I prepare anywhere between 1 and 4 expert reports on insurance matters each month. Typically, my work involves an issue of policy interpretation, availability of coverage or calculation of the loss (quantum).
A number of people have contacted me of late to ask advice, as they are being asked to prepare a report for the first time.
From the large number of barristers and lawyers I have worked for, I offer the following guidelines. Having said this, it is best to double check the way that the lead barrister on the matter and/or the solicitor wants the report completed.
Numbering of the paragraph and other numbers.
I number each section 1. 2. 3. etc and then number each paragraph beneath the section title. 1.1, 1.2 etc so that the judge, the court officials and myself for that matter, can navigate around the report easily. I refer to appendices as Attachments and number these 1. 2. 3. etc. as I have been criticised in the past for calling them appendices and using letters.
Finally, I always put page numbers on my report and attachments ideally: e.g. Page 3 of 10.
I also allow a lot of white space so that the judge and other court officials can write notes if needed.
It is a simple thing but I always date my report.
I start my report by summarising the instructions, who instructed me and/or questions that I have been asked to address. I then explain that my opinion follows.
Code of Conduct
Before I go any further, I set out the relevant Court (District/Supreme/Federal) Code of Conduct for Experts that I am following. An expert report will be deemed inadmissible without this. The rules under which I am to give evidence are always provided by the instructing lawyer. If I do not get them, I ask for clarification as to what court the matter will be heard in and ask for a copy of their regulations.
The key thing I have to keep in mind is that my duty is to the court and not to the party that instructed me. Sometimes this means that my instructing lawyer hears something that they do not want to but I feel it is always best to be honest. I have never been accused nor do I ever want to be called a “hired gun” who will just take any job for the fee.
As part of my acknowledgement to the Code of Conduct, I set my full name, address and refer to a CV, which I attach to my report as Attachment 1, which details my training, qualifications and experience to demonstrate how my “specialised knowledge” relates to the matter before the court and the ‘discrete area of expertise’ that I have. My CV loosely follows the ‘About Me’ page of this blog. However, I always read through my CV and tailor it to the case setting, including any information about my experience or knowledge that increases my credibility. I will, however, never say anything false in my CV, as I have to be able to defend it should it be attacked. I stress, for example, any book that I have written on the subject, eg Industrial Special Risks or Business Interruption.
Materials Relied Upon
I also include any documentation or other material that I have relied upon to come to my opinion(s) on the question(s) asked of me. Typically, most of this is provided by the instructing solicitor, although I would prefer that they provided the list in Word or some form where I could simply copy and paste it into my report rather than have to retype it or worse still, create it from scratch. This is quite time consuming in some cases.
I usually prepare this as a table or schedule and if it runs to more than 1/2 page, I will attach it as an appendix rather than clog up the whole report. The schedule typically has two columns, although I may add extras if it will help, particularly if the documents have court numbers. Otherwise it is simply a description which describes the document, who authored it and who it was addressed to and the last column is the date of the document, if it is dated.
It is of paramount importance that each document is read thoroughly and understood.
If there is insufficient information for me to reach a conclusion, I will always write to the solicitor and ask for the documents or other material that I need to do the job properly.
Equally important to the documentation is to advise the court of the assumptions I have relied upon in forming my opinion. These are often provided by the instructing party but sometimes, I have to make one or more assumptions based on the information before me. Whatever these are, I set them down in the report. This section may include a background of my understanding of the facts as I know them.
Body of the Report
This typically includes the question asked of me and my answer. I try and explain to the court the reason for my thinking and what I have drawn on to reach my opinion. This may be a text book, a professional code of conduct or the like.
Sometimes, if there is a series of questions that all really address the same issue, I provide an overview, such as the history of the development of an insurance coverage, or the duties of an insurance broker etc.
This means I do not have to keep repeating myself in the answer and I can answer by saying something like: “for the reasons I set out in paragraphs 4.x to 4.y I believe that …..”
Naturally, it is important that I answer the specific questions asked of me in the brief and if I am not able to provide an opinion on a particular question, explain why. I have found that I am not marked down at all if I am honest and admit when a question is outside my area of expertise. This tends to lead to the court accepting that I do know what I am talking about on the items I do address.
I look to use consistent language when commenting on measurements and degrees of certainty. I try and use objective industry or professional terms of standardised language and I do not use abbreviations where I can help it. If an Insured’s name or some other party to the action or name in it is long, I will write it out once in the introduction or where it appears the first time and then put in brackets what I call them during the balance of my report eg EXY Holdings Pty Ltd (“EXY”). If the lawyer writing to me has done this I will use the same abbreviated name as they have to minimise confusion.
I end with a summary of my report, clearly stating my opinion and conclusions. I try and keep this to no more than one page in length.
Depending on the report, I set out the key assumptions, crucial piece(s) of evidence or methodology I have relied upon and or used as to how my conclusion was derived. Should there be some qualification to my opinion I also include this.
If I have referred to a book or other reference material, I will provide a bibliography and/or copies of the pages, particularly if the books/texts are out of print or hard to come by, such as a Tarrif. Having a huge insurance library at my disposal certainly helps me.
Ensure that your CV is updated and relevant to the particular matter in terms of describing your ‘Training, study and experience’ and publications and peer reviewed articles.
As the presentation is so important, a simple mistake could undermine your credibility. As such, I prefer to have my spreadsheet and any other calculations double or even triple checked by my colleagues and have the report proof read for ease of understanding, spelling and grammar. I would rather my colleagues find an error and fix it than the judge or other side.
The trouble I find is that often you are given insufficient time to prepare a report to the standard that I would like. I am guessing but it appears on some cases the lawyers are trying to do things as cheaply as possible and when they find an important deadline is approaching I have to drop everything to meet the deadline. This I find hard sometimes.
I find that most barristers do not like draft copies floating around. I therefore do not prepare draft or email or otherwise submit draft reports.