Rule 26 Report Documenting Qualifications & Exhibits
Read part 5. The final article in this series. Rule 26 Report Documenting Qualifications & Exhibits.
Rule 26 Report Documenting Qualifications & Exhibits
Having the qualification and the exhibits in an organized and easy-to-read format is paramount to a persuasive report. The expert witness must include their qualifications in their report. We provide an example of a Rule 26 Report Documenting Qualifications below. Likewise, having organized exhibits creates a more compelling report, keeps the expert more coordinated, and allows the expert to refer to specific documents quicker and easier during deposition.
The easiest way to incorporate qualifications into a report is attaching a current curriculum vitae (“CV”) as an expert witness must provide professional accomplishments, any certifications, and ongoing education. The CV can include a list of all publications. If it is not included in the CV, then it needs to be a separate list. The law requires a report to have a catalog of all cases testified in within the last four years. A good practice is to list all of the cases from newest to oldest in a table like so:
|Case#||Case Name||Issue||Status||Year-Type of Work||Testimony||Trial||Court||For||Firm|
|103||State Farm v. XYZ Corp.||Agency E&O – failure to procure||Open||2019-Report||Arbitration Nov. 4||U.S. District Court for the Middle District of Florida||Plaintiff||ABC, P.A|
|102||VWX Inc, v. Fidelity||Underwriting Misrepresentation||Closed||2019-Opinion||Depo Dec. 13, 2018||Oct. 2, 2019||U.S. District Court for the Southern District of New York||Defendant||LMN & RST|
The expert’s report (Rule 26 Report Documenting Qualifications & Exhibits) must have a list of all the documents examined that is accurate and has as specific information as possible. Creating a table is the most organized format as seen below. Column labels can include:
- date to establish when the document originated;
- the page number, bates number, or other identifying number (e.g., deposition exhibit);
- handwritten signatures;
- any notary seals and date of notarization; and
- the specified version (e.g., original, copy, faxed, etc.).
|Date||Doc #||Bates #||Pg #||Name||
|Oct 10, 2018||31004||025-0177||44||Fram v. Davie||Y||Y||copy|
Moving to exhibits, the expert should incorporate them into the written report as attachments or appendices for verification and easy reference. In the body of the report, include the source and date of illustrative portions, the percentage the document or image was resized, the prepared date of the exhibit, and the specific case name.
The Importance of Deadlines
Deadlines are critical. Keep them or provide as much notice as possible when requesting an extension with the attorney. Giving an attorney notice may allow time to request an extension with the court. Missing a deadline can exclude the expert’s report, evidence, and testimony destroying a case.
In United States v. Mahaffy, the court excluded an expert from testifying about the “mechanics of trading in the New York Stock exchange” and “the meanings of relevant terms, concepts, and practices within the securities industry” because the defendant submitted the report on the day of trial, and not ten days prior as the court ordered.
In Hassebrock v. Bernhoft, the plaintiffs sued their former attorneys and accountants for professional malpractice. Through a series of delays and rescheduling the court imposed a discovery deadline of May 10, 2014. On April 9th, the plaintiffs requested to disclose the name of their expert without the report; the court did not rule on the motion and the deadline passed. On May 13, 2014 the plaintiffs filed a new motion identifying their expert and asking to give more time for the expert’s report. At a hearing the next day the plaintiffs explained they were relying upon the 90-day prior to the month of trial set forth in Rule 26. The court denied both of their motions. On appeal, the Seventh Circuit Court of Appeals upheld the lower court’s ruling stating that the disclosure deadline in Rule 26 is a default deadline a court’s order on scheduling the deadline supersedes the federal rule.
 No. 05-cr-613 2007 U.S. Dist. LEXIS 30077 (E.D.N.Y. Apr. 24, 2007).
 815 F.3d 334 (7th Cir. 2016).
Proofreading and Editing Your Report
The best practice is to have someone else proofread the report for spelling, grammar, and overall clarity. Proofreading is key to a credible witness report. Errors make a witness seem less credible and hinders persuasion. When proofreading read the report backward sentence by sentence, and go through a checklist such as:
- Subjective language (e.g., thorough, exhaustive);
- Passive voice;
- Spelling errors, especially for words that aren’t necessarily spelled wrong (e.g., statue and statute, on and one, etc.); and
- Missed punctuation.
Conclusion – Rule 26 Report Documenting Qualifications & Exhibits
The disclosure of expert witnesses and the reports they must file has gone through several iterations. The rule in its current form means to expedite the trial process, but also focuses on moving parties towards settlement. The discovery deadlines are vital to monitor, as a report barred by the court also prohibits the expert’s testimony causing a case to perish before it had a chance.
Expert reports should be persuasive, powerful, proofread, and avoid passive voice. The organization of a report is essential and can enhance the persuasiveness as well as the credibility of the expert witness. Always use precise and objective language rather than subjective language. Finally, if the case requires a rebuttal report, be respectful when discrediting the opposing expert’s opinions.
In this series on Rule 26 read Parts 1, 2,3 and 4
Rule 26 Amendments, History, Application Part I
Effects of 2010 Amendment of Rule 26 – Part 2
How to write an Expert Witness Report – Part 3
Precise Expert Witness Reports Powerful and Persuasive Part 4