Expert Opinion

By:

Ralph Ostermueller

CPA, ASA, ABV, CBA, CFE, MAE

A Model Form for an Expert's Report

From our friends at the ACADEMY

OF EXPERTS in London comes a recommended form for an expert's report. The format is quite adaptable, and it has been employed in some US courts, on a limited basis. It can be used for most any expert subject addressed to a court, by an expert of most any discipline.

A Short History

In the UK in 1989, a Judicial Commission of seven judges representing the English, Scottish and Northern Irish Benches was formed. One of the invaluable services the Judicial Commission has since performed has been the preparation of The Model Form of Expert's Report.

A "Judge Friendly" Format

It's purpose is to further assist Experts and their clients by indicating a format that the Judiciary would find of assistance...a "judge friendly" format, so to speak. The Model was not issued as a Standard, per se, but has come to be widely used.

Why a Model Form?

Some senior judges had expressed concern at the length of many experts reports and at the tendency to mix matters of fact and opinion.

The Judicial Committee of the Academy commented that the hallmarks of a good report include:

1. A stand-alone, concise, user-friendly format, expressed in the first person singular by the person whose opinion has been given or who adopts as his own the opinion of others.
2. Text that is arranged in short sentences and paragraphs.
3. Judicious use of appendices.
4. Matters of Fact being kept separate from matters of opinion.
5. Each opinion expressed in the report must be the opinion of the writer whether it was formed by the writer or formed by others and adopted by the writer as his own.

Further, the following must be identified separately and distinguished:

1. Facts which the writer is asked to assume;
2. Facts which the writer observed for himself e.g. the results of experiments, investigations, etc, carried out by the writer himself;
3. Facts which others, acting on behalf of the writer, observed, identifying the persons concerned;
4. Opinions of others upon which the writer relies in forming his own opinion.

The model form of report was developed with these comments in mind and with the aim of assisting both the expert(s) and the instructing party(s) to address the relevant issues in the most direct way. The model is intended as a guideline only. There may be valid reasons for departing from it and/or introducing additional sections.

THE SCHEME OF THE MODEL FORM OF REPORT

The Model Form is written in 5 distinct sections with suggested headings; notes are given.

The Front Sheet - the first visible sheet should contain the items of key-point information indicated by the model and should not be obscured by a cover. The first report prepared for disclosure should be entitled "Report" and not "First Report".

The Contents Page - may be omitted altogether in the case of a short report of say seven pages or less. Section 1 Introduction - deals with all the formal matters and chronology. The text is largely standard. Most of the material is transferred to appendices.

Section 1 - Introduction - deals with all the formal legal matters and the chronology thereof, including the expert's terms of engagement and specific instructions. The text is largely standard. Much of the material can be transferred to appendices.

Section 2 - The Background to the Dispute and the Issues - This section of the report will normally include:

1. A list of the people who will be referred to in the report with a short uncontroversial description of their role.
2. The assumed or given factual background of the case.
3. The issues, set out clearly and numbered, which the expert will address.

No opinion is expressed in this section.

Section 3 - Description of the Technical Investigation or Enquiry - this section is, again, factual only. The description should be given in itemized paragraphs with sub-headings.

Section 4 - The Facts on which the Expert's Opinion is based - distinguish those facts that he was told from those he observed for himself.

Section 5 - The Expert's Conclusions - with opinion and reasons in full on each issue in turn, set out clearly and numbered. In this section, there should only be such repetition of fact as is necessary for the exposition of the opinion.

Signing Block - the report must be signed by the writer and dated at the end of the Conclusions.

Appendices - each Appendix should be provided with a front sheet of the type indicated in the model.

Headers - each continuation page of a section should be provided with a header on the left-hand side showing the number and short title of the section and a header at the right-hand side with the information suggested by the model.

Presentation - the practice is growing of the Court directing that a copy of experts' reports be made available on disc to the judge or official referee. Where practicable, therefore, reports should be typed in double spacing and prepared on, or readily transferable to a recent version of, Word and/or WordPerfect. The report should be presented on paper, of a size and in a format most used by the venue in which the report is being submitted, and capable of being copied readily on a photocopier with automatic feed.

Evaluation of the Expert Witness

The context of the court's use of such a Model report is seen in the following passage taken from the dicta of Stuart-Smith LJ in Loveday v Renton (1190) 1 Med LR 177 at 125. It provides a clear description of the processes that the Court has to undertake to evaluate the Expert witness, the soundness of his opinion and the weight to be attached to it.

"...This involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence.

The Judge also has to decide what weight to attach to a witness's opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts logic of proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence..."

The Next Column: Formal layout and detailed content of the Model Form of Expert's Report from the ACADEMY OF EXPERTS Members Handbook.

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Let me hear from you c/o this newspaper, or directly at experts@ostermueller.com, or at 314-965-5921.

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Ralph E. Ostermueller, CPA, ASA, ABV, CBA, CFE, MAE, is a St. Louis-based Business Valuer & Economic Expert Witness. He is a member and former Chairperson of the MSCPA's Business Valuations and Litigation Services Committee. He is regularly retained in U.S. Federal, State(s), Tax, Probate & Bankruptcy Court-related matters, and has given testimony in economic damages disputes in the Canadian Supreme Courts. For business valuation matters, he serves as external counsel to CPA firms & as an independent arbiter. He is the author of PPC's Companion software to its ASA-authoritative Guide to Business Valuations, and he is the Managing Member of The Ostermueller Group, LLC.