Despite the importance of expert witness testimony, few attorneys take the time to properly research an expert witness’ background. The results in court can be catastrophic.
Proper research of an expert witness is necessary to prevent catastrophic surprises at trial. With the standard that parties should know the truthfulness of their expert’s qualifications, it is incumbent on the retaining attorney to properly vet their expert witness. Fabrications are not unusual. In a survey conducted by Avert Inc., 44% of 2.6 million resumes they checked for background accuracy reportedly contained at least some lies: 44% of applicants lied about their work histories, 41% lied about their education, and 23% falsified credentials or licenses.
No attorney wants to be surprised that their expert has misrepresented his or her credentials. Such a misstep can turn a winning verdict into a loss. This was demonstrated in In re Vioxx Products Liability Litigation 489 F.Supp2d 587, 591-92 (E.D. La. 2007). There, a federal judge threw out a victory by Merck in one of the Vioxx cases filed against it. The reason? Merck’s primary expert witness had stated at trial that he was board-certified in internal medicine and cardiovascular disease when, in fact, both certifications had lapsed.
Based on such cases as the Vioxx, care must be taken by the retaining attorney to ensure the expert’s credential represented on their curriculum vita are accurate. One should not assume that expert’s representations, including their educational background, employment history, list of publications, teaching experience, association memberships, degrees and credentials, are accurately stated.
On the other side, finding damaging information about the opposing expert can lead to getting that expert excluded. And expert exclusions are on the rise. Since the landmark decision of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which set the standard for the way expert testimony is admitted, the number of Daubert challenges has risen consistently. According to a PricewaterhouseCooper study, the number of Daubert challenges increased 250% from 2000 to 2010. This study also concluded that there was a 49% success rate of Daubert challenges to expert witnesses of all types, either in whole or part.
There are many strategic reasons why Daubert challenges have increased. In addition to the possibility of excluding the expert or limiting their testimony, Daubert motions can provide a crucial insight into the other side’s case, expose weaknesses in the opponent’s theory, and lock in the testimony of the opposing expert. As such, having knowledge of previous expert challenges can assist in the preparation of a Daubert motion to exclude an expert. Such cases can reveal theories, arguments, and documents that could be used to win such a motion.
Beyond Daubert challenges, a wise attorney realizes that discrediting the opposing expert can make the difference in winning or losing a case. Researching every case in which the opposing expert has testified can lead to the discovery of inconsistent testimony that can harm their credibility. This includes researching reported cases, unreported cases, jury verdicts, and agency opinions.
Reviewing the expert’s testimonial history might also reveal an expert’s bias. If an expert has regularly testified for the same attorney, or solely for the plaintiff, or solely for the defense, then opposing counsel can use this information to show they are predisposed to testify a certain way.
A review of public records might reveal an expert’s employment history, intellectual property, personal information, and criminal history. Even if such information may not be admissible at trial, an attorney could use such information to shake up an expert. One could imagine how startling it would be for an expert to have to answer questions about their personal bankruptcy in the middle of a deposition.
New articles can be used to undermine an expert’s credibility. For example, a Colorado newspaper quoted a handwriting expert who said that he was 99.9% certain that John Mark Karr wrote the ransom note found in connection with the JonBenet Ramsey murder. The expert was so certain, that he stated “he was staking a large part of his reputation on his judgment that Karr wrote the ransom note.” Rocky Mountain News, August 23, 2006. It was shown that John Mark Karr did not in fact write the ransom note.
Social networking websites have created fertile ground to learn more about an expert witness. An attorney should review an expert’s message board posts, Facebook or LinkedIn pages, Twitter posts, and blogs . As posts on these sites are often informal and quickly written, statements on these sites could lead to impeachment, or at the very least, prove embarrassing to the expert.
In researching experts, there is a danger to just relying on canned commercial subscription databases, or simply running a Google search. As stated by Virginia Lawyers’ Weekly: “While doing online research, be aware that not everything on the Web is searchable through Google or any other search engine. In fact, research suggests that Google only taps about 1 percent of what is actually out there on the Web.” Google misses pages located in some databases, real time documents, and firewall/password protected pages.
Expert Witness Profiler (EWP) ( http://expertwitnessprofiler.com/consolidated-consultants ) has developed the most comprehensive expert witness profile available on the market. The Profile report details the expert’s litigation history, disciplinary history, prior expert witness testimony, expert challenges, licensing history, professional and educational background, and much more. The Profile includes information on how to access available depositions, motions, briefs, articles, and other documents referencing that expert. Each Profile is averaging over 50 pages in length, and involves a minimum of 25 hours of research by attorneys and professional legal researchers who leverage databases that are not readily available to the public.
The primary goal of the Expert Witness Profile is to save legal professionals time and money, and to deliver a deeper, broader and timelier result than if the legal professional attempted to acquire information about an expert on their own.
There is a trend for attorneys to research expert witnesses, and for good reason. With so much information available about experts, the courts are ruling that such research is necessary. With such resources as the Expert Witness Profiler, it is practically malpractice not to have a thorough understanding of the expert an attorney is going to retain, or oppose.
Written by: Jim Robinson