Becoming an Expert at Investigating Expert Witnesses

March 2012

IN THIS ISSUE

— Investigating Experts: When a Wealth of Experience Becomes a Treasure Trove of Evidence
— Digging Into the Details: Research Techniques for Investigating Experts

GREETINGS!

Welcome to the March 2012 edition of our newsletter! In this issue, we’ll examine how to investigate the backgrounds of expert witnesses in order to identify possible conflicts of interest or other deficiencies prior to their testimony.

INVESTIGATING EXPERTS: WHEN A WEALTH OF EXPERIENCE BECOMES A TREASURE TROVE OF EVIDENCE

Expert witnesses serve an essential role in American jurisprudence: they are not called upon by the respective sides to be fierce partisans in favor of a position, but instead to be seasoned and experienced professionals in a given field — anything from carpentry to ballistics — to provide analysis that, while provided through an impartial lens, is meant to add heft to the argument of the side for whom they are retained, As an investigator, while an expert’s experience can be credible and their testimony worthy, there are myriad ways in which the objective nature of such testimony can be called into question.

The motivations of an expert in offering to provide testimony can vary, and financial gain isn’t always a direct motivating factor. A successful orthopedic surgeon can,. for instance, testify about how someone may have sustained a back injury, and be doing so not for remuneration but to draw attention to a field of study he feels is under-appreciated. Other professionals complement their traditional lines of business, whether in accountancy or construction, by agreeing to review a party’s case files and other materials and offer their assessment, which can often lead to positive recognition throughout a community, and also increase their own business prospects.

DIGGING INTO THE DETAILS: RESEARCH TECHNIQUES FOR INVESTIGATING EXPERTS

The number of techniques that can be used to investigate experts are in some ways as varied as the types of experts themselves. While some techniques are industry-specific — such as investigating whether doctors testifying about an experimental drug had conducted any clinical trials for products that could compete with the drug about which they testify — others are similar to the standard techniques of a quality due diligence assignment. What was said in previous testimony, and how might it relate to the current case? What positions did the person hold before becoming an expert? if the expert was a public official or corporate executive before becoming an expert witness, delving into their reputations in their past career incarnations — and the litigation that likely resulted from them doing their jobs — can be a very fruitful way to give context to their arguments — or, depending on the nature of the evidence uncovered, undermine their arguments substantially.

Litigation is ultimately a battle between two sides, and each side will draw upon all available resources to make its case. While both sides will often employ experts whose careers are distinguished — and whose credentials may seem, upon first glance, above reproach — the process of countering the arguments made by another side’s experts is far more nuanced. By seizing upon key details from a case or business transaction in an expert’s past, a thorough investigator can help counsel cast doubt on the supposedly objective perspective of the other side’s witness, and strengthen counsel’s argument against their testimony.