Give standard directions to your expert witness, to receive better reports. Use the following legal form: a letter request to your testifying experts who are preparing a report for you, in federal court or in states having rules similar to F.R.Civ.P. 26.

Our tips to you on tactics, for you to use, are in [square brackets].  Of course, in the letter you actually  send out to your expert, do NOT include our bracketed tactical tips .

Following this form letter, scroll down to view additional materials on the subject of expert reports.

This is a Power Litigation™ article. The Power Litigation™ and Bucklin Trial Notebook™ trademarks each indicate publications for lawyers authored by Leonard Bucklin, a Fellow of the International Academy of Trial Lawyers.

Dear Expert:

Please see that your report conforms to the federal Rule 26 requirements. The federal court Rule 26 requirements for an expert=s opinion states in part there must be a written report, prepared and signed by you, which is to be furnished to the other attorneys in the litigation. Your report must contain the following five items:

1. All opinions to be expressed in court and the basis and reasons therefor;

2. The data or other information considered by you in forming the opinions;

[The attorney may supply the expert with a transmittal letter or a contents listing that sets forth everything he/she sends the expert. The expert can attach that transmittal letter or contents listing to the report, and then state in the report that the items shown on that letter or contents listing are items that were considered in forming the opinion. Also see note for the item 3 below]

3. Any exhibits to be used as a summary of or support for the opinions;

[Usually it is best for the expert to state that any item listed in item (2) above or any page or pages of his/her report may be used as an exhibit as a summary or in support of his/her opinions.]

4. Your qualifications, including a list of all publications authored by you within the preceding ten years;

5. The compensation to be paid you for the study and testimony;

6. And a listing of any other cases in which you have testified as an expert at trial or by deposition within the preceding four years.

Thank you.

Yours truly,

If you want to put the above letter directly into your computer for your use, an expanded version of the above letter, downloadable now into your computer in PDF form, is available for $9.  Text and our Form EX0706 Request to Expert in downloadable PDF.

Federal Rules of Civil Procedure

Our editor and the editor of the renowned Daubert Report both agree: you should seek a pre-trial order setting limits when motions to disqualify expert testimony should be made, to prevent being blindsided at trial. Available: a form pre-trial order to prevent unexpected disastrous Daubert-style trial motions regarding your expert's testimony. #EX0303 Daubert Pre-trial Order

Rule 16 [excerpt].

* * * *  At any pretrial conference, the court may consider and take appropriate action on the following matters:

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).

* * * *

 (A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.

(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision.