Peer Review:Proofing and Editing an Expert Report

Presented by

Gerald R. Genge, P.Eng., C.Eng., BDS, BSSO, C.Arb. Q.Med.Principal – Arbitech ADR

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ArbiTECHWho’s that?ArbiTECH ADR provides the following services:1. Expert witness, 2. Arbitration, 3. Project Mediation (CCDC), 4. Expert Hot Tub Meeting Facilitation

… on construction-related disputes anywhere in Canada.

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This presentation makes liberal use of clipart available from Microsoft products displaying a Creative Commons License. The author makes no representation that the pasted graphics are his own. Sources of the original graphic are generally unknown; but, nonetheless, the author has great appreciation for the creative minds of the talented persons who generated the clips and wishes to express his gratitude for making the clips available to those of us that are less entertaining than they.

LEGAL NOTICE

Peer Review:Proofing and Editing an Expert Report

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or…How to Use Ethical Influence so your Opinion Makes a Difference

Take aways…1. Ethical Influence

What is it and how it can be applied so your Expert Opinion makes a difference…

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2. Six Soft Spots in Expert ReportsWhat they are and how fixing those will make you an Expert Writer.

The Expert Opinion

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Opinions can be written or oral or both. But, most often the opinions are written so they can be disclosed (in Canada anyway)… Need to know what kind of “Expert” you are to be?1. Reporting Events – (Fact Witness)2. Direct Opinion – (Opinion on

Evidence in the Matter)3. General Opinion – (Opinion on

- Applicable “Rules”, - State of the Art, - Applicable Theory

We’re going to discuss “Direct Opinion Evidence in the Matter…” 6

Why “Ethical Influence”?The opinion evidence “exception” allows an expert to give reasons why evidence should be interpreted one way or another. This is not to be confused with “Bias” which involves prejudiced opinion.But to make best use of your privileged status as “experts”, it is essential that the expert opinion report be presented in a way that replaces a trier of fact’s “indecision” or “bias” with “a reasoned judgement”.

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Why do you need to “Influence”?For your report to be the preferred opinion and overcome indecision and bias, your report be written so that the reader….. what ?… so that your reader comes to the same conclusion or opinion before they read it.Their only response should be “Yes!”

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A possible definition of “Ethical Influence”?

“Ethical influence is the result of careful and appropriate presentation of the evidence, supporting framework, and resultant opinion, so that it is the preferred choice over bias and indecision”.

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How do you Achieve “Ethical Influence”?You have been selected as a credible “expert” because…1. You have the right credentials,2. You have the necessary experience,3. You know the counsel and his/her

expectations,4. You have a court-friendly presence

(a chewy topic in itself)5. You can write.Once you can do all that…you can apply ..“ethical influence” and be a “credible” expert.ArbiTECH

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Your reports are the work product that showcases “Credibility”?

You have a reputation as a credible “expert” because your reports are:1. Comprehensive - you don’t skip over

issues that matter.2. Coherent – you write right and follow a

logical process.3. Defensible – you have your evidence and

sources well documented and credible in themselves.

Then, you are ….…Sorry but I just have to do this… ArbiTECH

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Wait for it…….

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Six Soft Spots in Expert Reports

1. Who Hired You and Why?2. Basic Grammar Spelling and

Structure3. Credible Story

4. Possibility of Amendment

5. Core Points

6. “Gut-Check” testArbiTECH

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Common Mistakes• You started out with the conclusion in

mind and rushed to state it.• You included “assumed facts” as

“provided facts”.• Your discussion points are not relevant

or not tied to the matter. Any of these approaches will give a lawyer cross-examination material that will kick you to the curb.

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Six Soft Spots

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1. You Didn’t Explain Your Retainer

• Make sure you understand and restate the “question(s) being asked of you.

• Discuss the “question(s)” with counsel to ensure they are correctly phrased and thatyou can answer them.

• You aren’t being asked to state everything you know about a subject. Just answer the question.

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2. You Didn’t Check Grammar, Spelling, and Structure• Units, abbreviations, etc. • Referenced and explained.• Use active voice to make

clear statements.• Use present tense to report

observations.• Use first person unless you’re

collaborating.• Use standard “scientific method”

report format where possible.• Footnote to source info you rely on.ArbiTECH

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3. Your Report Doesn’t Tell a Credible Story• Don’t draw comparisons

to other cases.• Don’t use superlatives.• Don’t declare

“acceptability” unless you have precise criteria.

• Don’t become an advocate for your “cause”.

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But you must believe me. I’m me!

Your story doesn’t stand up

4. You can not change your opinion• Don’t assume that you have

all the information and so your opinion is infallible.

• State the “provided facts” as counsel has provided them.

• State your “assumed facts” and why those are reasonable.

• If the report is for mediation, say so.• Use a purpose-made qualification

statement (as opposed to a boiler plate disclaimer).

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No, but that changes everything

Have you seen this?

5. You have not reinforced your core points

• Don’t bury your main point in a list of main other points. If it is important to the opinion, say so.

• Make sure the reader understands that, even if one or two minor points are challenged and fall away, the main idea survives.

• Executive Summary – pros and cons.

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6. Your Report Doesn’t Pass the “Gut-Check” Test

• If possible, don’t send your report out immediately after writing. Let yourmemory fade a bit then re-read. …or better still….

• Have a colleague read it and give it the “gut-check” test.

• Does it still stand up? • If there is any doubt, recheck your

evidence, assumptions, analysis, and opinions to assure yourself that the reader can adopt the same view without question. ArbiTECH

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Summary Remember, your job as an expert is

to replace bias and indecision with informed opinion to allow a well-reasoned judgement.

Your ethical influence is critical to that process.

To be influential, your report must leave the reader in agreement with your opinion.

You can go a long way to achieving that by making sure that you eliminates the six soft spots in your “Expert Report” ArbiTECH

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Questions and Comments?

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Thank you for your attention….

For more… visithttps://www.linkedin.com/in/arbitechadr/

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