Construction Site Expert Witness On Avoiding Expert Report Errors

In Avoid This Expert Report Writing Error, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

As an experienced expert report writer and testifying expert I recommend that attorneys make sure their expert avoids this common expert report writing error.

It is vital that an expert investigate and study the evidence without predisposition. I often read the reports of other experts, in which I see a section labeled “Objective”. In this section I see statements such as:

• To determine within a reasonable degree of professional certainty “if” defendants knew or should have known the dangers presented.
• To determine within a reasonable degree of professional certainty “if” the defendants improperly maintained the area.
• To determine within a reasonable degree of professional certainty “if” the defendants provided the proper warnings and safeguards.

While these statements seem harmless at first glance, they can be damaging to the expert’s credibility. During cross examination the opposing counsel will try to tear down the opinions and conclusions of the expert’s report by attempting to show the jury that the expert’s viewpoint was biased from the very beginning and his or her opinions and conclusions may be unjustifiably slanted.

The cross examination may go something like this:

Q: Mr. Expert, are all of the opinions and conclusions in this report yours?
A: Yes.
Q: Mr. Expert did you write everything contained in this report?
A: Yes.
Q: I would like to point your attention to the section in your report labeled Objectives, do you see that?
A: Yes.
Q: There are three objectives listed, is that correct?
A: Yes.
Q: Please read them for the jury.
A: (The three objectives are then read out loud to the jury.)
Q: Let’s talk about them for a moment. It is apparent that your objective is to prove that the defendant in the case, my client, knew or should have known various things. Your other objective is to prove my client is guilty of not maintaining the area. And your final objective is to prove that my client did not provide the proper safety warnings. In other words, it was your objective and goal to prove that my client was at fault from the very beginning. Isn’t that correct?
A: No, counselor, I study the evidence and then formulate the opinions and conclusions in my report.
Q: I understand, but your objective states it was to prove my client did not do or did not provide these things, so you made up your mind that my client was at fault in the very beginning before writing your report.
A: No, counselor.
Q: Well, your written objectives are clear and you set an objective or goal to show my client was at fault and to then reflect that goal in your report.
A: Once again, counselor, I did not pre-determine anything before I looked at the evidence.
Q: Would you agree that an objective is a goal you set out to do? Isn’t that correct?
A: Yes, I would agree an objective is similar to a goal.
Q: So then your objectives were the goals you set out in the very beginning to be reflected in your report.

There you have it – an example of how three seemingly harmless “if” objective statements can be twisted to hurt the expert’s credibility and tarnish or render their opinions and conclusions as not credible in the minds of the jury. It is likely the expert’s intention was to determine “if” the defendant did or did not, or was or was not at fault in any of these three areas, which, obviously, could come out either way. However, their “if” objective statements were used against them.
The lesson here is two-fold. If you are an attorney and your expert’s report lists “if” statements and/or objectives, do not allow it, or your expert will open herself up to this type of powerful and sometimes effective cross-examination.

One, and only one, simple and effective objective statement is sufficient and should be included in an expert’s report — “Objectively assess the facts and evidence of the case in order to form opinions and conclusions without prejudice”. This statement represents why you hired the expert, namely, for their expertise, integrity, and ability to evaluate the evidence and to opine based on the facts of the case. If you are an expert reading this article, avoid “if” statements and only include one objective statement as noted above. Should you choose to include “if” statements, you are opening up the possibility of being intensely cross-examined, put on the defensive and having your credibility questioned.

Read more: William Gulya, Jr., Middlesex Trenching Company, specializes in excavation & construction site preparation.