Expert Witness Blog
In Finding and Researching Experts and Their Testimony, authors Jim Robinson David Dilenschneider, Myles Levin, and Nathan Aaron Rosen write:
Several of us got into some discussions about the need to research experts thoroughly. During those discussions, we exchanged our knowledge of not only the resources to search but also effective strategies on how to use the information found. In the end, we realized that none of us was aware of a truly-comprehensive resource that detailed all the various ways to learn about experts. Accordingly, in the spring of 2007, we wrote the First Edition of this White Paper.
In February 2009, we updated the paper to highlight new resources that had emerged (as well as delete references to older, non-functioning sites), acknowledge new applications and strategies, and relate more failures to vet experts thoroughly.
In the past five years, technologies have changed dramatically, more sites have come and gone, and – of course – failures to vet continue to occur. Accordingly, we have taken it upon ourselves to provide a detailed update to the paper, resulting in this Third Edition.
We hope you find this White Paper to be a valuable resource and return to it regularly.
Introduction
Many years ago, an Arizona trial court judge overturned a jury’s verdict, ordered a new trial and sanctioned the defendant over half a million dollars because the defense expert had lied about his qualifications. Importantly, the judge based his decision to sanction on his expectation that the defendant would have conducted thorough research on its own experts:This court opined that defendant . . . knew or should have known of the falsity of its own expert’s credentials, but could not conclude that [defendant] in fact knew. This court has been persuaded by plaintiffs’ motion for reconsideration that “should have known” warrants sanctions.”
Expert witnesses are used in a wide range of litigation and their opinions are often viewed as critical – frequently making or breaking a case. As a result, many trials have turned into a battle of the experts. Yet despite their importance, few attorneys take the time to utilize the proper resources to find the right experts, evaluate their credentials, and/or assess the admissibility of their testimony.
The purpose of this article is to suggest various types of online resources that can be used to find experts, gather information about them (whether one’s own or the opposing party’s), and assess the admissibility of their testimony – as well as tips and strategies on how the information uncovered might be utilized. In addition, to assist in research efforts, a few (but certainly not all) potentially-relevant websites have been included. However, note that because many of the resources discussed (e.g. agency opinions, verdict reports, etc.) are available from a wide variety of free and commercial vendors, such as LexisNexis® (see, e.g., Lexis Advance ), Thomson Reuters (see, e.g., WestlawNext), and Bloomberg Law®, generally such providers are not constantly repeated as possible sources of information, unless their being a provider of that specific type of information is not manifestly obvious.
One final note of caution: be wary of outrageous marketing claims. Some vendors will tout that they can provide you all of the information you need to identify, select or impeach an expert. Nothing could be further from the truth. In fact, some products marketed via such claims actually miss relevant, and relatively easy-to-find, information about many experts – providing you with far less than what is promised. The simple upshot is that, although several fairly-comprehensive products, platforms and services exist, we have yet to find one that does it all. So when evaluating resources, adhere to the well-known maxim: “if something sounds too good to be true, it probably is.”
Finding a Potential Expert
A brief word of advice on the subject of finding a potential expert: do it as soon as you possibly can. From precluding the opposition, to helping frame the issues, to assisting in evaluating the opposing expert, the benefits to be gained from early retention are significant and worth the effort.
A. Learning about the Subject Matter In order to know what questions to ask a potential expert, one should conduct some basic investigation into the relevant topic of expertise. Of course, such research might also lead to the names of potential experts in that field.
Library Websites a. Online Catalogs Library websites are an excellent place to begin the search to find information about the subject matter and to find potential experts. Start by searching libraries’ online catalogs for books and journals on the subject at issue. For example, a search for “handwriting identification” on the Library of Congress’s website will return the names of potential experts, the title and date of their publications, and cross-references to other works by each author. Pay particular attention to this information – someone who writes extensively on the subject at issue may make an ideal candidate to serve as an expert.
Possible Sites: www.Libdex.com; catalog.loc.gov; www.worldcat.org
b. Commercial Databases (Free Access)
In addition to making their own catalogs available online, many public libraries also offer free access to some external “pay” databases. Ordinarily, all you need to access these databases from a computer is a library card and an Internet connection. Just a few of the types of databases offered by some libraries include:Academic Search Premier ProQuest Newspaper / Periodical Articles Reference USA Business Source Premier EBSCO Business Directories (e.g. Standard & Poor’s,
Hoovers, etc.)
Gale’s Biographies JSTOR Physician’s Desk Reference Marquis Who’s Who
Medical Websites The National Library of Medicine (“NLM”) is an excellent place to find materials in all areas of biomedicine and healthcare, including biomedical aspects of technology, the humanities, and the physical, life, and social sciences. According to its website, the NLM houses millions of items – including books, journals, technical reports, and manuscripts. Moreover, the site, along with its associated services (i.e. “PubMed” and “MedLine Plus”), contains links to medical encyclopedias, full-text news stories, articles, and free publications, as well as information on how to order those materials.In addition, every branch of medicine has its own professional association with an accompanying website, oftentimes offering article databases and membership directories. The website of the American Board of Medical Specialties is one of the best places to look for links to these associations.
Possible Sites: www.nlm.nih.gov (PubMed/MEDLINE); www.webmd.com; www.abms.org (requires registration); www.boardcertifieddocs.com (charges organizations to verify physician certifications)…
Articles
Many legal portals provide access to articles by legal professionals that discuss expert witnesses. For example, law.com, the legal portal of American Lawyer Media (“ALM”), provides access to full-text articles from its various publications – but only to its subscribers (while also providing synopses of those articles for non-subscribers and the opportunity for them to view a limited number of articles via free registration).The Index to Legal Periodicals & Books (H.W. Wilson) and Legal Resources Index (electronic version of Current Law Index (Gale) are searchable electronic indexes of legal periodical articles containing information about experts. Most of the information consists of article citations from major law reviews, bar association journals and legal newspapers. These citations include an article’s title, author, source, and subject headings. Various indexes to legal periodicals, along with the full text of articles can be accessed from many library websites and commercial providers.
Articles written by experts may also be found through Google Scholar. Launched in 2009, this service provides a way to broadly search for scholarly literature, including articles, theses, books, abstracts and court opinions. These documents have been collected from academic publishers, professional societies, online repositories, universities and other websites. Google Scholar may be searched with Boolean, proximity, and phrase searching, as well as through its advanced search function.
Some expert witness directories such as JurisPro and Hieros Gamos provide free access to articles written by experts, and many trade associations publish online newsletters and some provide either the full text of or extracts from articles. For example, the Accident Reconstruction Communications (ARC) Network, a professional organization for those in the accident reconstruction industry, has a monthly newsletter with articles authored by experts. This website also has an active discussion forum that includes opinions posted by various accident reconstructionists.
Jim Robinson, Esq.
Attorney, Past Education Chair for the California State Bar Law Practice Management and Technology Section, Founder of JurisPro Inc.
David V. Dilenschneider, Esq.
Senior Director, Client Relations LexisNexis
Myles Levin CEO
Daubert Tracker
Nathan Aaron Rosen Library Research Manager Dechert LLP