(Archived September 1, 1997)
There are about as many ways to gather information on expert witnesses as there are expert witnesses -- which is to say a lot. After years of researching expert witnesses at my now disbanded insurance defense law firm, and now for nearly 4 years in my own research business, I have developed strategies for finding and profiling these individuals who have become a prominent part of the legal landscape. Within this article you will find the search strategies that I have found most successful.
This article will look at the two aspects of expert witness research:
- How to find an expert
- How to conduct a background investigation on an expert witness
Basic elements of both types of searches are the elements of what we information professionals call a good "reference interview." That is, have a clear understanding of what you are looking for in an expert, e.g, discipline, locale, experience both in the field and in court. Here are two key points to include when considering what type of an expert you are trying to find:
- Are you looking for an expert for the plaintiff or for the defense. There are different sources to consult for this information. Pretty obvious question, but one that should be clarified.
- Ask how much time and money can be spent on the search. This is an key question to determine at the outset of the search because these searches can be time consuming and expensive.
How to find an expert
- First, don't overlook the obvious. Translation: not everything is online. Check print sources in your library like directories on your reference shelf. Or your in-house expert witness databank. If you don't have one in the library, be aware of the attorneys in your firm that may house their own collections of expert CVs. In my experience, word of mouth referrals by a colleague is often enough to verify an expert's credentials for most attorneys. In fact, I have discovered that in lieu of asking me to do the research this is how most attorneys find an expert.
- Do a search in the Forensic Services Directory on WEXIS. ("WEXIS" means Lexis and/or Westlaw). If cost matters, call the 800 numbers and have them do the search for you. If there are results you can use, then go online.
- Check with your local bar association or trial lawyers associations. Trial lawyers associations are particularly useful for finding plaintiffs experts. Often they do searches for members only, however.
- To find experts, step one, hands down, is to contact IDEX. In order to use IDEX, You must be an IDEX member and a defense attorney, or work on behalf of a defense attorney..
- Don't forget other local sources. Here in Philadelphia, one local legal publisher, Legal Communications, Ltd., has an expert directory on their Website. This is especially useful when I am asked to find an expert from one of Philadelphia's surrounding counties.
- Last but not least, the Internet has quite a few resources for finding an expert. Here are two of the better resources:
Hieros Gamos - good for lots of legal things including finding experts.
Finding expert witnesses on the Internet - this site lists 8 key sources for finding experts on the Internet many of which I highly recommend for finding experts.
Don't forget to do a general search in some of the key Internet search engines. Among other things, this may turn up key personal information on the expert. Recently, I did a search for an expert and found his wife was a prominent artist with her own Website. She was also listed as a partner in the expert witness service set up by her husband. Information not necessarily relevant to the case but background on the expert nonetheless. For an excellent review of search engines, specifically, when to use which ones, I refer you to Sue Feldman's article in the May 1997 issue of Searcher entitled "Just the Answers, Please" Choosing a Web Search Service. I particularly enjoyed the section entitled "Why you shouldn't worry when your search retrieves 6 million hits."
Internet Caution: The business of being an expert witness is big business. With some experts raking in $5,000 a day plus expenses, it is easy to see the lure of becoming one. Keep in mind that many of these sites on theWeb are self-promotion at its best. However, you may want an "expert" expert and one of the Internet listings may provide the quick answer.
But how do you find the person who toils everyday as a professional engineer designing or testing truck engines? The person who may be a college professor teaching building design? This person may not be a "professional" expert with courtroom experience but may be just the type of expert to lend credibility to the case. To find these individuals, the answer may lie in employing your best Dialog search methods in the relevant subject databases. You must be a subscriber to use this information service.
There are some Dialog files that should be common to any expert witness search, however. These include: 148 Trade and Industry News; 287 Biography Master Index, 47 Dissertation Abstracts, 613 PR Newswire, 77 Conference Papers, 111 National Newspaper Index. Engineer searches should always include: 6 NTIS, 161 Occupational Safety and Health, 8 Compendex, and 14 ISMECH. For medical doctors, the venerable Medline is tops, now available for free from Medscape and PubMed. MyHeart also provides access to several highly respected heart doctors who are great expert sources. When using these Websites, be sure to read the "Terms and Conditions" statements. For fast, precision searching I still recommend using Medline on Dialog, however. For books authored by the expert, check Dialog's File 470, Books in Print or Amazon Books, which some call the free Internet version of BIP.
Sometimes Usenet newsgroup searches using DejaNews can be successful in locating the expert toiling in the trenches but yet to be tapped for the lucrative world of testifying as an expert witness. They can sometimes come at a bargain price. (Sometime ago I located an M.D. with an expertise in the digestive tract from a local hospital/university. My client was thrilled with the discovery of this low-cost gem and used him on several other occasions. However, the doctor eventually got wise and is now among the ranks of the seasoned professional experts.) Also, try researching doctors who are DOs and MDs. A DO is just another type of doctor and is equally qualified as an MD. Read this article for more on MD vs DO to understand the difference in allopathic and osteopathic physicians. In some cases, it's easier to get a D.O. for comment than an M.D.
Conducting a background investigation of an expert
Begin by employing your basic "reference interview" with these points in mind:
- Again know if the expert you are looking for is for the plaintiff or for the defense. There are different sources to consult for this information.
- Know just what information you want on the expert. Often, attorneys just want prior testimony. (Tips on obtaining prior testimony are detailed below.) Or, perhaps you want a literature search for professional articles or government reports written by an expert. Newspapers articles on or by an expert can provide insight as well. (I once conducted a background search in the local newspaper for a plaintiff's medical doctor only to find he had recently been arrested for DUI. Not particularly relevant to the facts of our case, but it was information that speaks to the character of the witness and was used to discredit him.)
- One of the most important pieces of information you can know before embarking on an expert witness background search is the expert's full name. This may sound obvious. However, knowing whether the expert goes by "Bobby" or "Robert" or "Kris" or "Kristopher" or "Kristen" or "J.R." or "J. Robert" or "John Robert" is essential to producing successful results with a well constructed online search.
- Another critical piece of information is the expert's middle initial. This may also sound obvious but anyone with experienced with Dialog searching should understand why this is an important element. Databases have different criteria for entering names (e.g., W.H. Simon, W. H. Simon, William H. Simon, William Simon, etc.). The best piece of advise when doing a Dialog search on an expert is: check the Bluesheets for the author field setup and always EXPAND.
- Know how much you want to spend on the search. Again, this is an important question to answer at the outset of the search because these searches can be quite expensive. An article in the Lexis-Nexis Information Professional Update (April 1995 ), pp. 99:44 cited steps for doing expert searches using these files: ALLVER, ALLOWN, MEGA, LEXPAT, MEDLINE, NEAST and SCRIPT. At the time, the search would have cost about $420.00, + the print costs, + online time + the hourly rate the law librarian billed the client for her time to prepare, execute and cleanup the search. And that was (presumably) before she searched Dialog and other sources for the complete picture. Incidentally, the cost of this search was left to the reader to calculate.
Three types of expert witness background checks
Mainly because of cost concerns, I offer my clients 3 types of search strategies:
- A Basic search. This also falls in the "quick and dirty" or the "fast and cheap" catagory. If you want information on a defense expert, and are working for the defense, contact IDEX. IDEX charges around $300.00 per year for membership and $60.00 for each name searched. Members can search directly from the website. IDEX is an expert witness resource with over 75,000 + expert names. I have found IDEX to be very successful in turning up the "occasional" expert. These are the individuals who may have testified in a local court which will not be available on WEXIS. For the plaintiff's expert, check one or two jurisdictions for federal or state litigation or jury verdict and settlement databases on WEXIS. Budget an hour of time for a basic search to include search preparation and execution, post-processing search results and report preparation.
- A Standard search. This includes results from a basic search plus a list of articles by the expert from relevant Dialog databases and major news items about the expert. When asked to get copies of articles from the literature search, some of my favorite sources are Infocus Research Services, CARL Uncover and CISTI. Allow at least two hours for all phases of an standard report, not counting turnaround time for obtaining full-text which could take 2-3 business days.
- A Detailed search. This search includes all of the above. However, the state, federal and jury verdict and settlement databases are for all state and federal jurisdictions. This search also contains locating and obtaining copies of prior testimony. See below for more on this time consuming aspect of expert background searches. A NEXIS search would complete the search for any articles on the expert. Again, the "cheap trick" here is to call the 1-800 number and have their expert searchers investigate the availbility of anything on your expert before you incur the cost of going online. A detailed search could run $500-$1,000 or more. You may need to budget 3+ hours of time for this one.
When the background search request includes a request for prior testimony
Here's where basic telephone skills come into play. Successful IDEX searches, or state, federal or jury verdict and settlement database searches will turn up the names of attorneys who have dealt with this expert before. Still, the best way to get copies of transcripts of prior testimony is to call that attorney. To locate the current firm listing and phone number of the attorney, check the various legal directories on the Internet. I often use West's Legal Directory. Experience has taught me that cold calling will often not get you directly to the attorney - so don't even try. What you are looking for here is the kind hearted secretary or paralegal who would know the whereabouts of the transcript within the firm. Sometimes, you will find the law librarian who has a cataloged collection of prior testimony at her fingertips. If the transcript is easily obtained, often it will be sent at no charge. Some firms charge but that is rare. If the file is older and warehoused offsite, then good luck. There is no incentive for the person to spend the time and money necessary to gain access to these files for a stranger law firm -- although there are some nice folks out there and you may get lucky. At this point, if an attorney wants the transcript badly enough, s/he should call the other attorney directly. Sometimes this attorney-to-attorney contact is productive.
There are some commercial services for obtaining prior testimony. They include IDEX and Westlaw which has an agreement between the U.S. Court Reporters Association and the National Expert Transcript Service. Users can preview abstracts of transcripts and then order the full-text document. Also, if it is a high-profile case, expert transcripts may be available on WEXIS file or website.
Finding and investigating expert witnesses is often time consuming and expensive. If you have the proper information and budget, you should turn up some nugget that will be useful. But what if you don't find anything? Even if you are "100% sure" there is something out there. Thoroughly document your searches, printing out "no records" when you can. Sometimes the answer "no records" may be just what you want to hear. If not, a well documented search on your part will be the evidence you need to backup your efforts. As we legal information professionals all know, but sometimes have trouble convincing the attorneys with whom we work, not everything is on the Internet -- yet. The coming digital workplace will, I suspect, allow for easier access to expert witness materials as paper storage disappears and documents stay in digital format. Courts limiting the use of experts (see e.g., Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and Elkins v.Syken, 21 F.L.W. S159 (Fla. 1996) could also diminish the need for these types of searches. Until then, know that an expert search is costly both in staff time and money. Forewarned is forearmed.
Finally, a shameless plug
Ayers Information Network as access to all of the sources listed above. If you are in need of an expert search but lack the staff time or resources, then consider outsourcing this work to us. We are here to compliment your in-house library services -- not rival them.