The fact finder’s perception of a testifying expert’s credibility can make or break your client’s case. Below are five tips for conducting research that may help you undermine the credibility of an opposing party’s expert witness. You also should apply this guidance to vet your experts before retaining them to testify on behalf of your client. Although any expert you retain will provide background information and disclose their prior opinions and publications, you should always verify that information and search for any other publicly available information on your potential experts. It is better to know sooner, rather than later, of potential issues with an expert’s credibility, so your client can make an informed decision about retaining that expert.
January 20, 2022 Practice Points
Five Tips for Conducting Background Research on Expert Witnesses
It is better to know sooner, rather than later, of potential issues with an expert’s credibility, so your client can make an informed decision about retaining that expert.
By Melissa Romanzo and Kate Perkins
1. Conduct Internet Searches
Start with a basic internet search of the expert, but do not rely solely on the name listed on the expert’s disclosures or CV. Search former names, nicknames, initials, and combinations of first, middle, last names, and initials. Use more than one search engine. Run searches regularly throughout the case to check for new content, and consider setting up search-engine news alerts to receive notifications if the expert’s name appears in the news. Moreover, you should consider researching more broadly any organization with which an expert is associated, such as a consulting firm, university, political group, or community organization. This search may provide you with insight into the expert’s motivations or ideology.
You also may be able to find videos or audio recordings of past presentations or media appearances by the expert. These sources could provide insight into the expert’s demeanor and personality, which may prove useful in preparing for the expert’s deposition and/or trial examination.
2. Verify the Expert’s CV and Prior Testimony List
Verify all statements on an expert’s CV, especially education, licensures, honors, awards, and publications. You may want to hire a private investigator to help with this and to run a background check, particularly to check for criminal history and disciplinary actions by professional licensing boards. From the testimony list provided pursuant to Fed. R. Civ. P. 26(a)(2)(B), you can research the prior cases in which an expert has been disclosed, determine the identity of opposing counsel, and consider contacting the counsel to see if they will share with you any non-confidential materials related to the expert (such as reports or deposition transcripts). And remember, it is not enough simply to verify that the information on the expert’s CV and prior testimony list is correct—you should also read the available testimony and publications.
3. Use Legal Search Databases
On Westlaw and LexisNexis, you can run background reports on an expert, as well as a separate report to identify any prior motions to exclude the expert’s testimony. You can also use PACER and some state-court websites to access briefing related to those motions. Often, portions of the expert’s prior reports (including testimony lists) are attached to the briefing, and you can use that information to help determine whether there is additional relevant testimony beyond the lookback period of Fed. R. Civ. P. 26(a)(2)(B), or additional publications.
4. Check Social Media (Carefully)
Investigate an expert witness’s social media, but do so carefully. In many jurisdictions, ethical rules prohibit attorneys from having unauthorized contact with litigants or third parties, or engaging in dishonest or deceptive tactics. E.g., Model Rules of Prof’l Conduct R. 8.4(c). You therefore should view only what is available publicly, i.e., without “following,” “friend-ing,” commenting, “liking,” “connecting with,” sending a message to, or otherwise communicating with the expert or sending a request to do so. Similarly, you should not ask anyone else to do any of those things.
Keep in mind that on some social-media platforms, such as LinkedIn, users may be able to see who has viewed their public profile. But, for the reasons stated above, you should not use fake accounts to conduct your research.
Beyond identifying an expert’s public posts, you should check to see what content an expert has interacted with—e.g., on LinkedIn, you can see a user’s “Recent Activity” (what they have commented on, posted, shared, or liked), and on Twitter, you can see the posts that a user has “favorite”-ed, retweeted, or otherwise responded to. Similarly, if you run a search on Facebook for a user, you may be able to see public posts that the user has liked and commented on.
Even if not directly relevant to the subject matter of an expert’s opinion, information you find on social media can help you better understand the expert and/or identify potential credibility issues.
5. Preserve Your Research
Internet content is dynamic. For example, a media outlet might change or remove an article from its website, or an expert could change the privacy settings on social-media accounts to impede your ability to see the content. Therefore, you should preserve what you find, when you find it, by printing the website page to PDF (in color, ideally with a date/time stamp) and/or by taking screenshots.
Melissa Romanzo and Kate Perkins are associates with Hunton Andrews Kurth in Charlotte, North Carolina.
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