Expert Witness Reports in Federal Civil Litigation: The Role of the Attorney in the Expert Witness Report's Preparation
47 Pages Posted: 4 Sep 2019
Date Written: September 3, 2019
Every day across America civil litigators in federal court work closely with experts to create required expert reports and hone expert testimony. Yet they do so without clear guidance as to the limits, if any, on their assistance. Despite an attempt in 2010 to clarify the rules in this area with amendments to the Federal Rules of Civil Procedure, that attempt has proven woefully inadequate. Today there is no consensus as to the line between proper assistance and lawyer overreaching. There are major areas of uncertainty over the means by which the degree of lawyer involvement can be discovered. While there is substantial agreement that lawyer assistance at times is so excessive that exclusion of the expert’s report is warranted, or at least that that involvement is relevant to the weight to be afforded the expert’s testimony, some courts so limit the inquiry into the lawyer’s role in assisting the expert that applying these safeguards is near impossible. In this article, I unpack the current doctrine laying bare the areas of disagreement. At a minimum, this arms litigants with competing arguments to assert when discovery disputes in this area arise. With the disagreements clearly identified, courts may yet come to a consensus on these issues, but the experience of the last eight years under the 2010 regime suggests that hope is a remote one. Assuming some courts will continue to frustrate attempts to uncover the extent of lawyer influence under the current rules, I propose a variety of alternatives that can check excessive lawyer involvement without creating the problems the 2010 amendments were intended to address.
Keywords: civil procedure, professional responsibility
JEL Classification: K10, K41
Suggested Citation: Suggested Citation