May 02, 2018
Experts are required in cases that involve scientific evidence. Civil and criminal cases that involve DNA evidence, engineering evidence, fiber analysis, medical standards, etc. normally involve the use of experts to explain the technical information that is normally beyond the jury or judge’s experience. The courts have placed certain requirements on who can qualify as an expert and whether or not the expert’s testimony will be presented to the trier of fact. As such, counsel will want to select a qualified individual who can meet and exceed standards for expertise.
Given that both sides will be presenting competing expert views on issues raised in the case, it’s paramount that the expert’s credentials can withstand challenge and that his or her testimony will withstand the gatekeeping function performed by the judge under Daubert and its progeny.
Experts live and die by their credibility. Sometimes, however, experts shade their résumés or falsely claim certification, scholarship, professional affiliations, or experience. Discovering misstatements or omissions in any of these categories can result in the disqualification of the expert. If the misstatement is brought out at trial, the results can be devastating to the litigation.
I. Choosing an Expert
Sources of Available Experts - The Internet
The Internet offers a variety of choices for selecting an expert. There are, however, some basic elements to consider when evaluating expert witness service web sites. One is that editorial and business practices vary from site to site. Some sites require a fee for a successful referral. Others charge a subscription or a pay-for-use fee to the expert database. There are numerous sites which maintain databases of experts as one service of the site rather than as its primary business. Many individual expert and consulting services maintain promotional web sites. Understanding the context of how these sites operate will aid tremendously in matching an appropriate expert to the case as well as offering some method of investigation of the expert.
The greatest concern with any information available on the Internet is its veracity. Web sites will have varying editorial practices. There is no guarantee that the information appearing on any given site is either accurate or up-to-date. Better sites offer signals as to source of information and its timeliness. Bad as well as good information is often picked up by sites and repeated without any form of verification. Consider the reputation or notoriety of the web site or source as one factor in evaluating available expert information. One technique is to verify information by cross-referencing it against known reliable sources.
The better of these sites will be searchable by expert name, area of expertise, and location and other access points. The results of a search should include a detailed description of the expert, contact information, and, if possible, a résumé or CV that details trial and/or publication history. HGExperts.com (http://www.hgexperts.com) is a good example of this type of site. The main page acts as a portal to subject areas of expertise with links to relevant entries. Listings include contact information; summary details of expertise; pictures where available; links to a more detailed profile; and links to the expert’s business or web site.
HGExperts has the requisite flexible search capabilities. You may search using keywords that can be limited to specific states or nationally. Search results give the same kind of information as does browsing. It is easy to identify potential expert candidates within the web site. HGExperts offers enough details about an expert to identify his or her area of expertise, but does not evaluate them. Experts pay to list themselves on this particular site.
HGExperts is part of the HG.org web site, which is provided by Hieros Gamos, a worldwide directory of legal services. HG acts as a legal portal to many areas of law with links to many primary domestic and international legal resources. The site maintains a good reputation with web researchers. HGExperts is just one example of the many sites that offer expert listings. It is an example of a better site, not necessarily a model. Other expert sites are listed in Appendix A which follows the body of this handout.
General web search
Google or another search engine can certainly provide links to relevant expert witness sites. A broad search such as “expert witness” will return more than 5.4 million hits. You can distill these results by adding a keyword identifying the specific area of expertise. Still, the results will be in the thousands or more. No one will work through that many results, especially without any objective reference as to the quality of the results or individual experts.
The better strategy would be to search for “expert witness directory” and search for an expert that way. General Google or other search engines are more valuable when searching for a specific expert. As Google and the other search engines rank by relevancy, hits located in the first two or three pages will likely be the most useful. Google will place paid listings at the top of the first list of results. These are specifically marked as “Ads.” That doesn’t mean these sites aren’t useful, just that they paid for the location of their listing.
The best strategy for selecting an expert candidate via the Internet and expert witness portals is to identify specific subject specialists and evaluate them against the combination of education, experience, fees, past litigation history, and other factors such as a client list. Rather than looking through every possible expert, set standards as to what characteristics would be appropriate and winnow the results from there. Again, not every site or result will offer all of this information in the same place.
Note that search engines may not return complete results. Lists are sometimes kept in databases where the content is generated on the fly by initiating a search at that site. This type of content is not generally indexed because it is not in a form that is amenable to indexing by a search engine. Note that web content is generally in flux, which is why search engines update themselves so frequently. Some expert information that existed in the past may not be presently available.
Expert witness sites tend to act as nonexclusive agents for witnesses. An analogy to an expert witness dating service would not be far off. Expert rosters can be in the hundreds of thousands for some sites. They generally include a search mechanism by witness name, location, topic, and resumes and background information on the expert. Some sites charge for access to search results while others charge a fee only if the expert is retained.
Considerations in Evaluating Potential Experts
Shop around for the specific expertise needed. Ask around. Colleagues may have had experience with an expert in other litigation. Speak to the potential expert about the issues in the case. They should be able to offer some guidance to the technical issues as they apply to both sides of the litigations. An expert is not someone hired to parrot a particular theory or opinion. Rather, their analysis can determine whether the technical facts can support the legal theories for finding liability (or guilt/innocence).
An expert candidate should be able to provide references. Hiring an expert has many of the same characteristics hiring an employee. Allow time to evaluate the possible choices.
Get an expert early on in the litigation. The expert should have enough time to establish the technical facts of the case. Coming up against deadlines imposed by discovery and other pretrial procedure is not conducive to a good expert analysis. An expert’s opinion is more likely to withstand challenges if the expert has sufficient time for thoughtful preparation.
Expert witnesses should have the background and expertise to speak on the specific issues raised in the litigation. That is to say, a generalist in a field may qualify as an expert, but may not be the best expert to present an opinion on an issue. Someone with more detailed knowledge of, and experienced with the specific issue at hand is more likely to be effective at testifying than a generalist.
Be prepared to give detailed information to the expert about the case. Make sure they are aware of all the case details. Withholding information can be the basis for a faulty opinion, and potentially, an ethics violation. An expert should be prepared to discuss what steps need to be taken to form an opinion, and what fees are involved.
Expertise takes the form of education and experience. Selecting the right balance can be affected by the specific issue at hand in the litigation. An expert with less educational depth may still be a better choice if that person has extensive direct experience with the specific technical points at issue. Federal Rule of Evidence 702 and the associated comments allows for such a balance of understanding:
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise….” Check for local and state rules that track the Federal Rules of Evidence for similar qualifiers.
Personality and Communication Skills
A testifying expert will appear in court. Whether the trier of fact is a jury or a judge, the expert should be able to testify in a clear and personable manner. Someone who is technically brilliant but awkward in communicating will not make the best impression on the witness stand. This element of evaluating an expert will not come from a resume. However, examining the expert’s track record in previous litigation can help make the determination as to who would make a potential expert witness for the current litigation. Conversations and meetings should also alert the attorney as to the expert’s ability to make a good impression on the trier of fact.
Consider the ethical aspects of hiring an expert. The testifying expert’s notes, papers, and communications are not protected by the attorney-client privilege. Materials generated in the course of retaining a testifying expert are typically discoverable. With that in mind, an attorney can encourage an expert to keep their drafts and documented conclusions to a minimum. An attorney cannot ethically tell an expert to destroy or hide materials generated in the course of preparing a report or testimony. However, the real lesson here is that an expert with a tainted background will have potential credibility problems.
A work product expert operates under different considerations. These individuals are retained by the attorney to help expand the attorney’s knowledge of technical aspects of the issues. They are not hired to testify and their communications with the attorney can be protected in most circumstances.
A lawyer should make sure that any expert has not had any past contacts with the client or attorney on the other side. These types of conflicts may disqualify the expert from participating in the case.
Expert Opinion as Admissible Evidence
The Supreme Court in the 1990s issued its “Daubert” trilogy of cases addressing the use of scientific evidence and the qualifying of experts in federal cases. These cases consist of Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999). Prior to Daubert, courts used the general acceptance test of Frye v. U.S., 293 F.1013 (D.C. Cir. 1923). That is, any evidence based on scientific or technical issues had to have general acceptance within the scientific community.
The Federal Rules of Evidence came into effect on July 1, 1975 and added Rules 701 through 706 (Article VII of the Rules) governing Opinions and Expert Testimony. Daubert essentially said that the Federal Rules of Evidence superseded Frye and enunciated a four-part test for the admissibility of expert testimony under the Federal Rules.
Under Daubert the courts have a duty to make sure an expert’s testimony is both relevant and reliable. Much of this is taken up with qualifying an expert at the trial through examination and cross-examination of the expert as to the background and experience, and the basis of the expert’s opinion. Some of this is done through pre-trial discovery proceedings under Federal Rule of Civil Procedure 26(2), which sets parameters for what expert materials must be disclosed before trial. These include an expert’s identity, a written report signed by the proffered expert, and unless the court orders otherwise, these disclosures must be made at least 90 days before the date set for trial. The written report must contain the statement of expert opinion and the basis for that opinion; the underlying data or information that the witness used to formulate that opinion; exhibits that will be used to demonstrate the opinion; the witness qualifications and the list of all publications authored in the previous 10 years; a list of all cases within the last four years where the witness testified at trial (including depositions) as an expert; and the amount of compensation to be received in the current case.
Whether a state uses Daubert or Frye as the basis to admit scientific evidence in court, the information required under FRCP 26(2) is a good baseline for measuring any expert’s qualifications for offering an opinion.
II. Verifying the Expert’s Credentials
One of the reasons for investigating an expert is to make sure the expert’s credentials are accurately represented. A lawyer may not offer evidence that is false, and that includes an expert’s credentials. Any discrepancies will be exploited by the other side to undermine the credibility of the expert, and potentially expose the attorney to ethics charges.
Experts should be able to supply evidence of their educational experience and professional associations. They should also have copies of their writings/publications or other documents that are part of a public record in prior litigation. The opposing side’s expert may require independent examination for verification.
The expert’s resume is a good starting point as it will include bibliographic citations to professionally published material. That makes it easier to locate articles and other writings. However, it is possible that some articles or other writings may be omitted, whether out of negligence or other reasons, some of which may be relevant to the expert’s thought processes or analytical methodology in the current case. Aside from the fact that discovery rules may require accurate lists of publications, it is up to the opposing attorney to locate and examine the actual texts. An expert’s credibility or opinion may be attacked depending on the analysis of these materials.
Locating Books and Articles
One aspect of a literature search is to understand how libraries collect and make literature available, particularly technical literature. One cannot assume that obscure technical journals are contained in a library collection. Certainly, law libraries will not collect large volumes of medical or technical journals, even those tangentially related to law. General libraries may subscribe to mainstream technical journals, but few will have the space or budget to acquire them all. However, many libraries subscribe to online journal collections to fill in these gaps in the print holdings. Whether these online are available to general users has more to do with the contracts the library signs with the publishers. Academic libraries, in most cases, must limit access to online journals to their affiliates. Some of these contracts, however, can offer access to non-affiliates if they are physically present in the subscribing library.
There are, however, generally available tools that can locate a source for articles at the very least, whether these be in print or electronic form. In many cases, publishers are more than happy to sell single electronic copies of the article. A short description of these tools and the strategies for using them follows.
WorldCat (http://www.worldcat.org/) is an online database that searches combined library catalogs worldwide for bibliographic information on books, serials, multimedia, and other holdings. Essentially, one can search WorldCat for obscure technical publications by journal title. WorldCat will identify that library in its records even if one library has cataloged the item as part of their collection,. Note that WorldCat does not index the contents of books or journals, and search results do not include results based on that information. Search is by author, title, keyword, and standard number (ISSN/ISBN) contained in the bibliographic record.
Libraries use WorldCat to create the records found in the local online catalog. A version of the database as it appears on computers in a subscribing library has a different interface with a more detailed search and retrieval interface. WorldCat is the largest free bibliographic database available with approximately 2 billion records.
Unfortunately, blind literature searches are a bit more complicated as the number and types of indexes available vary with their subject focus, form (print or online), and whether a subscription is required to use them. Some of the tools that can circumvent this problem include the average search engine, and some specialized web collections.
The first of these is Google Scholar. This site is available https://scholar.google.com/. Scholar identifies only those materials in the search engine that originate in a scholarly publication. There are no ads and Google does not attempt to sell any product in Scholar. Results include materials that appear in subscription only online literature collections. Publishers realize that making these materials available through Google Scholar drives traffic to their sites, making possible the sale of individual articles. PDF copies of articles may generally be had for $3 to $40 or so directly from the publisher. Google Scholar is merely a conduit that leads to the article in question. Google will also list free sources for an article if one is available. Many universities have established online faculty commons, for example, where faculty members have posted individual articles available for free download.
Google Books is another source of bibliographic detail. Google Books is a scanning project devised by Google in cooperation with major academic and national libraries to digitize the complete contents of those libraries. Search locates keyword or phrase terms in the full text of library materials. Display is based on whether the copyright holder has given permission for full, limited, or no display. Materials in the public domain normally appear without restrictions and may be downloaded.
Bibliographic Indexes – Print and Online
One characteristic of online bibliographic databases is their coverage over time. Manycommercial online indexes may only cover between 10 and 50 years of records. At the sametime, current articles are more useful than older ones. A list of selected list of scientific, andmedical indexes appear in Appendix C. The two major legal indexes are Current Law Indexfrom Cengage/Gale, and the Index to Legal Periodicals and Books provided by the H.W. Wilson Company. Both start coverage at around the year 1980, though Wilson provides a back file that starts in 1908. Print copies of these indexes are available in most law libraries. Current Law Index is marketed online as Legal Resources Index or LegalTrac. Some of these indexes are available in Westlaw and Lexis.
Free Scientific and Medical Literature Sources
A fair number of scientific journals have made their content free in the spirit of open scientific inquiry. Some of these are highly technical journals created by professional societies and other science or medical related organizations. A list of free or inexpensive source of scientific literature appears in Appendix B.
Commercial Literature Sources
Not everyone shares in the spirit of open literature sources, including highly respected journals managed by commercial publishing groups. A common way to locate these publications is through a general search via Google or another search engine. Search by publication name. The host site for a journal will usually have a browse feature by volume, issue, and date. These sites usually include content search feature to locate relevant material by author or keyword. Individual articles are generally available for paid download as described above.
Using a Library to Gather Publications
A large firm library will usually have formal contacts with a regional or state library network to gather material not immediately available online. Copies of articles or books are requested through interlibrary loan procedures depending on the firm library and affiliations. For those law offices without an established internal library, it may be possible to utilize local libraries to get materials not immediately available. Whether this is possible depends on the affiliation an individual has with the local library and their policies regarding interlibrary loan. It should be noted that there may be potential costs involved, even with public or special libraries. A lending library may charge for duplication services, shipping costs, or other fees associated with processing a loan. WorldCat’s feature of showing libraries holding a title is a useful tool to determine how available an individual title may be.
III. Investigating the Expert’s Record
Transcript Services – Past Testimony at Trial and in Depositions
The Federal Rules of Civil Procedure require past disclosure of an expert’s publications and pastparticipation in other trials. However, they do not require the expert to turn over the actualdocuments to opposing counsel. For documents generated in the course of litigation such asexpert reports, attorneys must gather them on their own. The obvious place for the sourcedocuments is the Clerk of Court’s Office where the prior litigation took place. These locationsmay be scattered around the country. Traditionally, the Clerk does not search files or senddocuments out on request. Logistically, this is not convenient.
However, several businesses have sprung up to fill the need. There are expert witness services on the Internet that collect court documents associated with experts and make them available for a fee. The most pre-eminent of these is the Daubert Tracker (http://www.dauberttracker.com/). The site boasts over 201,991 case records and over 111,425 expert records and is updated daily. Daubert Tracker also “monitors, analyzes and catalogs all reported and numerous unreported 'Gatekeeping' decisions from both federal and state jurisdictions. A 'Gatekeeping' decision is defined as any decision when a) one of the cases and/or rules of evidence below has been cited or mentioned and b) a testifying expert's methodology or qualifications has been challenged.”
The search on the site is complimented by a large number of filters. One can search by expert name, case name, opinion, by state or federal jurisdiction, by state rules, by leading cases within jurisdiction, and by judge and attorney. The site offers search limits that can locate documents that identify opposing counsel or the presiding judge. Rates are available as an annual subscription or in hourly blocks for non-subscribers. Documents can be downloadable for an additional fee. Daubert Tracker has signed an agreement with Lexis-Nexis to allow access to Lexis subscribers.
Lexis has a few limitations for searching experts. Access to expert information on Lexis is through the Litigation Profile Suite option under the Research option from the very top menu bar. The only access points for search are Expert Witness, Judge, or Attorney. It’s not possible to search by expertise within the Litigation Profile Suite. A researcher can get to the Daubert Tracker service through the Browse option via the top menu bar. Select Sources. A search box appears. Enter Daubert Tracker and Case Reports appears. It’s possible to search within the Case Reports via keyword. There are filters for state, court, practice area & topics, law firm, key word and judge.
Lexis, strategically, is best used to research a specific expert rather than as a source for finding one. However, once an expert is located, the profile will list litigation where the expert was involved with links to the relevant documents in the case.
Some of the source materials that can be searched via the Browse feature include:
- · Daubert Tracker - Case Reports
- · Martindale-Hubbell(R) Law Directory - U.S. Experts and Services
- · JurisPro Expert Witness Directory
- · NY Physicians Discipline Decisions
- · ExpertClick
- · CQ Congressional Testimony
- · Medline References
- · Mega Verdicts & Settlements (Incl. IDEX & ALM) (regional search available)
- · Jury Verdicts and Settlements, Combined
- · What's It Worth? A Guide to Personal Injury Awards and Settlements
- · Dolan Media Verdicts and Settlements
- · Mass Torts Verdicts & Settlements: Mealey's Litigation News
- · Medical Litigation Alert
- · expert4law - The Legal Marketplace, LA County Bar Association Expert Witness Dir
- · JurisPro Expert Witness Directory
- · SEAK National Directory of Experts
Coverage for cases and documents will vary with the database. Results can include case information, and primary documents such as case filings, transcripts, and other documents created by or involving a particular expert. The results appear as summaries of the case with listings for case caption, counsel for each party, judge, court reporter, expert name, and title of the document (deposition, testimony, etc.). Access to the actual documents from these summaries will result in additional charges.
Another option to search expert information in Lexis is to select Evidence from Practice Area or Industry and select All Expert Witness Analysis. A separate link is available for verdict valuation sources on the same page. There isn’t a browse feature though there are multiple search options and filters available. Once again, the best strategy to search any portion of Lexis is to have an expert already identified.
Westlaw has organized expert services into a number of directories related to finding or investigating a witness:
· Expert Witness Curricula Vitae and Resumes
o West's Expert Witness Curricula Vitae/Resumes: Court-Filed
o West's Expert Witness Curricula Vitae/Resumes: Non Court-Filed
- · Expert Depositions
- · Expert Directories
o Expert Witness Directory
o Forensic Services Directory
o West's National Physician Directory
- · Expert Profiles
- · Expert Questions & Answers
o Expert Questions & Answers by Expert
o Expert Questions & Answers by Question
- · Expert Reports & Affidavits
- · Expert Trial Transcripts
Tools & Resources
Expert Challenge Reports
Expert Evaluator Reports
Jury Verdicts & Settlements
Trial Transcripts & Oral Arguments
Search is available for access points such as jurisdiction, type of case, expert name and return expert reports, depositions, affidavits, and testimony. Coverage for documents begins in 1996.
Strategies for Analyzing an Expert’s Prior Testimony and Literature -- Electronic Tools
There is no substitute for taking the bulk of past literature and testimony and reading it, taking notes, and analyzing it as it relates to the current litigation. This is a time consuming process. However, with electronic tools, some of the relationships between ideas and concepts in past testimony can be brought out using search software of one type or another. Transcript services will generally provide electronic copies of depositions and testimony. Many articles or authored literature are available in electronic form. Those that aren’t may be scanned and converted to text using optical character recognition (OCR) software.
Once all content is converted electronically, it can be stored on a computer and searched. There are any number of tools available that can provide a range of functionality, from simple word search to Boolean connectors as used in Lexis and Westlaw. The most common searchable file formats are text, Microsoft Word documents, Adobe PDF documents, WordPerfect document format, and others. They also offer the ability to tag documents with meta-information making later retrieval easy.
A more sophisticated approach would be to use a document management system that is designed with search flexibility and privacy features. There is any number of software titles that may do this, ranging in a cost from free to several hundred dollars. The features most useful would be to index across a range of file formats, the ability to search contextually, the ability to keep the results private, and the ability to annotate the search results.
Appendix A -- A selected list of expert witness sites on the web
These sites are noted because of a combination of features, including the depth of expert listing and expertise, the flexibility of the search process, and the ease of analyzing the results.
· Consolidated Consultants, Co.
Consolidated Consultants is a free referral service with limited descriptions of available experts. The site acts as a go-between in matching experts to attorneys.
- · ExpertLaw.com
This site acts as a portal, organized by types of litigation. Ultimately, it links to the expert’s own site.
· Expert Pages
The site is organized as a portal with links to subject. Search is by expert name, location, and area of expertise. The results include short summary expert descriptions along with links to web sites and contact information. Each expert web site has varying degrees of information which slows down the process of identifying appropriate experts.
- · ExpertWitness.com
The site has a roster of experts with mostly blind CVs and short biographies, though these include pictures of the expert, lists of selected publications by title, and other specific information about the expert that could probably identify them with a small amount of investigation. The search and contact information are free.
· Expert Witness Network
Ten thousand experts are on file. The site requires payment for annual or a one-time use of the expert database.
- · HGExperts.com
Portal featuring links to hundreds of specialties. Search by expert name, location, and expertise. Results return pictures, contact information, and a heavily detailed description of the expert’s education and experience.
- · SEAK, Inc. National Directory of Experts
The directory features keyword searching by name of expert, specialty, and location. The results include a summary description of the expert with contact information. Two pieces of information about each entry that stands out is the number of years in practice and the number of times that expert has testified in the last four years.
· Washburn University - WashLaw Directory Expert
A directory of expert witness referral sites, and major professional organization sites. Links directly to web sites of listings.
Appendix B -- Free or Inexpensive Scientific Literature sites
- · Highwire Press (http://highwire.stanford.edu/). This database is produced by the Stanford Universities Libraries. It contains the full text of more than 1.8 million articles, many of which are free or pay-per-view. Articles are available in full text and PDF format. Search is by author, by title, and by keyword in the text.
- · PubMed Central (http://www.pubmedcentral.nih.gov/). PubMed Central is a free digital archive of biomedical and life sciences journal literature at the U.S. National Institutes of Health (NIH). Articles are available in full text and PDF format. Advance search is by author, topic, keyword, or limited by selection in 34 different document fields.
Appendix C – Commercial/Pay Scientific and Medical Index Electronic Sources
- · SciSearch/Science Citation Index
Recommended for advanced research on where authors and articles have been cited for 4,500 journals from 1974 to the present. The SCI is included in a larger index called the Web of Science which also includes citations in social science, and arts and humanities.
- · Annual Reviews
Annual Reviews provides researchers, professors, and scientific professionals with a definitive academic resource in 32 scientific disciplines. Annual Reviews synthesizes vast amounts of primary research literature and identifying the principal contributions in a field. Editorial committees comprised of the most distinguished scholars in the discipline select all topics for review, and the articles are written by authors who are recognized experts in the field. The results include a list of articles which have cited each review paper and the ability to set up a search alert for new articles that have cited a review paper. Coverage begins in 1930.
· CINAHL -This site indexes nursing journals, practice acts, and conference proceedings; with abstracts and some full text. It is included with EBSCO Host, which offers citations to a variety of educational, medical, scientific, and other specialty publications.
· EBSCO Host - EBSCO Host indexes journals in many academic fields; with full text and some fullimage articles. Search is available for individual publications and subject areas.
· PsycINFO - This database indexes journals, dissertations, books and book chapters in all areas of psychology; with abstracts. It now includes PsycARTICLES, full text articles from selected journals
· MEDLINE - The MEDLINE database is a product of the National Library of Medicine and indexes biomedical and life science journals. Results are in the form of citations. Some commercial database publishers also offer a version of MEDLINE, usually with enhancements.
· Science Citation Index - Indexes references lists in scientific and technical journals. Recommended for advanced research on where authors and articles have been cited.
· ScienceDirect - ScienceDirect indexes over 1800 journals in science, health and social sciences and includes references from the Medline database.