Thoroughly investigating an opposing party’s expert witness is an important aspect of preparing for any litigation matter involving the use of experts. Experts frequently make or break cases, and having additional information at your fingertips which can be used to undermine the credibility of an opponent’s expert can similarly mean victory over defeat. If you can demonstrate to the jury that the opponent’s expert is a simple “hired gun,” willing to say anything that your opponent wants (and even contradict his or her own prior testimony in the process), the jury is much more likely to believe your own expert’s interpretation and presentation, thereby securing much needed favor.
Gathering information about opposing experts can occur through various methods. Formal discovery is certainly one possibility. Pursue the expert’s employment history and background, prior depositions, academic record, and even financial information if you can make a persuasive case for it. However formal discovery has its disadvantages and difficulties. It is inevitably contested by the opposing party, who will not want to willingly divulge or see divulged detailed, private, and potentially harmful information about its own expert, and courts are not necessarily uniform in how much discovery they allow into an expert’s background.
Experts frequently make or break cases, and having additional information at your fingertips which can be used to undermine the credibility of an opponent’s expert can similarly mean victory over defeat.
That said, also be aware that a wealth of information is likely available about an expert informally. Published texts and as well as trade journals or even newspaper articles where the expert may have been quoted can all provide powerful ammunition if the expert previously made statements (now long forgotten) at odds with his or her current positions — also, see if an expert’s own promotional business materials can be obtained and reviewed. For example, in one publicized matter, an expert urologist testified that under the applicable standard of care, a family physician should have offered and administered a PSA test (to screen for prostate cancer) to a given patient. But that same urologist had available in his office waiting area something he had written taking the position that PSA-testing was controversial since as of that time no study had shown any impact on mortality or morbidity.
And don’t forget to beat bushes among other lawyers for prior case materials they may have involving the expert to the extent such materials are not locked up by a confidentiality agreement. Some experts have testified so often that lawyers who practice regularly in a certain area or a certain jurisdiction have a shared dossier of cross-examination materials for use against that expert. Also, don’t forget the Internet and social media. Experts who testify regularly tend to promote themselves as much as if not more than most other comparable professionals, so a simple internet search may reveal articles, blog posts, and other professional online publications that may contain nuggets of valuable information for cross-examination in your particular case.
For an example of the kind of detailed information about an expert’s legal, professional and social media footprint that a prepared background report can provide you, download a sample report from Thomson Reuters Expert Witness Services.
Also, experts are people too, and what they post to their publicly available personal social media (such as Facebook, Twitter, Instagram, etc.) may likewise contain important tidbits of information that could make for compelling cross-examination material. In one reported example, an investigation into an expert led to the discovery of the opposing expert’s Twitter account, which was linked to his Amazon Kindle account in such a manner that notes the items he was reading would be posted as tweets, ultimately providing counsel with revealing insights about the expert’s thought processes on issues relevant to the case. That said, be sure to be familiar with the boundaries of exploring social media, as various recent ethics opinions have frowned on using social media deceptively (such as by sending a Facebook “friend’ request) to gain access to social media not otherwise available to the public.
Keep in mind that an opposing expert may be extremely well-versed in a particularly narrow area of her field, but what about beyond that narrow area?
While your own experts and analysis of the case will prepare you to master your facts, understanding the opposing party’s expert will assist you in anticipating the opposing party’s strategies and arguments. This, in turn, allows your own strategies and arguments to evolve and undermine your opponent. Hunters and sportsmen know full well that the better you understand your prey or opponent, the better your chances of success. Research and study are required to set the groundwork for this understanding. It should always be counsel’s goal to know an opposing expert as well as — or better than — she knows herself, in order to find critical flaws in the expert’s character, qualifications, analysis, or testimony.
Finally, keep in mind that an opposing expert may be extremely well-versed in a particularly narrow area of her field, but what about beyond that narrow area? Your comprehensive research may reveal that the expert’s academic background focused singularly on a niche area of the field, which may be a specific factual area of the case that you do not contest. Alternatively, perhaps the expert’s knowledge is broader, and the expert actually lacks detailed, intimate knowledge of the precise issue that will determine the ultimate outcome of the case. It is human nature for experts to suggest their knowledge is broader or deeper than it really is, and effectively undermining that position in front of the jury can cast doubt upon the entirety of the expert’s opinion, even in areas where the expert truly has expertise. Either way, the foundation for this realization comes from the research conducted long before anyone steps foot into a courtroom. An essential part of that research is probing deeply into an opposing party’s expert, and while this may be time and resource intensive, it can determine the outcome of a case where experts are essential.
Timothy R. Laquer, an associate in the Law Offices of Damian D. Capozzola in Los Angeles co-authored this article.
Mr. Capozzola is the author of Expert Witnesses in Civil Trials: Effective Preparation and Presentation, published by Thomson Reuters.