Expert Article Library

Expert Witness Record Requirements

By James O. Harris   Email:

Anyone that testifies as an expert witness is required to provide certain information regarding their qualifications. This information will be provided to opposing counsel as part of the required witness disclosures. A typical resume, or curriculum vitae, includes training, education and experience. There are fairly new procedural rules in the laws that require experts to provide information beyond that normally included in a resume.

Rule 26, Federal Rules of Civil Procedure, requires an expert witness to provide a written report which includes all opinions, the basis for the opinions and the information that was considered in coming to the opinions. The report must include exhibits, such as photographs or diagrams, that will be used. Along with the basic qualifications of the witness, education, training and experience, a listing of all publications authored by the witness for the preceding ten years must be provided.

The rule does not differentiate between material that may or may not be germane to the case at hand; all published material for the preceding ten years must be listed. Copies of the publications or articles do not need to be attached, just a list which includes the title, publisher and date of publication. If an article is published more than once, only one needs to be listed as long as the other publications of the same article are substantially the same allowing for editorial revisions.

The written report must include the amount paid for the expert’s efforts for the matter and a listing of all other cases in which the individual has testified, in trial and deposition as an expert, for the preceding four years. This does not include cases where the individual acted as a consultant and did not provide expert testimony; it is only those cases where the expert has testified.

This sounds contrary to that which is taught to police officers, traffic homicide investigators and accident reconstructionists. The work of the accident investigator is preliminary to the analysis performed by the jury. The jury is bound to consider the evidence and will consider the quality and completeness of the analyst's presentation in coming to a conclusion. Put another way, the juror is not constrained to the same principles of factual analysis as is the investigator.

While the requirements for information on the list are not specific, it can be assumed the intent is that sufficient information be provided to allow the trial or deposition transcript to be obtained. This would include the style of the case, jurisdiction, date and court case file number. There are no requirements that the opinions be included.

A number of states echo the federal rules in their respective civil and criminal procedures. Generally, state courts will follow the federal rules if the issue is not specifically addressed locally. Some states require listings that cover periods greater than those in Rule 26.

As the rules can change, with little or no notice, a current and continuously updated list should be maintained of trial and deposition appearances and publications authored. Failing to provide the information required by the disclosure rules could result in the individual not being allowed to testify.

[Editor's note: Text of Federal Rule omitted]