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"Mr. Attorney, do not correct the
expert’s typo errors in her report" -
And the other top ten mistakes
attorneys make when interacting with their own expert witness.
There are right ways and wrong ways that attorneys act with their own
expert witness. We will give you a list of "don't do", in the
hopes that it will inspire you do avoid these top ten mistakes. Our list
starts with #10, the least important, but still a significant item. It's
the least important, because it is not done too often in the many times expert
reports hit the desk of the hiring attorney. But when done, it crates a
rough spot in the road to verdict that may upset the apple cart.
Attorney Mistake # 10 - Making changes in the expert's
report.
No matter how insignificant the
change an attorney makes in a report submitted by an expert to an attorney,
and no matter how much the expert tells the attorney to make the "mere
typographical correction" the expert wants to make --- an attorney should not do it.
There is nothing more likely to raise ugly suspicions about the independence
of the expert than having the attorney make changes. The expert should
always make the change and resubmit it to the attorney.
In 2006, there was an excellent example of what the
attorney should not do, and instruction on the typical reaction of a finder of
fact. In Re Enron Corp. Secs.,
Derivative, & ERISA Litigation, MDL No. 1446, Case 4:01-cv-03624 (U.S. District Court, S.D. Texas, Houston Division, Document No. 5028, Sept. 14, 2006)
involved a defense motion to exclude the testimony of an expert witness
designated by plaintiffs, after it was discovered during the expert's
deposition that the expert report had been amended Specifically, the
report's table of contents had been substantially altered and minor revisions
regarding punctuation, and formatting changes had been made to the body of the
report, by eager attorneys who wanted to make the report more readable and
user-friendly.
After conducting an extensive line-by-line comparison
of the two reports, the Court concluded that no material changes had been made
to the body of the report. The Court denied the motion to exclude the
testimony of Plaintiffs' expert. The Court. however, was distressed that its
time had been taken to make the comparison. Instead of attacking the
defense for wasting the court's time, the court voiced its concern that any
change made by legal counsel of a party to an expert report - even changes to
the table of contents - gives rise to suspicion that the attorney may have
impermissibly participated in writing the report. As a punishment to
plaintiffs' counsel for making changes to the expert's report, the court
awarded attorneys' fees to the defense for bringing the motion.
Come back to this page next month, for another of the "top
ten mistakes attorneys make in their interaction with experts."
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