Reference
Primary and Rebuttal Reports
The to and fro of legal battles
By Mark C. Hughes, P.Eng.
© 2005 Sintra Engineering Inc.
Over the years, I have been retained many times by lawyers involved in major losses resulting in civil litigation. Often I have had to prepare primary reports and rebuttal reports in response to other people's expert reports. I have also had my reports rebutted. I thought a review of some of the legal process of preparing reports might provide people with insight into what is expected from this process at least as far as a fire investigation report is concerned.
In Alberta, our court process follows a particular order and the Alberta Rules of Court detail the process for introducing expert reports. These rules also provide the general format of how these reports can be entered as evidence. The main types of expert reports considered are called primary reports and rebuttal reports.
A primary report is one prepared by an expert that reviews as much information as possible without necessarily seeing the report of the other expert. For a fire investigation report, it provides opinions regarding the origin and cause of the fire. The report may also opine on other facets of the fire investigation and is generally submitted to the court 120 days prior to the trial date with a statement from the lawyer introducing the evidence as well as identifying the type of expert and a curriculum vitae (CV) for the expert. A CV is like a resume, except there are no limitations on length and it should be as detailed as possible.
A rebuttal report is a report prepared in response to and to address issues raised in a primary report. Similarly, this includes a statement from the lawyer identifying the field in which the expert is expected to be qualified and a CV. This report should primarily deal with matters raised in the other expert's report and is generally submitted at least 60 days prior to the trial date.
Now, most fire investigators are hands on individuals and groan at the prospect of having to review someone else's report much less to critique the content of their investigation. After all, they may not have attended the scene of the fire and will be relying on secondary information or that collected by the other fire investigator. Many fire investigators feel that the process of reviewing someone's report to critique it is acting more like trying to take sides rather than seeking the truth.
In reality, an effective rebuttal report provides your opinions about what happened with the fire, and identifies areas where you differ from the other fire investigator. One example I recall is when a number of investigators all identified the origin of the fire in one room and that it was caused by an electrical fault. The investigation appeared reasonable and logical, but there was extensive evidence to suggest that the wiring where the fault could have started was not located in the area of origin. The extent of destruction at the time of the investigation, would have made it difficult to identify where this wiring was located. So while most of the report was logical and reasonable, this problem needed to be identified. It didn't necessarily mean the other fire investigators were wrong (there were a lot of people involved), but they needed to address this issue. So this was the gist of the rebuttal report.
The objective of a rebuttal report is to provide an opinion regarding the circumstances of the fire and to present them in an easy to understand form for the judge to review. This usually means that there will be part of the other expert's report that you will agree with and some that you won't. It is really important not to take the role personally either when you rebut someone else's report or when they rebut yours. Taking it personally will always show in your report or the presentation in a trial. This weakness will inevitably be exploited by the other side's lawyer and you lose before you start, regardless of how right you are.
Rebuttal reports are difficult to compose and require a lot of care and attention. They are a sometimes frustrating but absolutely necessary aspect of our adversarial justice system.
Mark Hughes, P. Eng. is a principal with Sintra Engineering, a Forensic Engineering firm.
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