New civil procedure rules will result in the writing of better expert reports

(This item is an update of a posting on much the same topic on August 21, 2012.  I elaborate some of the themes developed previously – notably the need for better report writing and the resources available to encourage this.  I also suggest that there is an argument for adding skillful report writing to the attributes of a qualified expert engineer)

The need for better expert report writing

Expert’s reports can be written better and there are resources available to encourage this.  The need for better reports will be driven in part by civil procedure rules such as Rule 55 in Nova Scotia, Canada.

Requirements of the rules

These rules require an objective presentation of opinion to the court and a statement of the certainty with which these opinions are held.  Also required is a clear explanation of the reasoning leading to the opinion.  And by inference, demonstration that a sufficiently thorough forensic investigation has been carried out to support an acceptable degree of certainty in the opinion.

Expert engineers in eastern Canada often report on the causes of failure in the built and natural environments – why things fall down or don’t work properly, and the causes of industrial and traffic accidents – why people get hurt.

Skillful report writing a key attribute of a qualified expert engineer

The need for well written reports will give counsel and the courts another attribute by which to evaluate the qualifications of an expert professional engineer.

In fact, an argument could be made for adding report writing to the five widely accepted key attributes of an expert engineer (Ref. 1):

  1. Education
  2. Training
  3. Experience
  4. Skill
  5. Knowledge
  6. Report writing

Some would say that a qualification in report writing is implicit in the basic five attributes but I don’t think so.  Engineers are basically educated and trained to examine, measure and test, and to analyse the data obtained – tasks that are quite quantitative in nature, not literary.

We report our analyses but the reports are often in the form of drawings or number-dense compositions.  Nor are we required often enough to report our reasoning – how we arrived at the numbers.  That’s not report writing to the standard required in an expert’s forensic report.

Rule 55 limits discovery of experts and, by implication, places great emphasis on the expert’s report and, by inference, the standard to which the report must be prepared.

Engineers report easily and well to other engineers but often enough don’t report well to counsel and the court.  For example, our leaps of faith from raw data to opinion are easily understood by other engineers but not so much by counsel and the court.

“The need has skyrocketed for experts with specialized knowledge who can skillfully explain their knowledge (italics mine) and provide relevant opinions.  Experts play a significant role in investigating failures and presenting their findings in court (almost always today in a report).  In addition, plaintiffs, defendants, counsel, judges, and juries are being asked more and more to believe and rely upon opinions of the experts, a phenomenon known as “expert credito”. (Ref. 1)

Rule 55 (Nova Scotia) will promote better report writing and forensic engineering investigation

When I first prepared a report two years ago according to the requirements of Rule 55 I was struck by the potential for this rule to promote better expert report writing,  And, by extension, better, more thorough forensic engineering investigation.  You can’t write a good report unless you’ve carried out a thorough investigation.

Reason for poorly written expert reports  

I have been troubled by the poor composition, unsupported statements, and leaps of faith in drawing conclusions – some that would scare a tightrope walker, that I’ve seen in some experts’ reports.

No surprise given that we engineers and scientists like to measure things, crunch numbers and analyse data.  We are not wordsmiths by nature.  But this doesn’t relieve us of the responsibility to communicate our findings in simple English and to do it effectively.

Not to fault the technical expert too much.  We are not educated and trained to communicate with lay people.  We practice for several decades communicating for the most part with other technical types – no simple English skills needed - jargon only spoken here.  Finally, we are retained in later years for our extensive technical knowledge and experience and presented as experts to the courts - only to find we can’t write and speak simple English to civil litigation lawyers, judges, and juries.

Nor is the civil litigation lawyer – the wordsmith in the process – relieved of a responsibility to confirm that the expert they retain can present their findings skillfully in well written, laymen’s terms.  Confirm that the expert can write so judges and juries can understand.

The role of the expert in the judicial system is to interpret and explain technical material.  One role of counsel is ensuring that he or she understands the report before it goes forward.  Counsel is like a gate keeper.

Being technical is neither an excuse nor the justification for poor writing.  The inability to write well is a career-limiting short-coming (see Ref. 2) – and a potential embarrassment to lawyers, judges, and juries, not to mention the engineer and the scientist.

My experience leading to these views on the state of expert report writing

My experience leading to these views has been with engineering and legal firms ranging in size from sole practicioners to 50 to 75 staff.  Firms located in eastern and western Canada, and overseas in Australia, the U.K., and the Caribbean.

However, my colleague, Gary Bartlett, P.Eng. noted that he experienced a culture in much larger organizations – 200+ staff, that encouraged and required good writing skills, and they achieved this (Ref. 2).  Gary was an electrical engineer with the Canadian air force – air crew, for about 12 years then with the aerospace industry for at least another 25 years.  He still writes reports for the industry.

So, while there is a problem out there, the character and extent of it varies.  It behooves the lawyer in selecting an expert to learn a little something about where his expert is coming from with respect to his skill writing a report.

Resources for expert report writers

CDs and books

I was prompted to write this item on receiving a newsletter from Expert Communications, Dallas, Texas, a few days ago. (Ref. 3)  This firm provides expert witness training tools and other services to experts.

The newsletter announced the availability of a CD on report writing entitled, Expert Report Writing: Effective and Defensible.  The CD is an hour-long teleseminar of a discussion between Rosalie Hamiliton of Expert Communications and Steven Babitsky, president of SEAK, Inc.  SEAK also provides services to experts. (Ref. 4)

Steven Babitsky is formerly a trial attorney and a co-author of Writing and Defending Your Expert Report.  This book is one of the best I’ve read and studied on the subject.  Every expert should be given a copy by their retaining counsel.

Rosalie advised in an e-mail that If you have Steven’s book you don’t need the CD, although they do complement one another to some extent.  But, she says, if you don’t have time to read a book and actually like to get your education via oral and video presentations, then the CD will provide insight into this important topic of report writing.

Critical thinking course

Talking about oral presentations, one of the most valuable experiences I’ve had in recent years, with respect to my practice in forensic engineerng investigation and the accompanying report writing, was to take a course in critical thinking.

This was an intensive, year-long, two, 1.5 hour lectures a week course given by Professor Chris MacDonald at Saint Mary’s University in Halifax (Chris is now at Ryerson University in Toronto). (Ref. 5)  There was considerable emphasis in the course on looking critically at the basis of statements made to us and that we make; What’s the statement founded on?  What are you saying and basing your statement on?  These are critical questions for an expert to keep in mind when writing a report.

The importance of instruction in critical thinking can be gathered from the fact that hundreds of first year students in the liberal arts programs at Saint Mary’s and other universities are required or encouraged to take a course like this.  The course was given by three different professors the year I took it.  My class had about 200 students.

It’s interesting that many universities require first year arts students to take a course in critical thinking.  But don’t require this of first year engineering students.  A serious omission in my opinion.

Experts, regardless of how experienced, well known, and long in the tooth they might be would benefit from a course like this – and their expert reports would be better for it.

But, like reading books, not everyone can take time out to take courses at a university.  I’m beginning to think that on-line sources like The Great Courses can help solve that problem. (Ref. 6)

This firm offers several hundred courses on DVD and CD on a range of topics including critical thinking, reasoning, and writing.  The presentations are good and reasonably priced.  You receive a synopsis of the course with the DVD if you still want to do some reading.  A transcript of the lectures can also be purchased.  Some of the courses are interactive.  I have three of their courses on reasoning and writing and will buy two more for $79 in the next two weeks.

Arguing and report writing

Gaining some understanding of Toulmin logic would also benefit those of us writing expert reports.  I see it as a practical logic as opposed to a formal logic.  Toulmin advocates – analogous with existing practice in law – a procedural rather than a formal notion of validity.  He outlines a way that assertions and opinions can be rationally justified.

His text, The Uses of Argument, is a hard read because of the terminology and style of writing in vogue in the U.K. in the 1950s when he first published his ideas. (Ref. 7)  But, fortunately, you can go on-line and view graphical representations of his ideas which I thought were quite good.  There are also courses and lectures on his methods in simple English.  The illustrations will remind experts in writing their reports of the importance of ensuring their statements are well founded.

There’s no shortage of resources on writing better expert reports

There’s no shortage of guidance and no excuse for not writing better expert reports.  This will be driven by the high standards required by civil procedure rules like Rule 55 in Nova Scotia.  Rules like this will result in the writing of better expert reports and the carrying out of more thorough forensic engineering investigations.

References

  1. American Society of Civil Engineers, Guidelines for Forensic Engineering Practice, 2003, Chapter 2, Qualifications of Forensic Engineers
  2. Personal communication. Gary Bartlett, P.Eng., VP Engineering, (ret’d), IMP Aerospace, Halifax, Nova Scotia, Canada
  3. Expert Communications, Dallas, Texas www.expertcommunications.com
  4. SEAK, Inc., United States www.seak.com
  5. MacDonald, C., The power of critical thinking, Canadian edition
  6. The Great Courses www.thegreatcourses.com
  7. Toulmin, Stephen E., The uses of argument, updated edition, 2003, Cambridge
  8. Howard, V. A. and Barton, J. H., Thinking on Paper, William Morrow and Company, 1986

 

 

 

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