The Lawyer’s edit of an expert report - Is it ever acceptable for a lawyer to suggest an expert changes their report?

One of the most important tools for an expert witness is your integrity.  So when the lawyer who briefed you asks you to make changes to your expert report, you might experience that uncomfortable feeling in the pit of your stomach - that sensation that usually signifies “warning bells”!   

Definitely not …or it depends!

So how should you respond?  Should you make changes to your report?   I have asked this question to the hundreds of students in my expert witness courses.   Most respond with a “hard no!”, followed up with variations of “my duty is to the court”  … “I’m independent'' … “I don't want to be accused of being manipulated by the lawyer” … “it will be an attack on my integrity”. 

These expert witness students are surprised that, like many things in law, it is not so black and white.  The correct answer to the question, like many legal questions, is “it depends…!” 

What is the lawyer asking you to change? If they are asking you to change your opinion, simply because it is unhelpful to their client and they want you to say something you do not believe is correct, then the alarm bells should be tolling loudly.   However, a request for amendment is rarely ever so blatant.   

Requests for an amendments may be legitimate but also may save some embarrassment

There are many reasons why an expert might be asked to change their report or deliver an addendum or supplementary report.   Most requests are likely to be legitimate and may even save you from embarrassment.    

You may be asking to amend the report so that it is addressed differently.  For example, an expert used to giving evidence in Victoria may not have addressed a report in a Queensland matter to the relevant court (as these reports must be addressed to the court and not to the law firm). 

Similarly, the expert’s declaration may not be the correct declaration for the court hearing the matter. Therefore, a lawyer may request a further report with the correct declaration.   If the report is missing the expert’s CV or overview of their relevant training, study or experience, an amended report could be requested by the lawyer.   

The complex request for big changes

Sometimes, the request is more complex, particularly when there is a concern that the expert may have misinterpreted the evidence or overlooked the importance of some facts.   I have been in this situation.   It was entirely appropriate for me to go back to an expert and point out that the opinion (that the injured worker did not need any domestic care and assistance following the injury) was at odds with the statement of the wife that she brought him meals, helped him change and changed his bed pan whilst he was recovering from a fractured pelvis.    What followed was a supplementary report confirming that stated level of care was appropriate.      

The lawyer may really be doing the expert a favour by suggesting changes!

Whilst lawyers cannot craft an expert’s opinion, we are more familiar with the court’s expectation of the requirements of an expert report.  Lawyers know how reports can be subjected to attack by the opponent.  Lawyers have seen or read decisions where there are embarrassing criticisms given by the court.  If the expert’s report does not meet the expectations of the court, or properly fulfil the function expected of someone stepping into the role of an expert witness, then the lawyer should be taking steps to assist the expert.  This does not mean the lawyer rewrites the expert’s report, but the lawyer should be making sure that the report satisfies the rules of expert evidence, contains the necessary information, properly explains the reasoning adopted by the expert and complies with the rules.  Probably, most importantly, the lawyer should seek to encourage the expert to deliver a report that is helpful to the court and easy to understand.      

The importance of this intervention can be seen in the apparent frustration experienced by Justice Dalton in Landel Pty Ltd & Anor v Insurance Australia Limited [2021] QSC 247: 

“... while lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material.”

In that case, an expert witness’s reports were described as “prolix and disorganised”.    Dalton J stated that:

[20] There ought to have been conferences between [the expert] and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this I would expect that attention to have come from both the solicitors and counsel briefed in the matter. 

[21] Any disciplined and structured conferences with [the expert] would have revealed that there were faults in his opinions which went beyond matters of expression and presentation. They would have revealed significant contradictions, errors and gaps in reasoning in his reports. It is permissible for matters of substance like this to be drawn to an expert’s attention in conference with lawyers, and remedied if the expert is able and willing to do so. Again, coaching is not permitted, and drafts will be disclosable.” 

 This type of collaboration is important to assist the court to understand the 

technical or scientific issues that were the subject of the expert opinion (which is the ultimate purpose of expert evidence).   However, it also fulfils an important part of the efficient functioning of our judicial system.   It does this, by helping the parties to a dispute to properly understand the strengths and weaknesses of their case.  If this is done effectively, then the parties are better placed to assess whether the court’s resources (and the court’s time) are truly required to resolve the dispute.  An earlier resolution also has the benefit of reducing cost, time and uncertainty associated with ongoing litigation.     Dalton J highlighted the importance of this in Her Honour's decision:

[22] The course of this proceeding shows the importance of attention to the reports of experts by the lawyers running the case, not just to achieve a comprehensible and rational expert opinion for use at the trial, but to evaluate the strength of the case sought to be advanced by the litigant. In this case, had early attention been paid to what reasoned opinion [the expert] could give, the plaintiffs’ lawyers would have understood the weaknesses in their expert case at a stage of the litigation when there might still have been alternatives open to them. Instead, it appears that the only effort the plaintiffs’ lawyers made to come to terms with [the expert’s] opinions was immediately prior to trial, by which time any such avenues were very limited. 

Don’t be shocked or insulted or too wary … it might be a good thing!

To sum it all up, even though, at first blush it may appear like an ethical conundrum, you ought not be shocked, offended or unnecessarily concerned if a lawyer approaches you to suggest amendments to your expert report.  First, find out more about what their concerns are and then consult your ethical compass.   If their concerns help you deliver a more helpful report that improves your compliance with the court rules and better shields your report from attack, then collaboration may be the best route to take.