Tips for Better Litigation Consulting Reports
Shari Helaine Lichtman
2006 - Good communication skills are critical for litigation
consultants. The litigation process demands clear and concise
communication. In litigation, process is paramount. Consultants’
reports serve as roadmaps of process to their clients, adversaries,
and neutral third-parties, such as judges and juries. The
litigator and expert’s job is to make things clear.
The following are some simple tips to prepare clearer, more
effective litigation consulting reports.
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.
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
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.
simple, clear sentences. Keep sentences as
simple as possible. Gratuitous “big words” hinder
effective writing. Eliminate the clutter of legalese like
and similar words.
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.
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.
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.
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.
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.
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.
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.
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).
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. 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
Spellcheck all documents, including spreadsheets and exhibits.
a basic grammar book handy. An excellent resource is Strunk
and White’s The Elements of Style.
word processing programs have a built-in thesaurus; use
If necessary, take an adult education course on legal
or business writing.
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.
Helaine Lichtman, CPA, is a consulting attorney in
New York. She helps attorneys understand, apply, and communicate
accounting-related information in complex litigation, focusing
on securities fraud.