Seven Tips for Better Litigation Consulting Reports

By Shari Helaine Lichtman

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Use precise terminology consistently. Do not use terms generically. Do not deviate from generally accepted definitions. Otherwise, certain readers may be easily confused about the meaning of key terms. A deposition should not be required to explain how a personal use of terminology differs from accepted definitions.

If a specific term is referred to several times throughout a report, adopt a “defined term.” The first time the word is used, define the term as precisely as possible, and then use quotes or capitalization throughout to indicate this nomenclature.

Consistently use the nomenclature given to calculated items. For example, if an exhibit uses the term “total operating expenses,” use that same terminology throughout the report. Inconsistent use of terms in a report and on supporting schedules can easily confuse the reader.

Use simple, clear sentences. Keep sentences as simple as possible. Gratuitous “big words” hinder effective writing. Eliminate the clutter of legalese like “aforementioned,” “hereinafter,” and similar words.

Use active verbs. Accountants and others often write sentences in the passive voice, where the subject is not performing the action. Overuse of the passive voice makes the writing dull and difficult to follow. Try to use as many vigorous and active verbs as possible. On the other hand, sometimes use of the passive voice is unavoidable where the individual responsible for a certain action is subject to dispute.

Properly use authoritative research and treatises. Make sure to understand thoroughly any sources which are cited, and have the research done completely. Although these points seem obvious, in the fast pace of litigation report preparation, even the most elementary steps can be overlooked. Individuals should never underestimate their adversaries’ ability to find their sources, identify similar sources, and dispute their conclusions.

Use the most up-to-date versions of texts. Similarly, check for any recent articles or updates by authors of standard treatises, to ensure that their positions have not changed. Internet research is an excellent and widely available tool. If you don’t check the most recent sources, expect that your adversary will.

No matter how pressed for time you may be, do not cite authorities that haven’t been read thoroughly, or cite authorities out of context. Understand the authority’s step-by-step rationale, focusing on why the source is relevant and applicable. Don’t rely on another’s description of what a source says.

Don’t ignore legal research on applicable standards. If there has been a legal decision about the topic at issue, expect the litigator to provide an explanation. Sometimes, however, a consultant may not receive a clear explanation of the law, for one of the following reasons:

• If the litigator does not have a clear understanding of the nuances of technical terminology in cited cases.
• If the litigants in prior, cited cases failed to clearly present the accounting or finance issues, or if the judge misunderstood such issues when drafting an opinion, the precedent itself may be unclear.
• If a consultant is called to testify as an expert witness, the litigator may be hesitant to provide a detailed analysis of the law because of privilege concerns.

Any litigation consultant must have the ability to do basic legal research. Basic courses may be available through local universities, paralegal schools, or online research companies (e.g., Westlaw and Lexis).

Don’t save writing the report for the last minute. Certain portions of a report can be started well before the conclusion of data analysis, such as the report introduction and parameters. After considering the issues of privilege and work product, it may be beneficial to draft large portions of a report, such as descriptions of procedures and assumptions, as information is gathered. Some consultants note key language and information from documents as they are analyzed to be readily cited or quoted. Capturing such information on a word processor will save time and effort when trying to later recollect several months’ or even years’ worth of work.

Edit, edit, edit. Reading through a draft report several times and making corrections results in increasingly better language. Of course, drafts may be subject to discovery, and it’s a good idea to consult counsel regarding the handling and retention of draft reports, particularly when testifying as an expert witness. It may be risky for counsel to edit a testifying expert’s draft report, because of privilege considerations. In this instance, however, the goal is not to change the substance of a report, only to make the conclusions clearer, more readable, and therefore stronger. As a practical matter, nonsubstantive grammatical changes are likely to be of minimal interest to opposing counsel.

Some final considerations.

• Spellcheck all documents, including spreadsheets and exhibits.
• Keep a basic grammar book handy. An excellent resource is Strunk and White’s The Elements of Style.
• Most word processing programs have a built-in thesaurus; use it frequently.
• If necessary, take an adult education course on legal or business writing.
• Hire a freelance editor if necessary. It will prove beneficial to have an experienced set of eyes review the work before clients, adversaries, and the judge do so.