Why It’s Essential to Research Your Expert Witness’s Litigation History


Why It’s Essential to Research Your Expert Witness’ Litigation History

Often, your top choices for expert witnesses come to your case with experience testifying in similar cases or on related issues. While their experience can make it easier to integrate them into your own case, it can also present pitfalls if not adequately researched.

Common Mistakes in Expert Witness Research

Omitted or perfunctory research can often be prevented by accounting for the most common reasons it occurs. Proper preparation can ensure your team has the time and resources necessary to check your expert’s background thoroughly.

One of the most common reasons expert witness research is skipped is that the expert selection process is postponed until the last minute. Pressed for time, an attorney or legal team might choose the first expert that looks “good enough,” failing to consider the nuances of the expert’s background – to the detriment of their case.

Similarly, delegating responsibility for expert witness selection to someone unfamiliar with the case may result in poor results. The person who chooses the expert may not know what information to seek or how to evaluate it.

Finally, sourcing experts can present problems. The purpose of the expert witness is to provide insight into topics outside a lay person’s  knowledge base. As such, when it comes to choosing the right expert, attorneys may find that they don’t know what they don’t know. In this case, working with an expert witness service can help ensure your candidates are suited for the demands of the case at hand.

Points to Consider During Research

Even when you plan ahead, the time you have to research expert witnesses is limited. Focusing on a handful of key points during research can simultaneously alert you to potential angles of attack from opposing counsel and suggest the most effective means of countering these arguments while consistently portraying your expert witness as a trustworthy source of specialized information.

Plaintiff or Defense?

Expert witnesses with previous experience in court will have likely appeared on behalf of the plaintiff, defendant, or both on different occasions. Examining the pattern of appearances and the scope of the expert’s participation during each can reveal patterns that help you build a case in favor of your expert or defend the expert against attacks by opposing counsel.

For example, if your expert witness primarily testifies for plaintiffs in product liability cases (and you’re asking them to do so again), opposing counsel might attempt to paint your expert as a “hired gun” whose interest is in launching unjustified claims against hapless defendants. If your expert’s background is split more or less evenly between plaintiffs and defendants, you may wish to highlight this fact as evidence that your expert adheres to the facts and science involved rather than to any particular side’s view of similar cases.

Daubert/Frye Challenges Your Expert Has Faced

Challenges to an expert witness’ reports or testimony in past cases can provide a wealth of information on how best to present the witness and their work in your current case. They can also present a major hurdle if opposing counsel is more familiar with them than you are.

In addition to talking to the potential expert about their experience with Daubert or Frye challenges, you should also look up cases in which the expert witness was deemed both qualified and unqualified. The arguments and decisions in these cases can help illuminate potential areas of contention and suggest a path through them. For opposing counsel, they may suggest angles of attack.

Looking into an expert’s full litigation history can be a time-consuming task though. The quickest way to get your hands on this research is through Expert Witness Challenge Studies. A Challenge Study provides a comprehensive report on any expert witness, outlining their Daubert/Frye challenge history across federal and state jurisdictions. These reports include easy-to-digest graphical data on past litigation performance as well as summaries of events by grounds of challenge and outcome.

These reports help attorneys quickly identify an expert’s strengths or weaknesses in half the time of traditional research methods. The sooner the expert witness’s prior participation in Daubert or Frye challenges is examined, the more time your team has to prepare effective arguments in favor of admitting your expert’s opinions.

What Do Their Publications Say?

Many experts include a complete list of their published works in their CV. Library databases, medical databases, and even print book databases, like WorldCat, can all help your team locate previous publications by your potential expert as well.

Leafing through your expert’s publications can help you determine whether the expert has published on topics, methods, or issues related to their testimony in your case. It can also help you evaluate the effect their prior works may have on their current participation.

For example, an expert whose previous work tends to support the conclusions he or she is drawing in your case may be able to build connections between that work and this conclusion for the judge and jury. This can further strengthen the argument that their methods are appropriate and correct.

By contrast, an expert who has come to contradictory conclusions in prior publications needs to be prepared to discuss the discrepancies between that work and this conclusion – or risk having their own testimony undermined by opposing counsel.

About The Author

Dani Alexis Ryskamp, J.D., is a freelance writer and legal book critic with experience practicing insurance defense, personal injury, medical malpractice law, and criminal defense.