing things, with an introduction followed by the background and facts of the case, results and analysis and then your opinions/ conclusions. Appendices finalise the job.

The report should begin with a front cover or introductory page stating the title of the report (or the issue it covers), whom (name and contact details) it was prepared by and when and some evidence of who commissioned the document (again, name and contact details will be sufficient here). If it's likely to be a lengthy report or to include a number of references and appendices, it may be a wise idea to include a contents page at this point as well as an executive summary for a quick overview of the expert's report.

Following this tends to be the introduction in which you should endeavour to lay out the instructions you received – or what it is you've been asked to comment on – and the issues central to the case as you see them.

After this should be a list of all the documentation or evidence to which you've enjoyed access during preparation of the report. From here, it's natural to set out the facts of the case or background to the issues you're being asked to evaluate. This might be a brief description of procedures, layout or equipment or timings and patterns of events, and should appropriately aid readers to understand the relevance of the issues requiring investigation.

In cases involving some testing of materials or circumstances, this section should lead on to a description of what experiments were carried out, how they were conducted and by whom. On occasion, it may also be useful to describe why it is that you carried out these tests and what you were hoping to show.

In making the expert witness report concise, don’t be tempted to omit anything that may be contrary to the conclusions that you draw by way of other evidence or results from any tests or inspections that were carried out

All results from any tests conducted should be included either in full or – if deemed to be too overwhelming – a summary of your results ought to be cross-referenced with the relevant item in the full results contained within the appendices. Any observations from site visits or comparisons and analysis of evidential documentation should also be included. This section will be where the different parties involved (or the Courts) will be reliant on your knowledge and experience to draw out the key points of evidence.

Opinions and final conclusions
From these key points, you should then be able to reach some conclusions on the issues you were originally asked to look at, and will formulate your opinion as to what happened, why it happened, whether or not what happened was acceptable practice and who or what might be responsible.

Following your conclusion, it's vital to include what is often referred to as the Expert's Declaration. Generally speaking, this involves two signed and dated statements (namely 'The Statement of Duty' and 'The Statement of Truth'. Although the format and wording of The Statement of Duty may vary, The Statement of Truth is set out as: "I believe that the facts stated in this report are true, and that the opinions expressed are correct."

For its part, The Statement of Duty should be a few lines declaring that the expert has understood their duty to the Court and complied with it. If you're in any doubt as to what wording to choose for your Expert's Declaration, there's a standard form available from the Expert Witness Institute. Take a look at: www.ewi.org.uk/declaration.asp It's normal practice to follow the Expert Declaration with some sort of CV or profile listing the qualifications and experience that entitle you to be referred to as an expert witness on the issues and circumstances surrounding the case in question.

If listed in full, there are various items within the report which would make it lengthy or technical, so it's often best to place them within the appendices and merely refer to the relevant sections. It's also a good place to provide a glossary of any jargon or abbreviations you've used, or any documents referenced.

As some Courts like to see the instructions and information that you've received before and during drafting of the report, this would be the perfect place to add such items.

The Rules of Disclosure
In most cases, the expert's report is required to provide clarification or evaluation of any issues that require technical, scientific or specialist knowledge. Where the document has been commissioned for the purposes of litigation, the party commissioning the report is likely to want to refer to it in their negotiations or in Court. To do so, they'll first need to disclose the document to the relevant parties involved.

The aim of such rules is that by disclosing all the evidence that will be used to form the basis of either parties' case, both sides will have the opportunity to reassess their own position (and possibly seek an early settlement) or be properly prepared for any questions that might otherwise have been a surprise. If they fail to do so for one reason or another, the Court may decide that they will not be entitled to refer to the report (or alternatively give orders that an exchange of information or disclosure occurs). Either way, it will be up to the solicitors or parties instructing you to advise as to what material you'll need to hand over and to whom.

It's vitally important that you be fully prepared – both mentally and physically – for the possibility that your case might go to Court. There will be occasions where you might well feel intimidated by a barrage of questions on statements contained within a report you may have produced many months before. It goes without saying that you should read it through again and familiarise yourself with the main points beforehand.

Perhaps work with your solicitor to prepare a list of possible questions you might be asked.

If you're not a naturally confident person or you're unsure of how to conduct yourself in Court then there are a number of courses available from some of the expert witness organisations that could prove beneficial*.

The Rules of Engagement
Your presentation skills might be key to whether the Court decides to accept your expert opinion. Dress smartly and allow plenty of time to arrive at Court well before the case hearing begins. Arriving late and not a little flustered will not impress the Judge one bit.

Make no mistake, there will definitely be some difficult questions coming your way. When coming under heavy cross-examination, you may feel that you weren't allowed to get your point across. In these situations, don't be afraid to ask the Judge whether you can elaborate on certain points. Don't be tempted to over-elaborate as your pointers will be lost.

Despite all the protocol and the daunting prospect of appearing before Judges and barristers, acting as an expert witness need not be as complicated a role as it initially appears.