Expert Witness Evaluation

The last several years have seen an explosion as to the online availability of information that can be used to investigate an expert witness: transcripts of testimony, expert reports, verdict and case reports, curriculum vitae ' the list goes on and on. Almost any legal professional who has researched an expert knows that such information is available through commercial vendors or via a search of the “open Web.” So, this article will not address how to find such information. Rather, what follows are some insights ' some strategic tips ' on what to do with that information once you have it.

Transcripts

In addition to uncovering inconsistencies, many other strategic uses of transcripts exist. An obvious use of transcripts of an expert's prior testimony is simply to read them to determine whether anything said in a prior lawsuit is inconsistent with what that expert is prepared to say in yours. Such an inconsistency might be used to discredit the expert during a deposition or at trial.

But use transcripts in other creative ways. For instance, transcripts that merely mention the expert, but are not her own words, are valuable as well. When attorneys depose an expert, they often ask that person about the other experts involved in the case. If this occurs, sometimes a responding expert will be very candid and say something along the lines of: “opposing expert Dr. Smith is not qualified to testify about this area, as his expertise lies elsewhere ' ” Understanding how an expert is “ viewed” by his peers is very important and may shed light on his credibility in the relevant community.

Another way to use transcripts is to understand how that expert testifies. As you read the words, did it seem that the expert was cool, calm and collected ' she had her testimony down pat? Or, perhaps, the expert got argumentative, suggesting that she is a “hot head” and is easily rattled. Maybe the expert was evasive when it came to a certain line of questioning. Does it seem that the expert has the propensity to not answer questions and, instead, tap dances around a clean, crisp answer? Understanding such matters will better prepare you for taking that expert's deposition.

Finally, as you review the testimony of expert, notice even the little things. A keen eye might recognize a brief Q and A that is seemingly meaningless and not relevant to the issues of the case. But then consider why that Q and A took place at all. Was the deposing attorney trying to make a less-than-explicit point with the expert?

For instance, we have both seen and heard of instances when a deposing attorney, in the midst of a deposition, has referenced personal information about the expert (e.g., a personal bankruptcy, ownership of a second home, etc.). Relevant to the issues involved in the case? Likely not. An inappropriate and possibly objectionable inquiry? Possibly yes. The strategic use? To subtly put that expert on notice that the deposing attorney has thoroughly researched him, and knows everything about him. It really happens.

Expert Reports

Like transcripts, the reports an expert has authored for other lawsuits can be used in a couple ways: One is obvious, the other is not. Again, the obvious use is in the context of inconsistent statements. That is, is something that expert wrote two years ago in a report inconsistent with a position she is taking in your case?

However, as you compare old reports with the report the expert has prepared for your case, also look for tremendous consistency. This is necessary because some experts repurpose (basically, “cut and paste” from) old reports. A prominent example of this was reported several years ago. Specifically, an expert on sports economics was shown to have created “virtually identical” pages in a report for a lawsuit involving the Seattle SuperSonics from pages in a report he had authored three years previously for a lawsuit involving the Anaheim Angels. See “City Witness Crossed Up. Sonics Lawyer Stymies Sports Economist.” The Seattle Post-Intelligencer (June 18, 2008).

Curriculum Vitae: Biographical Information

An expert's current curriculum vitae (“CV”) provides a number of opportunities for strategic investigation. First of all, check for lies and inconsistencies when it comes to basic current biographical information ' that is, simply verify what is stated on that CV. Double-check claimed licensure and certifications, degrees, institutions attended, employment history, etc.

In addition, compare the credentials on that CV with any other current biographical information you can find about that expert. Check out information posted by that expert in any expert directories. Consider viewing the expert's LinkedIn (or other professional or social networking site) profile. Access the expert's website to review any credentials listed there. The point is ' gather as much biographical information as you can and then do a side-by-side comparison, looking for discrepancies.

Also compare what the expert currently has listed on her CV with older, dated biographical information. Such older information (i.e., an expert's old CVs) can be obtained not only though online databases, but also by contacting attorneys involved in lawsuits the expert worked on previously.

Moreover, consider using the Wayback Machine (www. archive.org) to uncover what the expert listed as his credentials on his website ' in the past. The Wayback Machine archives versions of websites as they have existed over time, thereby possibly enabling you to see what the expert listed as her credentials at her website several years ago, and then compare what you find with the current claims on that expert's CV. Are there any inconsistencies? Did the expert previously claim to have attended MIT when, in fact, she got her degree from another, less-prestigious institution? Importantly, several judges have found that printouts of the results from the Wayback Machine are admissible. See, e.g., Sam's Riverside, Inc. v. Intercon Solutions, Inc., 2011 U.S. Dist. LEXIS 62280, *36-37 (S.D. Iowa 2011); Telewizja Polska USA, Inc. v. Echostar Satellite, 2004 U.S. Dist. LEXIS 20845, *17-18 (N.D. Ill. 2004).

Finally, double-checking an expert's CV may lead to other interesting information. Inside Job is a 2010 documentary that addressed the worldwide financial meltdown that occurred in the late 2000s. Near the end of the movie, an economics professor from Columbia University is interviewed about a discrepancy on his CV. Specifically, at the time of the interview, the professor's CV listed authorship of a paper titled “Financial Instability in Iceland.” Yet the actual title of that paper was “Financial Stability in Iceland.” When confronted with the inconsistency, the professor stated that the CV had a typo. Whether it was, in fact, a typo or not, it illustrates the importance of going through an expert's CV with a fine-tooth comb, looking for anything peculiar.

Curriculum Vitae: Authored Works

Take several approaches when it comes to an expert's authored works, typically listed on the last several pages of an expert's CV. First, verify whether the expert did, in fact, write the articles, books, etc. listed. This is important because some works are ghostwritten; that is, someone else writes the article, but authorship is claimed by another (e.g., the expert in question).

Second, undertake research to uncover articles written by the expert but not noted on her CV. If an expert has authored a paper that has been criticized by the relevant professional community or that makes points which contradict what that expert intends to say during the course of the lawsuit, it is unlikely that that expert will claim authorship on the CV, hoping that it will not be found.

Third, determine whether any articles have been repurposed. Again, just like reports, some experts will re-use an article ' taking an article that has already been published, changing its title (and possibly even making some minor changes to the text) and then submitting it to another organization for publication. If this is done enough times, that single article could generate numerous seemingly unique entries in that expert's CV.

Verdict, Settlement, Case Reports

Verdict (and Settlement and Case) reports present valuable opportunities for analysis and additional research. These reports are one-page summaries of lawsuits that have gone to trial, been non-confidentially settled or even just set for trial (in the future). Besides listing identifying information about the lawsuit itself (e.g., case name, case number, type of case, jurisdiction), these reports typically include others types of information, including the names of experts retained by the parties.

As a first step, analyze the reports for any suggestion of bias. For instance, does it appear that the expert always testifies for one side of the lawsuit (e.g., plaintiff or defense), for a certain law firm, or for a particular party? If so, it might suggest favoritism. In and of itself, such information could be beneficial, but take it to the next level. Specifically, compare the results of your analysis with how the expert has represented himself on his website. For example, if the reports indicate that the expert in question always testifies on behalf of plaintiffs, yet his website claims that he is neutral and unbiased (even the most-biased expert never writes “I'm a defense expert” on her website), that might warrant further inquiry in a deposition or at trial.

Second, use the contact information noted for the attorneys listed in the reports. Call the attorneys who “opposed” the expert and ask whether they would be willing to provide you with information about her. More often than not, the attorneys you contact will decline to assist you. Sometimes, however, one will offer to forward to you the expert's report and transcripts of her testimony.

Finally, use such reports (and other similar information) to double-check an opposing expert's disclosure. For instance, Federal Rule of Civil Procedure 26(A)(2)(b) requires that an expert disclose to the opposing side a list of the lawsuits she has worked on over the prior four years. Yet some experts fail, either deliberately or inadvertently, to make complete disclosures. To track down lawsuits that may have been omitted from a disclosure, search databases of verdict/settlement/case reports (as well as other sources, such as dockets) and then simply do a side-by-side comparison to uncover any omissions. If you find one, use it as a basis of a motion to disqualify (if you deem it significant enough). Although the vast majority of judges will not find such an omission to be egregious and will simply require the expert to supplement the disclosure, some judges will be offended by such shenanigans if they perceive them as deliberate. See, e.g., Siegel v. Warner Bros. Entm't, Inc., 2009
U.S. Dist. LEXIS 66115, *16-17 (C.D. Cal. 2009) (court finds “disturbing” an expert's failure to disclose a lawsuit from the prior year in which his testimony was excluded: “the Court can only conclude that the failure was a deliberate effort to bury negative information”).

Conclusion

A thorough vetting of an expert involves more than just obtaining information about him or her. The savvy practitioner must also understand how to get the most out of that information, by thinking strategically. As related in this article, problems with some experts do exist, often hiding in plain sight and waiting to be discovered and exploited by the prepared and creative attorney. Although “gotcha” discoveries of such problems ' relating to an expert's background, findings, or reports ' do not occur in every case, retrieving as much information about an expert, and then strategically thinking about it, is always recommended. At a minimum, engaging in that process will better prepare you to take on the expert and her conclusions.

Timothy W. Hoover is a partner with Phillips Lytle LLP in Buffalo, NY, and is co-chair of the Firm's White Collar Criminal Defense and Government Investigations Practice Team. He can be reached at [email protected] or 716-504-5754. David V. Dilenschneider is a Director, Client Relations for LexisNexis. He is a frequent author, co-author and lecturer on the subject of using online resources to research experts. He can be reached at [email protected] or 720-870-7160.

The last several years have seen an explosion as to the online availability of information that can be used to investigate an expert witness: transcripts of testimony, expert reports, verdict and case reports, curriculum vitae ' the list goes on and on. Almost any legal professional who has researched an expert knows that such information is available through commercial vendors or via a search of the “open Web.” So, this article will not address how to find such information. Rather, what follows are some insights ' some strategic tips ' on what to do with that information once you have it.

Transcripts

In addition to uncovering inconsistencies, many other strategic uses of transcripts exist. An obvious use of transcripts of an expert's prior testimony is simply to read them to determine whether anything said in a prior lawsuit is inconsistent with what that expert is prepared to say in yours. Such an inconsistency might be used to discredit the expert during a deposition or at trial.

But use transcripts in other creative ways. For instance, transcripts that merely mention the expert, but are not her own words, are valuable as well. When attorneys depose an expert, they often ask that person about the other experts involved in the case. If this occurs, sometimes a responding expert will be very candid and say something along the lines of: “opposing expert Dr. Smith is not qualified to testify about this area, as his expertise lies elsewhere ' ” Understanding how an expert is “ viewed” by his peers is very important and may shed light on his credibility in the relevant community.

Another way to use transcripts is to understand how that expert testifies. As you read the words, did it seem that the expert was cool, calm and collected ' she had her testimony down pat? Or, perhaps, the expert got argumentative, suggesting that she is a “hot head” and is easily rattled. Maybe the expert was evasive when it came to a certain line of questioning. Does it seem that the expert has the propensity to not answer questions and, instead, tap dances around a clean, crisp answer? Understanding such matters will better prepare you for taking that expert's deposition.

Finally, as you review the testimony of expert, notice even the little things. A keen eye might recognize a brief Q and A that is seemingly meaningless and not relevant to the issues of the case. But then consider why that Q and A took place at all. Was the deposing attorney trying to make a less-than-explicit point with the expert?

For instance, we have both seen and heard of instances when a deposing attorney, in the midst of a deposition, has referenced personal information about the expert (e.g., a personal bankruptcy, ownership of a second home, etc.). Relevant to the issues involved in the case? Likely not. An inappropriate and possibly objectionable inquiry? Possibly yes. The strategic use? To subtly put that expert on notice that the deposing attorney has thoroughly researched him, and knows everything about him. It really happens.

Expert Reports

Like transcripts, the reports an expert has authored for other lawsuits can be used in a couple ways: One is obvious, the other is not. Again, the obvious use is in the context of inconsistent statements. That is, is something that expert wrote two years ago in a report inconsistent with a position she is taking in your case?

However, as you compare old reports with the report the expert has prepared for your case, also look for tremendous consistency. This is necessary because some experts repurpose (basically, “cut and paste” from) old reports. A prominent example of this was reported several years ago. Specifically, an expert on sports economics was shown to have created “virtually identical” pages in a report for a lawsuit involving the Seattle SuperSonics from pages in a report he had authored three years previously for a lawsuit involving the Anaheim Angels. See “City Witness Crossed Up. Sonics Lawyer Stymies Sports Economist.” The Seattle Post-Intelligencer (June 18, 2008).

Curriculum Vitae: Biographical Information

An expert's current curriculum vitae (“CV”) provides a number of opportunities for strategic investigation. First of all, check for lies and inconsistencies when it comes to basic current biographical information ' that is, simply verify what is stated on that CV. Double-check claimed licensure and certifications, degrees, institutions attended, employment history, etc.

In addition, compare the credentials on that CV with any other current biographical information you can find about that expert. Check out information posted by that expert in any expert directories. Consider viewing the expert's LinkedIn (or other professional or social networking site) profile. Access the expert's website to review any credentials listed there. The point is ' gather as much biographical information as you can and then do a side-by-side comparison, looking for discrepancies.

Also compare what the expert currently has listed on her CV with older, dated biographical information. Such older information (i.e., an expert's old CVs) can be obtained not only though online databases, but also by contacting attorneys involved in lawsuits the expert worked on previously.

Moreover, consider using the Wayback Machine (www. archive.org) to uncover what the expert listed as his credentials on his website ' in the past. The Wayback Machine archives versions of websites as they have existed over time, thereby possibly enabling you to see what the expert listed as her credentials at her website several years ago, and then compare what you find with the current claims on that expert's CV. Are there any inconsistencies? Did the expert previously claim to have attended MIT when, in fact, she got her degree from another, less-prestigious institution? Importantly, several judges have found that printouts of the results from the Wayback Machine are admissible. See, e.g., Sam's Riverside, Inc. v. Intercon Solutions, Inc., 2011 U.S. Dist. LEXIS 62280, *36-37 (S.D. Iowa 2011); Telewizja Polska USA, Inc. v. Echostar Satellite, 2004 U.S. Dist. LEXIS 20845, *17-18 (N.D. Ill. 2004).

Finally, double-checking an expert's CV may lead to other interesting information. Inside Job is a 2010 documentary that addressed the worldwide financial meltdown that occurred in the late 2000s. Near the end of the movie, an economics professor from Columbia University is interviewed about a discrepancy on his CV. Specifically, at the time of the interview, the professor's CV listed authorship of a paper titled “Financial Instability in Iceland.” Yet the actual title of that paper was “Financial Stability in Iceland.” When confronted with the inconsistency, the professor stated that the CV had a typo. Whether it was, in fact, a typo or not, it illustrates the importance of going through an expert's CV with a fine-tooth comb, looking for anything peculiar.

Curriculum Vitae: Authored Works

Take several approaches when it comes to an expert's authored works, typically listed on the last several pages of an expert's CV. First, verify whether the expert did, in fact, write the articles, books, etc. listed. This is important because some works are ghostwritten; that is, someone else writes the article, but authorship is claimed by another (e.g., the expert in question).

Second, undertake research to uncover articles written by the expert but not noted on her CV. If an expert has authored a paper that has been criticized by the relevant professional community or that makes points which contradict what that expert intends to say during the course of the lawsuit, it is unlikely that that expert will claim authorship on the CV, hoping that it will not be found.

Third, determine whether any articles have been repurposed. Again, just like reports, some experts will re-use an article ' taking an article that has already been published, changing its title (and possibly even making some minor changes to the text) and then submitting it to another organization for publication. If this is done enough times, that single article could generate numerous seemingly unique entries in that expert's CV.

Verdict, Settlement, Case Reports

Verdict (and Settlement and Case) reports present valuable opportunities for analysis and additional research. These reports are one-page summaries of lawsuits that have gone to trial, been non-confidentially settled or even just set for trial (in the future). Besides listing identifying information about the lawsuit itself (e.g., case name, case number, type of case, jurisdiction), these reports typically include others types of information, including the names of experts retained by the parties.

As a first step, analyze the reports for any suggestion of bias. For instance, does it appear that the expert always testifies for one side of the lawsuit (e.g., plaintiff or defense), for a certain law firm, or for a particular party? If so, it might suggest favoritism. In and of itself, such information could be beneficial, but take it to the next level. Specifically, compare the results of your analysis with how the expert has represented himself on his website. For example, if the reports indicate that the expert in question always testifies on behalf of plaintiffs, yet his website claims that he is neutral and unbiased (even the most-biased expert never writes “I'm a defense expert” on her website), that might warrant further inquiry in a deposition or at trial.

Second, use the contact information noted for the attorneys listed in the reports. Call the attorneys who “opposed” the expert and ask whether they would be willing to provide you with information about her. More often than not, the attorneys you contact will decline to assist you. Sometimes, however, one will offer to forward to you the expert's report and transcripts of her testimony.

Finally, use such reports (and other similar information) to double-check an opposing expert's disclosure. For instance, Federal Rule of Civil Procedure 26(A)(2)(b) requires that an expert disclose to the opposing side a list of the lawsuits she has worked on over the prior four years. Yet some experts fail, either deliberately or inadvertently, to make complete disclosures. To track down lawsuits that may have been omitted from a disclosure, search databases of verdict/settlement/case reports (as well as other sources, such as dockets) and then simply do a side-by-side comparison to uncover any omissions. If you find one, use it as a basis of a motion to disqualify (if you deem it significant enough). Although the vast majority of judges will not find such an omission to be egregious and will simply require the expert to supplement the disclosure, some judges will be offended by such shenanigans if they perceive them as deliberate. See, e.g., Siegel v. Warner Bros. Entm't, Inc., 2009
U.S. Dist. LEXIS 66115, *16-17 (C.D. Cal. 2009) (court finds “disturbing” an expert's failure to disclose a lawsuit from the prior year in which his testimony was excluded: “the Court can only conclude that the failure was a deliberate effort to bury negative information”).

Conclusion

A thorough vetting of an expert involves more than just obtaining information about him or her. The savvy practitioner must also understand how to get the most out of that information, by thinking strategically. As related in this article, problems with some experts do exist, often hiding in plain sight and waiting to be discovered and exploited by the prepared and creative attorney. Although “gotcha” discoveries of such problems ' relating to an expert's background, findings, or reports ' do not occur in every case, retrieving as much information about an expert, and then strategically thinking about it, is always recommended. At a minimum, engaging in that process will better prepare you to take on the expert and her conclusions.

Timothy W. Hoover is a partner with Phillips Lytle LLP in Buffalo, NY, and is co-chair of the Firm's White Collar Criminal Defense and Government Investigations Practice Team. He can be reached at [email protected] or 716-504-5754. David V. Dilenschneider is a Director, Client Relations for LexisNexis. He is a frequent author, co-author and lecturer on the subject of using online resources to research experts. He can be reached at [email protected] or 720-870-7160.