The Nature of Forensic Expert Reports
Michael Sean Quinn*
The word “forensic” in this context simply means, “some how involved in litigation.” This concept–or these concepts–apply to insurance litigation just as it does not all litigation. Within the area of insurance litigation the following applies especially to insurer bad faith litigation since more empirical facts are often involved–there and in the area of alleged insurance fraud.
Virtually all expert reports in virtually all litigation are “preliminary” in the sense that facts may be developed after the report is “published” to the other side. Here new descriptions of material may need to be added, some opinions may need to be further argued (or argued in modified ways). New opinions may need to be added, as might references to new testimony or old testimony read in the light of the new. An expert report may need to be modified as the result of the witnesses own testimony or the testimony of another expert, e.g., the opposing expert. Something along these lines needs to be set forth in all reports.
In addition, most reports are not based on personal knowledge and most of them, even those that are backed by scientific evidence, as certain. Hence, the following (or something like it) should also be included. I have taken it from an actual expert report.
“Readers must keep in mind that many components of virtually an expert opinion have an “If-Then” form, even if not expressly formulated that way. In any case, here is a paradigm: “If these are the facts, then here is my justified opinion.” Here is another: “If such and such alleged facts are actually the facts, or among the facts, or almost–virtually–the facts), where the “almost” makes a very small, irrelevant difference or none at all, then here are my opinions.”
Of course, experts should work very hard to make sure that got the facts so far developed, as many of the relevant ones as possible, those propositions which assert, sketch, or describe very probably facts, and so forth. It is at least as important that counsel try to make sure that the expert gets what there is s/he might need.
*Michael Sean Quinn, Ph.D., J.D., c.p.c.u. . . .
The Law Firm of Michael Sean Quinn
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Originally posted on 08/25/2015 @ 3:45 pm