Expert’s reports can be written better and there are resources available to enable them to do this. This need will be driven in part by civil procedure rules such as Rule 55 in Nova Scotia, Canada. These rules require an objective presentation of opinion to the court and a statement of the certainty with which these opinions are held.
Rule 55 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 good investigation. The rule reduces reliance on discovery in the civil litigation process and increases reliance on experts’ reports, and, by inference, sets a high standard for the reports.
Reason for poorly written expert reports – but no excuses
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 techncal expert too much. We are not educated and trained to communicate with lay people. We then 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 in well written, laymen’s terms. That they 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 the lawyer is ensuring that he or she understands the report before it goes forward. The lawyer 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. 1) – and a potential embarrassment to lawyers, judges, and juries, not to mention the engineer and the scientist.
Source of experience leading to my 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, noted that he experienced a culture in much larger organizations – 200 staff, that encouraged and required good writing skills, and they achieved this (1). 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. I plan to publish an item in future on how to find an expert and what to look for.
Sources for expert report writers
CDs and books
I was prompted to write this item on receiving the latest edition of a newsletter from Expert Communications, Dallas, Texas, a few days ago. This firm provides expert witness training tools and other services for 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.
Steven 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 told me last Thursday 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 – and I agree, that if you don’t have time to read a book – and many of us don’t these days – and actually like to get your education via oral and video presentations, then the CD will provide some insight into this important topic of report writing – and possibly contain a zinger from Steven Babitsky.
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). 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 personally saying and basing your statement on? These are critical questions for an expert to keep in mind when writing a report.
(You might be interested in Professor MacDonald’s blog on business ethics and behaviour at www.businessethicsblog.com He’s had it up for over six years – and it’s well written. It’s been rated one of the most influencial business blogs a number of times since he put it up)
The importance of instruction in critical thinking can be gathered from the fact that hundreds of first year students at Saint Mary’s and other universities are required or encouraged to take this course. The course was given by three different professors the year I took it. My class had about 200 students.
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 sources like those at www.thegreatcourses.com can help solve that problem.
This firm offers several hundred courses on DVD 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.
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. 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 sources on writing better expert reports
There’s no shortage of guidance and no excuse for not writing better expert reports. This will come about driven by the high standards required by civil procedure rules like Rule 55 in Nova Scotia. Rules like this will out the poor writers.
References
- Personal communication. Gary Bartlett, P.Eng., VP Engineering, (ret’d), IMP Aerospace, Halifax, Nova Scotia, Canada
- Expert Communications, Dallas, Texas www.expertcommunications.com
- SEAK, Inc., United States www.seak.com
- Toulmin, Stephen E., The uses of argument, updated edition, 2003, Cambridge