Page 22 - Expert Witness

the requested engagement. The practitioner may identify additional evidence, including electronically
stored information (ESI), fn 10 and witness statements needed from the disputing parties; the acquisition
and delivery of this information may require significant time, cost, and effort. In these circumstances,
the practitioner should carefully consider his or her workload, together with the expected scope and tim-
ing of the litigation support work, before accepting an engagement. In certain cases, it may be possible
to work with the client’s attorney to request and secure from the court an extension of scheduled dead-
lines to address this issue.

Engagement Letter

It is important to emphasize to the practitioner the importance of defining the client and adequately doc-
umenting the understanding with the client. Significant changes, modifications, and amendments to the
engagement letter should be approved and documented, or alternatively, a new or supplemental en-
gagement letter should be prepared and signed. Cases exist in which the court or a judge is required to
approve the retention of the practitioner (for example, a court-appointed expert [see Rule 706 in appen-
dix E] or in bail matters). In such cases, the court or judge may not agree to execute an engagement let-
ter. In these situations, the practitioner should obtain a properly executed court order or approval with
language satisfactory to the practitioner prior to initiating any service. It may be appropriate for the prac-
titioner to engage his or her own attorney to ensure that the rights of the practitioner are properly pro-
tected.

The Role

Serving as an expert witness, the practitioner is required to adhere to the reporting requirements of the
dispute forum and may consider the preferences of the trier of fact. Under Rule 26 of the Federal Rules
of Civil Procedure, in addition to disclosure of the expert witness’s qualifications, publications, testimo-
ny, and compensation, the expert report must contain several other items. The expert witness also must
report a complete statement of the opinions he or she will express and the basis and reasons for them, the
data of other information considered by him or her in forming such opinions, and any exhibits that will
be used to summarize or support his or her opinions. fn 11

Assistance With Case Strategy

The client and the client’s attorney are advocates for their position, and their advocacy influences how
they present the facts of a case. One of the principal services a practitioner offers is an objective profes-
sional review of the facts. In addition, if the attorney is unfamiliar with the business, the practitioner can
help by explaining the business facts relevant to the legal theories of the case. The practitioner can sug-
gest several different ways to prove facts or make points, but the final decisions should be made by the
attorney and the client.

Required Expert Report Disclosures

In accordance with these requirements, following is a list of the contents of an expert report under Rule
26(a)(2)(B) of the Federal Rules of Civil Procedure:

fn 10 Appendix A, "Glossary," provides the practitioner with some basic computer terminology.

fn 11 See appendix E, "Excerpts of the Federal Rules of Civil Procedure and the Federal Rules of Evidence."

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