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When Attorneys Ghostwrite Experts' Reports

By Michael Hoenig

How much attorney involvement in the drafting of experts' reports is permissible? Must the entire work product be that of the expert? Or, at the other extreme, would it be acceptable for an attorney to draft the entire expert's report with the expert “adopting” it? And, if at least some lawyer input is tolerable, then what is the boundary line between permission and perdition?

These questions are perhaps better targeted at practice in federal courts where Federal Rule of Civil Procedure 26(a)(2)(B) calls for disclosure of experts retained or specially employed to provide expert testimony and which “must be accompanied by a written report prepared and signed by the witness.” The words “prepared and signed by the witness” arguably could signal that an expert's report which was primarily ghost-written by a litigant's attorney is taboo. Were the report to be so tainted, the disclosure required by Rule 26(a)(2) might fail and the expert could be barred. Or so the argument could go.

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