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Expert Witness Report: A Well Documented and Supported Opinion from a Subject Matter Expert
Question: What are the key requirements for preparing an expert witness report for court litigation purposes in Canada?
Answer: An expert witness report must adhere to strict guidelines to ensure admissibility in court. As established in 2599475 Ontario Inc. v 2549445 Ontario Inc., 2023 ONSC 3508, the report should align with the R. v. Mohan, 1994 CanLII 80 (SCC) criteria: relevance, necessity, the absence of exclusionary rules, and a properly qualified expert. Effective communication, impartiality, and a well-organized presentation enhance credibility. For professional assistance in preparing expert reports, Theresa Forrest, Paralegal, offers service across London, Sarnia, Waterloo, St Catharines, and Kitchener. Reach out today at (519) 902-4223.
Understanding the Requirements When Preparing an Expert Witness Report Document for Court Litigation Purposes
Various best practice habits when preparing expert reports can help ensure a well-crafted document that is both effective and efficient for use within the courtroom. Indeed, a quality expert report can be the difference in making or breaking a case; and accordingly, the choice of expert, the style of report, and the manner used when expressing expert opinion, require careful review.
The Law
Admissibility
For a court to admit an expert report as evidence the expert report must meet the criteria of admissibility. The criteria was summarized within the case of 2599475 Ontario Inc. v 2549445 Ontario Inc., 2023 ONSC 3508, where it was said:
[35] The test for the admissibility of expert evidence is based on the criteria set out in R. v. Mohan, 1994 CanLII 80 (SCC), 1994 SCC 80, as follows:
a) Relevance;
b) Necessity in assisting the trier of fact;
c) The absence of any exclusionary rule, apart from the opinion rule itself; and
d) A properly qualified expert.
[36] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court divided the admissibility requirement into two distinct steps. First, a trial judge considers the four Mohan criteria. Then the judge balances the potential risks and benefits of admitting the expert evidence.
Quality Expert Reports
Communicate Clearly and Effectively
Prior to drafting a report, the expert should review the required scope of the report with the representative, being the lawyer or paralegal, who seeks the report. Depending on the nature of the court case, the report may require broad details or may require a narrow focus. In some circumstances, a brief report is adequate; and in other circumstances a more lengthy report is necessary. Forgoing this review can result in the waste of preparing an insufficient report or the waste of preparing an excessive report. Either is a waste of time and therefore money.
It is also necessary that the supporting evidence documents reviewed by the expert are adequately included and properly referenced. The evidence documents can, and should, include pictures, study data, testing results, among other details, all provided as attached appendices or schedules. Additionally, a bibliography to summarize any authoritative documents used for research should be included.
The report should read clearly with ease and appear professional and proofed for proper spelling, grammar, and punctuation. The expert should write in a style directed towards the intended audience, balancing need that the report be understood by an average layperson without belittling highly intelligent judges and lawyers or other experts. Reports should omit or limit industry specific jargon and abbreviations; but, if such is necessary, include definitions within the report.
More Hints
- Use professional letterhead;
- Use a cover page as well as an index or table of contents;
- Use a curriculum vitae or resume to summarize the qualifications and credentials that confirm that the expert is genuinely an expert;
- Use an introduction page to outline when, and from whom, the report was requested;
- Use 12-point font and double spacing;
- Use headings;
- Use short, concise paragraphs;
- Use a unique reference number for each page, table, chart, and appendix;
- Use a definitions page or section to define technical language and industry specific jargon or abbreviations; and
- Use an upfront summary page to outline final conclusions or opinions.
Things to Avoid
An expert report must be impartial and objective. The role of an expert is to provide an unbiased opinion to the court for the purpose of aiding in the truth-seeking mission of the court. The expert must therefore ensure that the expressed opinion is grounded in facts and evidence rather than prepared with a favouring of a litigant.
- Avoid absolute wording and phrasing;
- Avoid words that appear as hedging or guessing;
- Avoid critical commentary regarding credibility of other experts;
- Avoid a scientific and clinical tone by keeping the tone friendly and personable;
- Avoid going into details beyond the purpose of the report;
- Avoid unnecessary adjectives or superlatives.
Summary Comment
The expert preparing an opinion report must remain attentive to the balance required when obtaining input from a legal representative whereas the lawyer or paralegal seeking the report will best understand the factual concerns and legal issues that relate to why the report is needed and can explain the desired scope; however, the findings and opinions as stated within the report must always remain the genuine unslanted view of the expert as author of the report.