Expert witnesses play an integral role in the litigation process. From consulting on a case during early case assessment and supporting the development of your legal strategy to testifying at a deposition or trial, an expert’s knowledge and advice can make or break your case. No matter the type of expert, it’s critical that attorneys conduct an expert witness background check to ensure that the expert’s credibility is sound from both a professional and ethical standpoint.
Table of Contents
1. The Importance of Background Checks for Every Expert
2. What to Look for When Verifying an Expert’s Credentials
3. Why Does an Expert Witness’s Litigation History Matter?
4. How to Conduct an Expert Witness Background Check
The Importance of Background Checks for Every Expert
Whether you find your expert witness through an online search or a service like Expert Institute’s Expert Search, it is important to conduct a credential check on every expert witness to safeguard your case. Vetting a potential expert before retention may reveal compromising information that could dissuade you from hiring that particular expert. Similarly, if you have already retained an expert, running a background check may uncover something in their history that you need to address before cross-examination by the opposing counsel.
A background check on your opposing expert is just as crucial. Finding critical intel on an opposing expert can help you attack their credibility and persuade a jury that their testimony is flawed, which the jury can take into account when reaching a verdict.
What to Look for When Verifying an Expert’s Credentials
To conduct a successful background check on an expert witness, attorneys should review several areas to ensure they gather the necessary information to protect their case or uncover gaps in the opposing expert’s credibility.
1. Professional Credentials
Under the Daubert standard, an expert witness is considered qualified to testify if their specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. As such, attorneys need to verify that their expert’s professional background, including education, employment history, training, and overall experience, is strong and aligns with their opinion to prevent the opposing counsel from undermining the expert’s credibility.
The same is true for opposing experts. Delving into an opposing expert’s professional credentials may reveal that the topic they are testifying on is outside of their specialty, making it easier for you to prove to the jury that their testimony is irrelevant to the case at hand.
2. Professional Licenses and Board Certifications
Although it may appear to be a given that a practicing professional possesses the required licenses and certifications for their specialization, this is not always the case. It’s also crucial to ensure that an active license is not due to expire shortly. If the expert has the appropriate license, will the renewal date interfere with your case? If that’s the case, inform your expert ahead of time to ensure that the license does not expire while your case is still ongoing.
Furthermore, board certification of an expert in their field enhances their credibility and indicates to the jury that they are well-versed in their specialized knowledge.
3. Criminal Record
An expert witness’s credibility can be severely damaged by a criminal conviction, especially if it’s related to their line of work. Even if the past crimes are unrelated to the expert’s professionalism, they can still influence the jury’s perception of the expert if they are brought up by the opposing counsel. Conducting a criminal background check or verifying the absence of any criminal record is crucial to ensure that the jury views your expert as an honest, ethical, and law-abiding professional.
4. Disciplinary Actions, Board Sanctions, and Malpractice Claims
If criminal charges can harm an expert’s credibility, so can a civil lawsuit involving professional misconduct. Depending on the expert’s occupation, they may be more susceptible to malpractice suits, especially if they’re a medical professional. When vetting an expert, the key factor to focus on in these cases is the outcome. Was the expert found to have acted negligently? Or did the court find in favor of the expert and dismiss the claims?
To fully uncover an expert’s malpractice history, attorneys should carefully review every complaint filed against the expert and research every motion filed during the litigation. Thoroughly examining each claim and motion can provide a comprehensive understanding of the evidence against the expert. This can help determine whether the malpractice actions may impact the expert’s proficiency within their specialty as it relates to your case.
Attorneys should also research disciplinary actions and board sanctions against the expert. If the expert has been reprimanded or sanctioned, it can speak to their professionalism, and the jury may doubt their expertise and skills. By uncovering this information before trial, attorneys can build a strategy to protect their expert’s testimony or use it to cross-examine an opposing expert and undermine their competence in a particular field.
5. Memberships & Associations
Being a member of a professional community is significant for many careers, whether it is to stay up to date on the latest research or to network with like-minded professionals. Involvement in professional affiliations, like memberships and associations, can strengthen an expert’s credibility. However, it can also have the opposite effect, depending on the case facts, and may demonstrate potential bias. For instance, if the association is controversial or shows that the expert leans towards a certain viewpoint, it may cause the jury to perceive the expert as less impartial, which could affect their testimony.
6. Publications, Presentations, News Articles, and Lectures
Similarly to how memberships and associations can show bias, anything the expert has authored, spoken about, or participated in can also potentially demonstrate a conflicting viewpoint. These outlets can also reveal a position that conflicts with the expert’s opinion. For instance, if a medical expert claims that a certain procedure is the standard of care for a medical condition, but has been quoted in a news article saying something different, this information could be used during cross-examination to challenge the expert’s testimony.
To ensure that an expert’s research aligns with their testimony, it’s essential to verify whether their conclusions support their expert opinion. Attorneys should thoroughly examine not only the expert’s publications, presentations, news articles, and lectures but also any clinical trials, grants, and patents they have received. It’s important to ensure that these sources of information are consistent with your case theory and do not conflict with the expert’s testimony. While having an expert with research accepted by their professional community can be beneficial for your case, it’s important to conduct a comprehensive review to prevent any surprises during trial.
7. Deposition & Trial Transcripts
Another area to look into for conflicting opinions is an expert’s prior deposition and trial transcripts. Their testimony in other cases can give you insight into whether their opinions are solid, consistent, and reliable. Transcripts can also reveal a previous opinion that contradicts the opinion they are offering in your case. As such, it’s crucial that you dig through these court transcripts and records to investigate whether all of an expert’s opinions are consistent throughout their history as an expert witness.
8. Litigation History
Last, and perhaps most revealing, is an expert witness’s litigation history. You’ve done the work and looked into the expert’s professional credentials and background, but their litigation history can tell you more about any Daubert/Frye challenges the expert has faced and if they were able to successfully withstand an evidentiary challenge.
In the next section, we’ll dive into the details of litigation history and look at the areas attorneys should pay close attention to when considering an expert’s litigation experience.
Why Does an Expert Witness’s Litigation History Matter?
An expert witness’s litigation history reveals a plethora of information, such as details about previous cases they’ve testified in, the case outcome, any challenges they’ve faced, how the court ruled in response to those challenges, and much more. Digging into an expert’s litigation history also gives you insights into whether the expert tends to testify more for the plaintiff or defense. You can also find information about the parties involved in prior cases, including attorneys, defendants, organizations, hospitals, and more. For example, maybe the expert has testified frequently for an attorney or for a particular hospital. In that case, you could make the argument that the expert is simply a hired gun, undermining the expert’s credibility by positioning them as a witness who will say whatever is necessary to get paid.
Collecting data on an expert’s entire litigation history can be especially difficult without the right tools. Luckily, Expert Institute’s comprehensive expert due diligence tool, Expert Radar, includes a complete breakdown of an expert’s litigation history. With Litigation Analytics, attorneys receive a visual snapshot and details about an expert’s prior case involvement, all expert challenges, the grounds of challenge, whether an expert’s testimony was admitted, criticized, limited, or outright excluded, and the outcome of every case.
Attorneys can use this data to either protect their case from opposing counsel attacks by collecting this information on their retained expert(s) or capitalize on compromising data on the opposing expert(s) to launch a collateral attack and turn the jury against them.
You can learn more about the data and insights available within Expert Radar’s Litigation Analytics in our iQ talk:
How to Conduct an Expert Witness Background Check
Now that you know what expert witness qualifications and information to watch out for, how do you go about actually finding that data? Your first option is a focused internet search to find details about your expert’s professional credentials. You can also browse through their social media or personal website and comb through their posts for potential conflicting opinions. Reviewing old resumes and comparing them to the expert’s current CV can identify any differences and how their credentials may have changed over time. Unfortunately, this option requires a lot of dedicated time and effort and even then the information you collect on an expert may be out of date by the time you reach trial.
On the other hand, there’s an easy solution that takes the work of researching an expert off your plate—Expert Radar. Our AI-powered expert vetting solution gathers critical intelligence on any opposing or retained expert, including their professional credentials, litigation history, and credibility. With Expert Radar, attorneys also receive 24/7 alerts whenever new information is uncovered, allowing them to stay ahead of the opposition.
When you need to vet an expert witness, conducting a detailed background check and researching the expert can be an arduous task, taking countless hours to complete. Utilizing tools like Expert Radar for enhanced expert due diligence, you can automate and streamline this tedious process so you can focus on building a strong case and get a winning edge in the courtroom.