Researching expert witnesses – do your homework!
Several things can turn my otherwise good day at the office upside down and flood me with a sense of panic (see my suggestions on how to defuse panic here). Unfortunately, most of those things occur right after one of our attorneys walks into my office with a certain look on his face. I’m sure you’re familiar with the look because it screams, “I’ve waited until the last minute again and need you to do something to fix it.” I really want to scream back, “Why did you wait so late in the case to bring me in with unrealistic deadlines?” but that’s out of the question. I get the details and jump feet first into the burning building, prepared to do whatever it takes to get the job done.
One of the worst things an attorney can do to a paralegal is wait until the last minute to request an expert witness. It takes an enormous amount of time to research, locate, interview and retain expert witnesses who will not face Daubert challenges. The worst thing you can do is retain an expert witness to discover that the expert’s testimony will not be allowed at trial because the witness’s opinion does not meet the Daubert standards for an expert.
Unfortunately, you won’t always have weeks or months to find an expert witness. In a perfect world, you’ll begin searching for your expert witness at the beginning of a case so you have sufficient time to vet the expert thoroughly and use the expert to his or her fullest potential. Retaining a credible expert witness early in the case has several other advantages. Your expert can help you understand the technical details of your case as well as examine other evidence in the case and evaluate the expert witness that is being used by the other side.
Finding experts quickly
There are no true shortcuts for locating an expert witness. Regardless of the amount of time you have to locate an expert witness, you must ensure that the expert is qualified to testify and that the expert’s opinion is properly researched and documented within the specific field of study. If not, you run the risk of the judge not allowing the expert’s testimony to be used at trial or, even worse, the expert’s testimony hurting your case on cross examination.
To help me find expert witnesses when the attorney asks for one at the last minute, I keep a list of expert witnesses that we’ve used in the past on various cases. I keep their resumes and reports in a file for quick access. If possible, I like to keep copies of their resumes in Word format because it allows me to search the database for key words to simplifying and speed up the process. If the resume is not in Word format, I type a short summary with a list of key words to save with the expert’s file.
Another way to find an expert quickly is to look at files the firm has handled in the past. For example, if I’m searching for an expert on spinal cord injuries, I would search for medical malpractice and personal injury cases that involved spinal cord injuries. Even if we didn’t retain an expert witness, the attorney’s notes often refer to doctors or other experts that the attorney consulted with regarding the case. If the attorney had positive notes on the person, this could lead to an expert witness or, at the minimum, a referral from that person for an expert witness.
Referrals are an excellent way to locate a credible expert witness. A referral from a doctor who you trust, for instance, is often a good starting point to find an expert witness if you’re in a time crunch. Referrals from other paralegals and attorneys are also a great way to find an expert witness in a hurry. If I need an expert in a field that I am not familiar with and our firm has never handled a similar case, I do a quick search for cases similar to mine. If the outcome of the case benefits our client, I call the attorney or paralegal for that specific party. Most attorneys and paralegals are happy to give you information about the expert witness they used to win the case. They may also give you valuable information about the expert witness that you may not find in a typical search such as how the jury reacted to the expert.
As a last resort, I’ll conduct a general internet search or use an expert service such as Technical Advisory Service for Attorneys (TASA), Expert Witness Network, LawInfo or Expert Witnesses Online to locate an expert. Expert witness testimony has become a lucrative business. If you use a service to locate an expert witness, you must still vet the expert yourself. Never rely on a service to perform this duty for you or you may see your case go up in flames at the trial because you didn’t do your homework.
At the very least, in addition to interviewing your witness, you should:
- Research the expert’s credentials (i.e. read the expert’s website, current and previous resumes and curriculum vitae, social networking sites, bios on other professional websites, etc.)
- Call every reference provided by the expert and interview the reference thoroughly.
- Verify credentials by calling to confirm the expert’s educational background, licenses, specialty certifications, disciplinary records, authored materials, etc.
- Review case-related information such as previous court opinions involving the expert witness. Read the testimony from the case if possible. The Daubert Tracker is very useful for this. I also search for news stories that have quoted the expert.
- Don’t forget to check to see if the expert has testified before Congress or another governmental body on the subject at hand.
- Search for discussion board posts, blogs, law review articles, public records, and any other information your expert may have posted about the related subject.
As you can see, vetting an expert is a time-consuming process that cannot be rushed; however, when the attorney waits until the last minute, you must make it happen somehow. This is when delegation and teamwork proves to be your best chance at making the impossible possible. Put together a team, assign tasks and meet at the end of every day until you have your expert located, vetted, and retained.