By Leonard Bucklin
There are right ways and wrong ways that attorneys act with their own expert witness. Making changes in the expert’s report is not the most important “don’t do”, but still a significant item. It’s not the most 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.
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.