In recent years, the use of single expert reports has increased exponentially in the family law field. More often than not, the parties either will be looking to the single expert report to support a key factor of their case, or will be looking to how to undermine such a report if the opinions or conclusions expressed in the report cause them some real problems.
So, it’s important to know what a report needs to contain to be accepted by the court, or the areas where a report might be susceptible to attack. The law in relation to admissibility of expert reports has been developed by the courts over the last 30 odd years and the key features that have to be present in a report for it to be admitted into evidence as an expert are now quite clear.
Expertise
It might seem obvious, but the first area that needs to be addressed in a single expert report is the subject of the author’s expertise. The report writer needs to be able to demonstrate expertise both by training and experience. Sometimes membership of a particular professional group will be a good indication of expertise as well. It is very usual to see expertise set out in a Curriculum Vitae that is attached to the report. But if the writer has some particular experience that is linked to the area the subject of the expert report, it doesn’t hurt to say so in the body of the report.
The Facts
It is important for the expert to set out the particular question or issue he or she has been asked to express an opinion about. Then, it is important for the expert to set out the facts that he or she has been given, or has observed, or has assumed and on which he or she has relied in forming their opinion.
For example, if the expert report is a valuation of a property, the expert should give relevant facts such as the size of the land, its location by reference to significant landmarks (if any), the availability of services for the property as well as any unique features that the property may have. Most such valuation reports then contain details of several comparable sales, including a short description of each particular property and a statement about whether that property is considered superior or inferior to the subject property.
If the report is the valuation of a business, the expert will be having regard to the profit & loss statements and the balance sheets for the last few years and perhaps some reference to known business competitors and how that might impact on future profitability. If there has been a key employee of the company whose reputation has led to a flow of work to the company, and that employee is going to be retiring in the near future, that is something that would be worth mentioning in the factual background part of the report.
Sometimes there are other factors that don’t exist now but will in the near future. For example, a property might front a particular section of roadway, and it is known that in the next couple of years, that roadway will be improved, or enlarged – there should be some comment in the expert report about the impact that is likely to have on the subject property.
The other main area of family law where expert reports are frequently used is in the area of parenting proceedings. Once again, the report writer will need to show significant expertise in the area of family relationships, the assessment of parenting skills and the needs of children as they grow and develop.
Applying the Expertise to the Facts
This is the area of greatest controversy about whether a valuation report should be accepted or not. It is fairly straightforward in a property valuation report – the reporter would pick out the closest comparable sales, have something more to say about why the subject property is considered superior or inferior and then state what he or she considers the market value of the property to be.
In business valuations, the reporter would usually need to have something to say about why they consider a particular valuation methodology to be most appropriate. If there are variable multipliers for a particular formula being used, the expert would need to say something about why he or she considers a particular multiple should be used. The report would then go on to apply the formula or valuation methodology to the facts that have been adopted, to produce a result.
The greater the number of variables that are being applied to the facts to produce the result that becomes the expert’s opinion, the more there needs to be explanation of the particular value that has been applied to each variable.
Sometimes there are two methods to be applied to a set of facts to produce a result. If the two methods produce similar results, then the report writer can say that the results are similar and then select his or her preferred result and give some short explanation of his or her preference. If the two methods produce widely different results, the report writer should be in a position to say which result should be disregarded and give an explanation for why that should happen.
In parenting cases, there is quite a different and often subtle process of applying the skills of the expert to the facts that have been gathered from reading the parties’ court documents, interviewing the parties and the children and observing interactions between the children and the parents. When expressing opinions, the expert reports will very often make clear that the recommendation depends on what evidence is given and what the court finds about various factual disputes.
The Opinion
Often the opinion will be clear from the preceding section. It still doesn’t hurt to add a paragraph that says:-
“In my opinion, having regard to the matters set out above, the value of X is $Y”.
At other times, there may be other factors that impact on the asset’s value to the particular owner, such as loans one way or the other. These need to be factored in or out, so that the opinion is expressed as the value to an outside investor or purchaser.
In parenting cases, the opinion will often be expressed as “subject to” the court’s findings about various factual issues. However, there are cases where the facts are so clear cut that the expert is able to make a clear recommendation, for example, about who the children should live with or the amount of time that they should spend with a non-resident parent.
All in all, if the reporter has the appropriate expertise, has made a clear statement about his or her expertise and experience, has clearly set out the opinion he or she has been asked to give, has listed all the appropriate facts that have been taken into account in arriving at the opinion and has given a clear explanation of applying his or her expertise to the facts that have been listed, the resulting report should be treated as admissible in evidence and the statement of an opinion on the subject issue that will need to be given weight by the parties and the court.
Written by
Stephen Rugendyke
Special Counsel
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