Keeping The Expert Honest

Re-inventing themselves is what many of the self-anointed "experts" are really experts at achieving. Your job as the independent or staff legal investigator is to make sure that your team is not on the receiving end of one of these charades.

Experts tend to be of two groups. The first is the legitimate expert who is truly fluent in the proclaimed field. The second is the one who attempts to join the brotherhood without qualification. They attempt to enter the outsized role of Shahanshah when they have failed to attain the required experience, education, training or a combination of the three. For the sake of brevity, let me share with you the Black's Law Dictionary definition of an expert: "One who is knowledgeable in specialized field, that knowledge being obtained from either education or personal experience." Midtown Properties.Inc. v. George F Richardson, Inc ., 139 Ga. App. 182,228 S.E. 2d 303,307.

Black's then goes on to give a definition for expert testimony. This is the investigator's marching orders: "Expert testimony--Opinion evidence of some person who possesses special skills or knowledge in some science, profession or business which is not common to the average man and which is possessed by the expert by reason of his special study or experience." Board of Ed. of Claymont Special School Dist. v.13 Acres of Land in Brandywine Hundred . Super., 11 Terry 387, 131 A. 2d 180, 184. Testimony given in relation to some scientific, technical or professional matter by experts, i.e., persons qualified to speak authoritatively by reason of their special training, skill or familiarity with the subject. Evidence of persons who are skilled in some art, science, profession, or business, which skill or knowledge is not common to their fellow men, and which has come to such experts by reason of special study and experience in such art, science, profession, or business. If scientific, technology, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise . Fed. Evid. R. 702, 703²

Dealing With Non-Believers

All too often, the single largest obstacle you will have to overcome is your own client. If your attorney client is resistant or has a weak stomach, you have to sell him or her on this portion of the investigation. You, as well as the attorney, have an ethical and moral obligation to not take the facts as they are presented to you. You must make an effort to reveal any false information. Re-mind your client of this. Also, re-mind the client of the word malpractice. In other words, your failure to verify an expert's credentials could cost you and the attorney a lot of money!

Investigator Employment Act

If you are not adverse to making money, you should continue to read this article. I am sure that you have heard the saying, "No good deed goes unpunished." This is especially true in our business. If you want your motives examined, your integrity scrutinized, your judgment questioned, do something for free. Everybody expects you to be a mercenary. Nobody expects Mother Theresa.

Experts who are paid for their time have no qualms about jumping back and forth for the prosecution, defense, plaintiff or defendant. Their theories are for those who reach them the quickest with the checkbook.

Rule #1: Experts who work for free often have a hidden agenda. The experts who are testifying or rendering opinions at deposition without being paid endanger their credentials, without exception. They should always be closely examined. There are only a limited number of possibilities when an expert would work for free.

Basic Background Investigation on
Expert Witnesses

As an investigator in either criminal or civil cases, you may be provided with the names of the expert witnesses which the opposing side wants to use. These experts can range from real estate brokers to child and family psychiatrists. Although the witnesses Will be "experts" in a wide range of fields, it is not so important that you become an expert about the field itself in order to impeach them, but it is crucial that you become an expert about the expert! The most important task you will have will be to investigate the opposing counsel's expert witnesses. A good "debunking," in the best case scenario, can prevent a case from going to trial, as well as providing a great way for your attorney to impeach the expert while giving a deposition or testifying in trial. You should also use these methods to check out your own team's experts---a deposition or trial is no place for "surprises."

It should become routine to subpoena a wide range of materials and records for each and every expert witness the opposing side chooses. Some of these documents will be obvious: for example, a current copy of the expert's resume or Curriculum Vitae (CV). Obtaining the CV of the expert is the best place to start the investigation. Checking the expert's credentials should be considered the most important piece of background research. The CV deserves your most critical attention because all the "clues" to the expert's background, such as education, license(s) and prior work and research experience, will be pro-vided there. Your focus should be on the expert's statements about past employment and education as quite often they can be proven to be misleading, and sometimes blatantly fraudulent. Also, be sure to check out all the professional organizations to which the expert claims to have an affiliation or membership. Check with that organization as to their membership status. For example, should the expert claim to be a member of the American College of Forensic Examiners (A.C.F.E), call their central administration office and inquire about the "member." They have always been honest and forthcoming with information.

I have also found very useful suggestions outlined in a previous article by Anthony M. Golec, CLI, in the August 1995 issue of The Legal Investigator regarding the American Board of Medical Specialties (AEMS). This organization can be used to check out any expert claiming to have a specific medical specialty. The Official ABMS Directory of Board Certified Medical Specialists is a must in your library to aid in the background research of medical specialists.³ You should find the various professional organizations very cooperative when submitting inquiries to them. The professional organization itself has nothing to hide. However, you may discover the "member" does. Even though your focus should be on the expert's educational and employment claims, should anything strike you as "funny," it is worth checking out.

Aside from the CV of the experts, you will also need to subpoena additional materials regarding their work, such as published articles, lists of their past speaking engagements, and the fees charged, TV or radio program appearances and copies of such. Materials you will need regarding this expert, and your case specifically, are any and all notes the expert took, all correspondence, invoices, insurance hills, and all video or audio-taped interviews regarding the case. 

Another help to your team will be finding out if this expert is a "professional witness." Everyone knows that it is routine to ask a witness, particularly an expert, if they have ever been a witness in a lawsuit before. It is this question that can provide some great ammunition due to the fact that the jury is not going to be receptive to a "hired gun." The attorney with whom you are working can bring up the witness's extensive career as a professional witness who is willing to testify to anything for the right price. This being the case, find out where, when and the outcome of cases in which this particular expert has testified. Get the transcripts of the expert's testimony whenever possible. Also, interview the attorneys who have retained the expert, or have had cases against this expert, to find out the expert's "witness style," and to find out if there are other victims who have suffered at the hand of this witness's "expertise."

With the onset of the information superhighway, many of these research techniques have been made easier, more efficient and more cost-effective, (music to any law firm's ears). With the aid of databases which are literally at our fingertips, the "cyberinvestigator" can go even further when investigating an expert. Some of these new tools include running the witness through NEXUS check for any statements which can be attributed to the expert. America OnLine (AOL) should be scanned, as well as for any new database in any area the expert lists on the CV to have been employed or have done research. A general inquiry can also be made on World Wide Web (WWW) as to any information users may have about the expert's history or research style.

Expert Affidavits

Attorneys love affidavits. So do I! When you see an affidavit attached to a legal document, your alarms and whistles should shake you right out of your chair. These documents are formally called "Testifying Expert Declarations." The first thing that should be done when you come across one of these is the attorney for whom you are working should call the experts who supposedly signed this and ask the expert if he/she has been engaged as a leading expert in this particular case. By doing this, you will often save your client much expense because in some cases, the expert was not asked to testify and has never heard of this particular case. Furthermore, when it is discovered that the affidavit from an-other case has been pirated, the expert will be really "ticked." With luck, the expert will be so "ticked" that an affidavit will be given stating that the use of the other affidavit in this case is unethical, mis-leading and a general travesty of justice. The judge who hears about this attempted hoodwinking will usually shotgun the offending party straight into the clutches of the appropriate Bar disciplinary group.

I have also seen attorneys use the affidavits of deceased experts. This is the greatest of all legal tricks. Getting experts to write affidavits from beyond the grave is truly a stroke of legal genius, but not likely to impress a judge!

Cradle to Grave Investigations

Let's pretend for a moment that you have a blank check to verify the expert's credentials. Well, we might as well assume that the client has gone native and joined a cult and we are at the front of the line for the client's benevolence. In any event, it is nice to hope.

Cradle to grave means that you are going to verify the expert's personal, professional and not so professional background. Even the expert's family can become can-non fodder. We have to be very careful here. The primary questions have to be: What is fair, and what is intrusive?

Fair

Intrusive

These are the basic areas to explore. However, never let your common sense become overruled. Always remember the Golden Rule: "Do Unto Others As You would Have Them Do Unto You."

As you are aware, every case is different. If you have a defendant who is innocent, you should never let politeness or kindness get in the way of a good investigation. But, if on the other hand, the experts on the opposing side are just doing their professional best to render an objective opinion, you should not treat them as the reincarnation of the "Marquis de Sade!"

Transcripts

The single most damaging aspect of an expert's testimony is often found in history books---always get copies of an expert's prior testimony. If there was ever a fertile area of investigation, this is it. Experts who testify frequently, (especially young and inexperienced ones) often improve their qualifications from case to case, without actually having done so.

There is nothing more damaging to a testifying expert than having an attorney start with, "So, Dr. Smith, when you testified in the State of California v. O.J. Simpson case, you lied, didn't you?" When you hear your attorney utter that question, it is all downhill from there.

Conclusion

Many travesties of justice could be stopped long before an innocent person is brought to trial and, too often, wrongly convicted. If a thorough investigation had been conducted of the state's "star" (expert) witness, much grief could have been avoided. It does not matter one whit what the alleged field of expertise is. What matters is that the person making the claim to be "the expert," be it a blood spatter expert or psychiatrist, is thoroughly checked out by the investigative team.

Close attention to one's qualifications tends to make the unqualified extremely nervous. When you begin seeing numerous "Motions to Quash," you can rest assured that you are on the right track!

Endnotes
1 Black's Law Dictionary. Fifth Edition. West Publishing Co., St. Paul, Minn. 1979 at 519
2 Black's Law Dictionary. Fifth Edition. West Publishing Co., St. Paul, Minn. 1979 at 519
3 Golec, Anthony, CLI, "Utilizing The ABMS In Medical Negligence Cases," The Legal Investigator , August 1995, published by the National Association of Legal Investigators, Inc. P.32

SUBPOENA CHECKLIST

Author's Note

I am often asked, "Why subpoenas? Why not normal discovery channels?" There are numerous reasons why I, and my clients, prefer using subpoenas. Primary among them are:

Reprinted from The Legal Investigator, Vol. XXV, No. 2, November 1995