By Charles A. Pilcher MD FACEP
July, 2014
As an expert witness, I am occasionally asked to write a report, affidavit or declaration for an attorney client. When I do so, must my initial draft be the only and final say on the matter? May my attorney client accept it as a “draft” and suggest edits of any sort?
Apparently in Canada, attorneys cannot suggest edits or modifications or clarifications of the initial reports of their experts in any way . That is being challenged, however, by a group of plaintiff lawyers.
Here’s my thoughts on that:
After being approached about a case and reviewing the records, I contact my attorney client by phone and discuss my findings. When the client is a plaintiff attorney and the findings indicate a non-viable case because no violation of the standard of care has occurred – or causation cannot be ascertained – the attorney is so informed, and the case is either dropped or another expert opinion is sought. When the client is a defense attorney and the findings indicate a breach of the standard of care and causation, a second opinion or an early settlement might be an appropriate result. However, when a plaintiff case is viable, or a defense case shows no violation of the standard of care, a written report is often the next step.
When I produce such reports, I do not claim infallibility. I may fail to include a finding key to the case. I may include a finding that could be interpreted in a way that I did not intend. Sometimes my report may contain something that is not acceptable for some reason of law with which I am unfamiliar. My report may even have a misleading typographical error.
While I do my best to make my initial reports complete, correct, and honest, I always offer them to my attorney clients as a “draft,” and expect feedback. That does not imply that I would in any way change my opinion, but I do want my work to be correct (both medically and legally), complete, and honest.
After doing such reports for 35 years and discussing them with attorney clients on both sides of cases, I have never been led to believe that such discussions before producing a “final” report are inappropriate. Yes, opposing counsel may, and does sometimes, ask if the work and the opinions expressed therein are my own, and the answer is always a definite “Yes.” I cannot be persuaded to write an opinion in which I do not believe, since such chicanery will always be exposed. But I do strive to do a good job for all clients, defense or plaintiff.
In Canada, however, attorneys are apparently prohibited from discussing such “draft” reports with their experts. The first draft is to be the final draft, no matter what.
A group of plaintiff lawyers wants that rule modified. I assume that their reasons are the same as mine: to produce good work that is helpful to the court in coming to a just conclusion.
Opposition to the change, likely coming from the defense perspective, apparently believes that input from a plaintiff attorney regarding a draft report could persuade an expert to say things in which that expert does not believe. If that were possible, the change would apply equally well to defense experts, so I fail to see the problem.
I enjoy the collaborative approach and find that working together on a report allows me to identify errors, include information that I might have omitted, and sometimes even explain to an attorney why I cannot support a position that he/she might want me to take.
The same holds true in depositions, where one of the most difficult questions to answer comes near the end, when the deposing attorney will often ask “Is that the extent of your opinions in this matter?” Given that he or she has been the one asking the questions, and he or she might not have asked all pertinent questions, I must reserve the right to modify my testimony if asked additional questions, or if new information arises about which I am asked before the matter is settled.
The legal system in the United States is only as good as the integrity of those participating in it. That was the major factor that motivated me to become involved as an expert witness over 3 decades ago. Since then I have met many caring and competent attorneys on both sides of the courtroom during my career. I enjoy doing work for both sides – and that includes writing reports, declarations and affidavits. Working together seems to improve the system for both plaintiff and defense. Thus, I believe that greater collaboration on the part of all parties and a modification of the current restrictive practice in Canada is reasonable.
Like the title of Robert Fulghum’s book says, “All I Really Need to Know I Learned in Kindergarten.” To me that means to be nice, be honest, be helpful, play well with others (and I think there was something in there about naps.) So if the first draft of my report must be the last draft of my report, I believe we all suffer.
I hope the Canadians get it right.