Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Expert witness research straddles the boundary between legal and non-legal research. It is an area in which librarians can often help win cases by using tools and methods not necessarily available to attorneys. One of the most effective ways law firm librarians can help litigators win cases is by doing sophisticated non-legal research. That leaves lawyers free to concentrate on what they do best: Analyze legal precedents, formulate trial strategies, negotiate and apply their knowledge of the law and the rules of evidence. Such a division of labor is logical, since attorneys often have little training in non-legal research. Librarians, on the other hand, do bibliographic, biographical, business and technical research all the time. They know how to find and use specialized databases in fields such as accounting, engineering, medicine and the social sciences. These non-legal research skills can pay dividends in many types of litigation. The litigator who faces an opposition expert witness needs to know as much as possible about the expert’s background. It is especially important to discover any relevant articles or books the witness has written, and to identify previous cases in which he or she has testified. Being familiar with an opposition expert’s writings and prior testimony can strengthen a litigator’s hand enormously. This is especially true if an expert’s earlier testimony or writings contradict his or her testimony in the present case. If so, the litigator may be able to use that knowledge to impeach the witness on the stand, or at least diminish his or her credibility. More generally, knowledge of an expert’s background or job history, academic degrees, publications, association memberships and conference participation can help an attorney decide on the best approach for the cross-examination. The obvious place to start is to identify the cases in which the expert has testified before. Reported cases are relatively easy to identify, but unreported cases are more difficult. Some unreported cases can be found by searching the expert’s name in legal news sources and jury verdict reporters; both types of databases are available on Lexis and Westlaw. (Westlaw’s National Expert Transcript Service can also help identify cases where particular witnesses have testified.) Experts with common names may be difficult to distinguish in these searches, but the effort is worthwhile because knowledge of the nature and extent of an expert’s previous testimony can provide a crucial advantage. The first step is to review an expert’s past testimony. For example, in a hospital merger case ( FTC v. Freeman Hospital, No. 95-5015, WD. Mo. 1995), an opposition expert presented a report he had prepared, evaluating the regional market for hospital services. During cross-examination, he asserted that the report was an original piece of research. However, investigation revealed that he had used the report in an earlier case, and was now presenting it again with only a few cosmetic modifications. When confronted with the evidence, he was forced to admit that he had tried to pass off the “recycled” report as original work specific to the case at hand, and his credibility was seriously damaged. Identifying an expert’s publications can be challenging, and it is here that a librarian’s non-legal research skills can make a big difference. Although articles by attorneys can often be found by searching the various law review databases, publications by experts in non-legal fields may be indexed only in obscure databases, or they may not be indexed at all. Librarians know how to find and search databases that index journal articles in specialized fields such as energy technology, food science and pharmaceuticals. Even so, some articles by experts appear in ephemeral publications such as pamphlets or newsletters that may not be indexed or readily available. In these situations, law librarians can use directories, indexes and databases to locate and contact special libraries that may have those publications. Librarians also know how to use tools like the Science Citation Index, which can help a litigator challenge an expert’s qualifications under the “peer review” and “general acceptance” test factors established by the U.S. Supreme Court in 1993 in Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579, 1993). FACT V. FICTION IN RESUMES For biographical background on experts, it’s always wise to check first for an existing “canned” biography. One of the best sources is Dialog’s OneSearch category PEOPLE, which includes the Biography Master Index and Marquis Who’s Who. If no pre-compiled biography exists, the researcher may need to create one from scratch unless the opposing counsel has provided the expert’s resume or curriculum vitae (But beware — these may omit key details, as mentioned below.) A news search for the expert’s name is critical, since it may reveal previously unknown business connections or involvement in relevant litigation. ChoicePoint, formerly CDB Infotek, can provide useful basic information such as the subject’s age, home ownership, bankruptcy history and a list of corporations in which he or she may have been an officer. A bankruptcy or a history of associations with failed companies may provide useful ammunition for a cross-examining attorney. An expert’s corporate associations may also reveal conflicts of interest. The drawback of news searches and the ChoicePoint database is that if the expert has a common name, it may be hard to identify the right person. One should beware of experts who omit key facts from their resumes. In a corporate merger case ( U.S. v. Rockford Memorial Corp., No. 88C20186, N.D. Ill., Western Div. 1989), an opposition expert neglected to include on his resume the fact that he had once worked as a paid consultant for one of the organizations on whose behalf he was now testifying. When this was revealed under cross-examination, the witness was discredited. Checking an expert’s academic credentials may uncover interesting discrepancies. Most university registrars will confirm — either by phone or in writing — basic data about a graduate, such as the dates he or she attended the school, the degree received and the field of study. If any of this information is at odds with the claims on the expert’s resume, the attorney can bring it up during cross-examination to cast doubt on his or her credibility. Experts may exaggerate or lie about their credentials, so one must always verify them. In an enforcement action brought by the Environmental Protection Agency and the Department of Justice against a municipality for alleged violations of the Clean Water Act ( U.S.A. and State of Illinois v. Village of Sauget, No. 88-5131, settled 1992, S.D. Ill.), the government’s main witness was a scientist who claimed to have a Ph.D. Her investigation formed the core of the prosecution’s case, and during the litigation she was aggressively outspoken, giving several interviews to the media. Soon after her deposition began, the government suddenly withdrew her as a witness when it was learned that she had never actually received a Ph.D. Without their main witness, the government quickly settled the case for significantly less than their initial multi-million dollar demand. The erstwhile star witness was convicted of a felony — lying under oath. DIGGING UP DISSERTATIONS The topic of an expert’s doctoral dissertation may also be worth investigating. The Dissertation Abstracts database provides short descriptions of most U.S. doctoral dissertations from 1861 to the present, and selected masters’ theses from 1962 on. Since 1988, the database has also included citations to British and European dissertations. Dissertation Abstracts is searchable online through Dialog, and the print and CD-ROM versions are held in many academic libraries. If the subject of the expert’s academic work is relevant to the pending litigation, it may be worth borrowing a copy of the dissertation through Interlibrary Loan, a nationwide cooperative program in which academic, public and specialized libraries participate. In addition, copies of some theses and dissertations can be purchased from commercial firms like UMI, located in Ann Arbor, Mich. If an opposition expert has an advanced degree, check on the subject of his or her independent research. In an appeal of a multimillion dollar damages award ( Colorado Interstate Gas Co. v. Natural Gas Pipeline Co., C84-139-B, D. Wyo. 1987), the opposition witness testified as an efficiency expert on damages. Before the trial, research revealed that his doctoral work had involved giving college students marijuana to evaluate its impact on the efficiency of their study habits. When asked during cross-examination about the subject of his doctoral research, the expert initially claimed he couldn’t remember. To “refresh his memory,” the attorney read out the title of the dissertation in court, knowing that the judge had a reputation for handing down harsh sentences to drug traffickers and was the father of a teenager. The large damages award was reversed. In addition to appearing in court cases and writing books and articles, experts may testify in congressional hearings or speak at industry conferences. Finding congressional testimony requires legislative research skills, and conference speeches can be even more challenging to obtain. Nevertheless, both approaches may be worth the effort, since an expert’s remarks can occasionally be a valuable resource in litigation. In some cases an Internet search for an expert’s name will yield a conference agenda listing the expert as a speaker But the texts of such speeches are rarely available electronically. More likely it will be necessary to borrow the conference proceedings through Interlibrary Loan, or to try to get a transcript of the speech from the sponsoring organization. Unfortunately, some speeches may only be available on audio tapes — or directly from the speaker, which is usually not an option. GETTING THE DIRT ON DOCTORS When confronting an opposition medical expert, the American Medical Association’s Doctor Finder database can often verify the expert’s credentials and affiliations; the database includes basic information on most U.S. doctors, whether or not they are members of the Association (to search for medical credentials of an expert, go to the “Doctor Finder” link at the main AMA Web site, www.ama-assn.org). One should also check any board certifications and hospital affiliations that the expert claims; an expert witness who is neither board certified in a specialty nor affiliated with a particular hospital should be regarded with skepticism. For more detailed biographical information on physicians, try the American Board of Medical Specialties’ Directory of Board Certified Medical Specialists — also available electronically by subscription — which provides biographies of many doctors in specialty areas. Depending on an expert’s profession, it may be possible to find out if he or she has ever been sanctioned or disciplined. Regardless of the field, one can also check to see if the expert has ever been sued. Such negative information, even if it is not directly related to the pending case, may be useful during cross-examination. The Internet provides some novel ways to gather information about opposition experts. Many experts advertise their services on the Internet, either on their personal Web pages, on Web sites run by consulting firms or in online directories of experts and consultants such as those found at www.nocall.org/experts.htm, www.lawinfo.com/biz/expertwitness.html and www.findlaw. com. A few experts obligingly publish their resumes and/or articles on the Internet, which greatly simplifies the process of collecting information about them. Some computer-savvy experts answer questions or post their opinions in Internet chat rooms in the hope of generating business, but such comments can occasionally backfire. Librarians who are knowledgeable enough to ferret out an expert’s imprudent online comments may find material that contradicts a position taken by the expert in a later court case. One can sometimes find such comments by searching chat room archives and Usenet groups. The search engine Google recently introduced the ability to search Usenet messages from 1995 onward at http://groups.google.com/. One may also discover useful comments about experts by people who have worked with them. For more detailed information on searching archives for chat rooms and Usenet groups, see an online FAQ (list of Frequently Asked Questions), or a recent article on the subject in a print journal or newsletter such as Internet Reference Services Quarterly, Online or Searcher. Besides uncovering information about opposition experts, librarians can also help attorneys by finding primers and scholarly articles that explain the topics of an expert’s testimony. Having a working understanding of an expert’s subject area will help the lawyer construct a more effective cross-examination strategy. Finally, what makes law librarians so valuable is their unique combination of skills — they are specialists as well as generalists. In the process of earning graduate degrees in Library and Information Science, they have mastered the research tools and organizational structure of other major disciplines. Librarians are also networked with other research professionals through various library associations and research institutions. In short, they know not only how to find specific types of information, but also how to apply special research techniques when general methods don’t work, and vice versa. All of those skills and connections can help uncover critical expert witness information. When such information is passed on to experienced litigators who know how to exploit it, the resulting team effort may win the day, often in dramatic fashion. Matthew Bird is a research librarian at Chicago’s Gardner, Carton & Douglas. Gardner Carton was involved in the Freeman, Rockford Memorial, Sauget and Colorado Interstate cases described in this article.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.