Although finding a qualified, experienced, and knowledgeable expert who is free of conflicts is certainly the goal, it is only half the battle. Before retaining an expert, there are certain boxes that need to be checked to ensure that the expert is of the most utmost caliber from both a professional and ethical standpoint.
When an expert is offering testimony on the stand, anything in their background—from Daubert challenges to unpaid parking tickets—can affect their credibility. That’s why the most effective background checks go beyond confirming an expert’s CV credentials. Expert witness background checks, like those conducted by the Expert Institute, are an increasingly useful tool when deciding on an expert. By having the necessary research and vetting process conducted beforehand, you can avoid unwanted surprises that could affect the expert’s performance, and hence, the outcome of your case.
Below are a few factors that warrant close inspection when determining if a potential expert is the right fit.
1) Criminal Record
A criminal record may be the last thing one thinks of when discussing highly-trained and educated professionals—which is exactly why it should be the first thing to investigate. Past crimes, especially those related to one’s character for truthfulness, or even worse, ones related to the witness’s profession, would be an instant demolishment to any expert’s credibility. A simple solution to this irreversible damage is to conduct a criminal records check to ensure there aren’t any skeletons in your expert’s past that would imply they are anything less than honest, ethical, and law-abiding.
2) Board Sanctions and Malpractice Claims
Though not the same as a criminal conviction, a civil lawsuit could be just as damaging. The outcome of any malpractice suit, and whether the expert was found to have acted negligently, is the most critical question. Depending upon an expert’s profession (and sub-specialty), they might be more prone to being sued. The mere number of pending malpractice suits is certainly important, but it does not necessarily tell the whole story. Claims could fail to be proven in court. Cases may routinely get dismissed.
In order to fully gauge an expert’s malpractice history, it is worth researching each complaint and any other motion submitted throughout the course of the litigation. Even for cases that do not go to trial, it may be possible to get a sense of the evidence against the expert, and if the malpractice actions are merited claims that raise red flags.
If an expert belongs to a profession for which a license or other certification is required (such as physicians, accountants, attorneys, etc.), their history can also be obtained through the board. Whether a professional has been sanctioned, reprimanded, or had their license outright revoked, is important to obtain that information early on and determine the most effective strategy before retaining or disclosing the witness.
3) Professional Licenses and Board Certifications
But in order to have a history with the board, one must have been a part of the board to begin with. While it seems intuitive that a practicing doctor or lawyer is licensed to practice, there are numerous cases in which a professional fails to obtain (or renew) the requisite licenses. Whether an expert currently possesses the necessary licenses and certifications to engage in their line of work is a question that should be answered before even thinking of retaining them.
4) Professional and Corporate Affiliations
An expert’s affiliations are also important and may work as either an advantage or a cause for concern. If an expert is engaged in a number of professional affiliations, such as sitting as a consultant on a board or teaching at an educational institution, these may bolster their credibility and professional standing. However, it is equally important that an expert appears impartial and fair. Some affiliations may suggest otherwise, such as those that involve political or controversial stances. Exactly how an expert’s affiliation can play out in litigation should be assessed on a case-by-case basis, which is why all of their affiliations should be known prior to retaining them.
5) Conflicts of Interest
Similarly, conflict checks are one of the most critical components of the expert vetting process, particularly in relatively small fields in which many professionals know each other. Conflicts of interest usually arise when dealing with issues of confidentiality or conflicting duties of loyalty to previous clients. For example, a potential conflict of interest may exist if the expert has been formerly employed by or previous hired as an expert for the opposing side. The main inquiry for the court is whether the expert’s affiliations with the adversary granted him access to confidential information, and if so, whether that can prejudice the party. If a court finds that such a conflict exists, the expert can be disqualified from testifying or otherwise contributing to the case, which is why conflicts should be investigated and addressed as soon as possible.
6) Publications and Lectures
The world of academia offers experts the opportunity to put their knowledge and expertise on display. It also provides an opportunity for others to research their stances and opinions for potential impeachment. If your potential expert publishes written works or engages in lectures, you should ask yourself the following: Have they given opinions on the issues at play in your own case? And most importantly, are those opinions in line with your case theory? If the answer to the latter question is no, then this expert might not be the best fit. Even if the expert’s opinion has genuinely evolved, their prior words and statements can come back to haunt them on cross examination.
7) Prior Testimony at Depositions and Trials
Similarly, an expert’s litigation history and prior testimony provides useful insight and may indicate whether their opinions are solid, consistent, and reliable. On the other hand, if an expert offers a vacillating opinion on subject matter that is at issue in your own case, or worse, they offer an opinion directly in contradiction to your case theory, then their prior testimony operates as a gift to opposing counsel. And unlike an academic publications or school lectures, prior testimony is under oath. As such, it carries more weight and is harder to explain away. Therefore, an expert’s prior testimony should always be scoured to ensure their history is consistent with your case theory.
8) Daubert/Frye Challenges
Lastly, 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. Courts that follow the long-time standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) must find that the expert’s opinion is generally accepted within the scientific community. Courts that follow the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) will consider a non-exhaustive list of factors such as the expert’s methodology and reliability. Regardless of the standard employed, a court’s prior rulings as to the admissibility of an expert’s opinion should be thoroughly researched in order to gauge the likelihood of the expert surviving a challenge in your own case.
The quickest way to find the most comprehensive information on any opposing expert’s litigation history is by accessing an Expert Witness Challenge Study. Challenge Studies provide overviews of any expert’s gatekeeping challenge outcomes across federal and state jurisdictions. Each Challenge Study report provides in-depth explanations for exclusion or admission of testimony along with detailed analyses of an expert’s strengths and weaknesses. These reports are critical for assessing the integrity of the opposition’s experts, giving attorneys a leg-up when facing the opposition in court. As the old maxim tells us, if you know your enemy – you are almost certain of a victory. You can download a sample Challenge Study here.
Overall, in order to avoid the pitfalls of choosing an inappropriate or unqualified expert, background checks, in addition to a thorough vetting process, are necessary. At Expert Institute, a background check can be performed on a potential expert in just a few days. Obtaining a clean and reliable record on your expert makes it invariably easier to focus on the substantive issues and to ensure the best outcome for your case.