Resources: Expert Witness Research Guide
Expert Witness Research Guide
Expert witness research typically includes a review of an expert's specific expertise and experience. Our survey regarding Expert Witness Research Methods and Data Sources reported several different sources of pertinent information in ranked order of importance. This guide briefly describes each data source and provides useful suggestions for where to find relevant information. This information will aid lawyers seeking to select the best expert witness for their case as well as lawyers who are vetting an expert witness disclosed by opposing counsel.
When researching experts, how important are the following sources/research items?
- CV, including prior versions
- Reported degrees and education
- History of Daubert, or similar challenges
- Testimony Transcripts
- Published expert witness reports
- List of publications
- Prior retentions history -- hiring attorneys/law firms & ultimate client/party
- Verdicts and settlements from prior cases
- Expert's social media posts
- Political contributions
- Additional Links
- About the Authors
One of the most important and easily verifiable aspect of an expert's credentials are the licenses he or she holds. While licenses are often mandatory for carrying out professional work, there are certain states that require specific licenses before one may testify as an expert witness. An example is the Medical Expert Witness Certificate with the Florida Board of Medicine; a mandatory requirement for any medical doctor before working as an expert witness in the State. Almost every state has a dedicated website where one could look up the license number, license status, the original issue and expiration date, as well as information about any disciplinary or administrative action that may have been taken against the expert.
A lapsed license can get an expert precluded from testifying and while some judges may choose to overlook it as an immaterial clerical oversight, attorneys are better off conducting due diligence into the sufficiency and validity of their expert's licenses. In Skaggs v. Parker, 235 F.3d 261 (6th Cir.), the denial of habeas corpus by the U.S. District Court for the Western District of Kentucky was reversed on appeal because the counsel at trial had failed to conduct due diligence into the license that their psychological expert claimed to possess and the decision to use such an expert at the guilt/sentencing phase of the trial amounted to ineffective assistance by the counsel. Here, the trial counsel had retained the expert solely on the basis of her previous experience working with the expert in a case and when asked to tell the court what investigation she conducted into Bresler's background and qualifications before utilizing him as a witness; she responded, "Absolutely none”.
A simple online search for “state name” and “license verification” (e.g. Kentucky License verification) would reveal the respective state’s licensing board website and one should be able to conduct verifications within minutes. If the expert is known to practice in multiple states, it is recommended to check the licensing and disciplinary action database for each state in which the expert has been active. Most states do not report any out of state disciplinary actions. Some of the professions where licenses are mandatory and are usually verifiable from the state licensing board websites are medical physicians, accountants, clinical psychologists, professional counselors, and Chiropractic Examiners.
2. CV, including prior versions
Survey participants considered expert witness curricula vitae to be just as important as an expert's specific licenses and credentials. Expert CVs outline the expert's qualifications and specific areas of expertise. In addition, the CV provides a roadmap to many of the important pieces of information outlined in this article (i.e., licenses, education, professional credentials, publications and testimonial history.)
Experts often update their CVs regularly and a few may choose to remove certain pieces of information that they do not want shared. While suppressing a disciplinary action could amount to a material omission, an expert may choose to remove a publication from their resume if the article contradicts an opinion issued in a current case. Therefore, locating and evaluating old versions of an expert's CV in order to compare them to the disclosed version may benefit an expert researcher.
Expert witness CVs may be located on the expert's website, within expert witness directories and from expert search firms. Archive.org may identify older versions of a CV that were previously published on the expert's website. Both LexisNexis and Westlaw provide searchable expert CV databases. However, they do not yet have a comparison tool that could identify differences between the various versions, if any. Another resource to locate older versions of court filed resumes is Docket Alarm or other docket search tools which identify CVs filed in federal courts as part of Rule 26 reports. Other possible sources include RECAP, Court Listener and Justia Dockets.
3. Reported degrees and education
The importance of verifying an expert's reported degree cannot be understated. The discovery of a misrepresentation may lead to the immediate exclusion of the expert and could expose the hiring attorney to malpractice litigation.
For example, Joseph Kopera was a ballistics expert who was heavily favored by State of Maryland prosecutors but was later found to have falsified several degrees. The eventual discovery of the malfeasance led to the State Attorney digging up all his old cases and notifying the defense on each case to see what, if anything, they wanted to do.
For attorneys looking to verify degrees, the National Student Clearinghouse is the “largest provider of electronic student record exchanges and postsecondary transcript ordering services” with more than 5,000 participating colleges. Each verification costs $14.95 plus a university surcharge, if applicable. The results are delivered by email. However, it takes a few days to confirm the degrees in some cases and they may not be able to provide verification without the expert's date of birth.
4. History of Daubert, or similar challenges
Expert witness testimony is ubiquitous in U.S. litigation and challenges to preclude, exclude or limit it is increasing. Expert testimony may be challenged from the point of disclosure to well into post trial stages and appeals. It is important to learn about the challenge history of an expert before retaining him or her. If a judge has excluded an expert's opinions in the past or has not relied on their testimony, it is worth learning why. If the exclusion or limitation relates to an expert's prospective opinion in a new matter, then the attorney may consider retaining another expert.
The DaubertTracker maintains a database of challenges to expert witness testimony. The company tracks and updates all orders and opinions across federal and state cases in the United States on a daily basis. Its database of over 150,000 challenges is available directly from its website and is also licensed and available on Courtroom Insight, LexisNexis and Westlaw. Other sources of challenge data include Docket Alarm, Court Listener and Justia. Each source replicates the document headers of PACER and make them searchable, thereby increasing the possibility of finding challenges even if there are no published or unpublished opinions or orders.
Both LexisNexis and Westlaw offer additional challenge information through their large databases of motions, pleadings and briefs. Alternatively, Expert Witness Profiler provides a custom research Challenge Study that looks into all these databases and more to unearth difficult to find information on expert witness challenges.
The first step taken by many attorneys seeking information about an expert is to ask colleagues. Members of small law firms may have direct access to their colleagues on a regular basis. Other attorneys commonly rely upon email blasts within their law firm or legal network to solicit feedback about the strengths and weaknesses of a specific expert or to gather recommendations for individuals with a particular area of expertise. Responses often result in a follow up phone call and discussion with a trusted attorney who has prior experience working with or opposing an expert.
Sending email requests for information may not result in sufficient responses on a timely basis. Lawyers at larger organizations may benefit from internal knowledge management systems such as Courtroom Insight which track and monitor information about the experts used by the entire organization. Professional organizations often provide listserves and databases designed specifically for this purpose as a member benefit.
Lawyers may seek public performance reviews but those are generally few and far between. In addition, lawyers may ask currently retained and trusted expert witnesses for recommendations and feedback about other experts. Regardless of the source, recommendations and reports from trusted colleagues are often relied upon most by attorneys.
National membership organizations that share recommendations and testimonials include DRI – The Voice of the Defense Bar and the American Association for Justice. Numerous local and regional associations of plaintiffs or defense counsel are also available.
6. Testimony Transcripts
Historical trial and deposition transcripts are important sources of information for attorneys seeking to verify and assess an expert's prior opinions. Prior expert witness engagements are often listed on expert witness CVs but transcripts are rarely shared directly from the experts. However, transcripts from both referenced and unlisted case information may be accessed directly through PACER and local court websites for a fee. Newer docket reporting services such as Docket Alarm and Gavelytics offer an improved way to search and access these transcripts. In addition, LexisNexis and Westlaw have accumulated organized repositories of testimonial transcripts.
Beyond member provided and paid access to transcripts, attorneys may seek assistance from counsel named in prior engagements to assess their willingness to share prior deposition transcripts.
7. Published expert witness reports
Prior to testifying in trial, expert witnesses in civil litigation are often required to submit written expert reports that include the expert's credentials, findings and information relied upon to form his or her expert opinions. Such report submissions are usually exchanged with opposing counsel. In some instances, such reports are submitted to the court and made available as part of the case file. Therefore, a search within LexisNexis, Westlaw, Fastcase and/or docket searches may locate expert witness reports.
Beyond known repositories of reports, researchers may contact counsel from the expert's prior engagements to seek copies of prior reports.
8. List of publications
Many academics occasionally testify about topics related to their specialty. In addition, full-time expert witnesses write professional articles related to their areas of expertise and about serving as an expert witness. Therefore, a review of authored scientific and technical articles is a useful resource for learning more about a potential expert's detailed knowledge and areas of expertise. Popular sources of published articles include Hein Online, EBSCO, ProQuest and Google Scholar.
9. Prior retentions history -- hiring attorneys/law firms & ultimate client/party
An expert's testimonial history provides important information to the attorney or researcher conducting research. Common questions asked by the researcher may include:
- How often does the expert testify each year?
- What is the ratio of plaintiff v. defense retentions?
- How many times has the expert been retained by specific attorneys or law firms?
- How many times has the expert testified on behalf of specific parties?
- Does the expert have experience testifying in a certain jurisdiction or before a particular judge?
Some experts list their prior testimonial histories on their CVs. In addition, experts are required to disclose prior testimonial histories in federal court as part of their Rule 26 disclosures. General searches within LexisNexis, Westlaw, Fastcase or docket services may yield prior retentions histories.
10. Verdicts and settlements from prior cases
The primary purpose of expert witness testimony is to educate and persuade the trier of fact. Using data from jury verdicts and settlements, one can assess the number of times the expert's side has won or lost the case which could possibly approximate an expert's persuasiveness. These summaries often include helpful case summaries that detail case specifics which help researchers identify experts that have opined on certain issues or types of cases.
The most comprehensive sources for jury verdicts and settlements are LexisNexis and Westlaw. Both of these companies create their own data and aggregate information from multiple other publishers. Other notable sources include ALM's VerdictSearch, Zarin's Jury Verdict Review, Jury Verdict Publications, and Jury Verdict Report by Law Bulletin Media.
11. Expert's social media posts
There has been a steady increase in the use of social media for marketing purposes. As a result, many experts engage in discussions on Facebook, Twitter, and LinkedIn groups. An expert’s authored social media posts or posts about them could lend interesting insights into their thinking (political, professional as well as personal.) Therefore, a review of social media may prove to be a valuable resource for an expert researcher. Social Searcher, Pipl, SocialMention and BuzzSumo are some of the top social media search engines that provide the ability to conduct platform agnostic searches.
12. Political contributions
Some attorneys find it useful to gain insights into an expert’s political affiliation, depending on the nature and size of their case. The Federal Election Commission maintains a database of all political contributions above $200 and provides advanced search options to filter the donors by City, State etc. Two other tools worth investigating include the website Follow The Money and ProPublica’s FEC Itemizer which can be used to browse electronic campaign finance filings.
Expert witness research is an integral part of the litigation process. Since there is currently no one-stop shop available, a diligent researcher will visit many different sources of information to complete an assessment. As the availability of data improves, the reasonable standards of due diligence increase. The failure to investigate an expert’s credentials, challenge and testimonial histories, publications and other background materials may be deemed unacceptable by courts as well as clients.
The suggestions listed in this article provide a useful roadmap for an independent researcher. For those that seek additional assistance, paid research options are available to assist with various aspects of this process.
Expert Witness Profiler is a specialized research firm used by many organizations, including Courtroom Insight. EWP offers preliminary screening reports, expert challenge studies and comprehensive expert witness profiles which provide a comprehensive, cost-effective background report on a specific expert.
Lexis Nexis Expert Research On-Demand is another popular research tool. This source of custom research services is derived from the Lexis Nexis acquisition of IDEX which had accumulated a large document repository of expert witness documents. EROD offer a la carte access to individual CVs, transcripts and other relevant expert documents without the need for a LexisNexis account. In addition, EROD offers custom research services including testimonial history reports, enhanced challenge reports, professional discipline searches and searches for articles written by experts.
Many forward-thinking law firms and legal organizations implement systems to capture and share this type of research internally for the benefit of their lawyers and researchers. Courtroom Insight’s Expert Witness Knowledge Management Solution is the leading product to offer this functionality. In the alternative, firms may design and build their own custom applications.
For those interested in a more thorough examination of expert witness research topics and sources, please review the following sources:
Expert Witness Research Methods and Data Sources – Comprehensive survey of 580 legal professionals who regularly perform retain and research expert witnesses.
Expert Witness Whitepaper – Detailed guide for finding and researching experts and their testimony.
About the Authors
Mark Torchiana is co-founder and CEO of Courtroom Insight, which offers an expert witness knowledge management solution to law firms and legal organizations. The platform provides a systematic, organized approach to managing an organization's knowledge about expert witnesses. In addition to founding Courtroom Insight, he has over 20 years of experience providing forensic accounting litigation support and expert witness services.
Ashish Arun is Principal and Director of Research and Operations for Expert Witness Profiler, a firm that specializes in custom expert witness research. In addition, he founded the legal research firm Offshore Research Partners and started online publications Expert Witness Guru and the Expert Witness Chronicle. He is an attorney who has dedicated his career to researching and publishing issues related to expert witness services.