Expert Witness Due Diligence: A Complete Guide to Background Checks and Credential Verification

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 due diligence through an expert witness background check to ensure that the expert’s credibility is sound from both a professional and ethical standpoint.

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 the expert’s publications, presentations, news articles, and lectures, as well as 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 the 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. It is never too early to consider the importance of your expert successfully withstanding an evidentiary challenge. If the opposing party seeks to exclude the testimony of an expert witness, the standard is dependent on the jurisdiction.