Due Diligence on Expert Witnesses: Assume the Worst
For expert witnesses, websites abound that help to connect a particular specialty with the trial attorneys who may need someone to speak about pediatric cardiology, warning labels, or the particulars of earthquake insurance.
Fewer in number are the people who can help sort through the experts’ backgrounds – people who can help prevent an unanticipated attack on the credibility of the expert witness.
Imagine this nightmare: from an ocean of choices, you find the expert who comes well recommended after a small number of successful appearances. He seems terrific and you’ve decided to depend on him heavily. Once his report is in, you find out that he left an academic post nine years ago under a bit of a cloud. Last year, he and his engineering partners experienced a messy business divorce, and allegations of trade-secret theft were exchanged.
This sort of information surprise happens more often than we like to think – the assumption that because someone is already employed by you or has been used successfully by someone else – that he has been properly checked out. We wrote about this issue in our post Due Diligence for Current Employees.
What to do with this news about your expert? Neither problematic item was on your expert’s resume, but the other side may get wind of this information. Only when you know what they may know will you be able to anticipate fully the questions that will follow.
Good due diligence takes time, even self-due diligence. A quick Google search on your own name won’t cut it, as we’ve outlined in our post, A Fact Finding Test for Lawyers.
Ask yourself if you’re an expert: What controversial cases are in your past that could be seized on and used by the other side against you? Is there anything else in your past you would find a little awkward to talk about? If it’s findable through public records or interviews (and if the stakes are high enough), the other side may uncover it. We provided a look at how much there is to find on people in public records in our post Scratching the Surface.
What follows is an incomplete but still useful starting point for thinking about potential problems in an expert’s past, especially those that won’t jump out at us with a quick and dirty search for a criminal record.
- Resumes. These can be fiddled with when people stretch dates of previous jobs. The resume indicates a job starting a couple of months earlier than it really did – just long enough to conceal the job held for a couple of months that ended in a quietly-arranged departure to avoid unpleasantness. You want to know what that unpleasantness was.
- Litigation in a place lived in long ago. You have a New York-based expert who tends to restrict work to the Northeastern U.S. But ten years ago he spent eight months in Dallas. A good background check would look at upper and lower court records in Dallas County and perhaps adjoining counties if he lived or worked in any of those. On line searches won’t suffice, because most of the public record is not memorialized on line.
- Difficulties with co-workers or colleagues. Much of this kind of thing never makes it on to the public record, but background interviews can turn over good information. Some of the best interviews come with people not offered as references and who may have worked with your expert at a company or institution not listed on the resume.
- Conflicts with other experts in the field. Were there debates at conferences, tiffs in journals or other kinds of conflicts with other experts in the field?
Remember this basic principle of sound due diligence: if you don’t know who did the report and how it was done, assume the worst – that no report was done at all.