How to Vet an Expert
Robert Ambrogi, Editor of IMS ExpertServices' BullsEye Newsletter
This article was originally published in BullsEye, a newsletter distributed by IMS ExpertServices. IMS ExpertServices is the premier expert witness and litigation consultant search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. Please visit IMS ExpertServices at www.ims-expertservices.com or call us at 877-838-8464
31 July 2007. Experts, sad to say, are not always honest about their credentials, as several recent news items confirm. Knowing how to verify the background of an expert - whether yours or your opponent's - could prove critical to your case.
In perhaps the most dramatic recent example, a New Orleans federal judge threw out a jury verdict in favor of pharmaceutical giant Merck & Co. after a cardiologist who testified for the defense in a Vioxx trial was found to have misrepresented his credentials.
A few weeks earlier in California, a man who fraudulently passed himself off as a computer forensics expert in two cases pleaded guilty to federal perjury charges. In Toronto, a psychiatrist had his license suspended after lying about his credentials while serving as an expert witness in two trials.
These cases illustrate why it is crucial for trial lawyers to confirm that an expert is all he claims to be. Vetting an expert's credentials should be a key step in your trial preparation.
Major legal research services provide many tools for checking an expert's background, from public records databases to deposition banks. But these major services can be expensive to use and still leave bases uncovered.
At the same time, the Web harbors a variety of resources and tools that contain potentially valuable information but that many lawyers overlook in researching an expert's background.
Yes, we all now know to check Google, but this article looks at some of the lesser-known - and mostly free - research tools you may be bypassing. Of course, these Web tools are neither foolproof nor exhaustive. No Web site can substitute for using a reputable expert-search service.
WORDS CAN HAUNT YOU
The old adage, "What you say may come back to haunt you," has never been more true. With millions of people posting to blogs and participating in Internet discussion groups, we are creating permanent records of our words and thoughts - like it or not.
In light of this, the blogosphere should be among your first stops in researching an expert's background. Does the expert maintain a blog? If so, has he said anything there you might regret. Has he posted comments to others' blogs. Have others written about him, positively or negatively, on their own blogs?
The best tool for searching blogs is Google Blog Search. Like Google's Web search, it is comprehensive and up to date. You can sort results by date or relevance, and you can search blogs in multiple languages.
A close second for searching blogs is Clusty. Clusty is not a search engine - it does not crawl or index the Web. Rather, it is a metasearch tool that calls on other blog search engines, extracts the relevant information, and then organizes the results into a hierarchical folder structure - which it calls "clusters." With this unique approach, it provides results that are both comprehensive and usefully organized.
Another source of potentially damaging comments by or about an expert is the Internet's many news groups and discussion lists. To find postings someone made to one of these, search Google Groups. It hosts a variety of current groups as well as an archive of more than 750 million Usenet postings dating back to 1985.
As podcasts become more popular, they also should be included in a background search. Perhaps the person you are researching said something pertinent in a podcast or was the subject of someone else's podcast comment. Several sites claim to search podcasts, but most of these actually search only the accompanying text - the title, description, author and any metadata - but not the audio file.
A handful of tools now enable you to search the full spoken text of podcasts. One of the best is Podzinger . It is based on speech-recognition technology developed for U.S. intelligence to monitor foreign television and radio broadcasts. It uses this technology to create a textual index of the audio data in any MP3 or WAV file, converting the spoken words into searchable text.
Where professionals once networked at cocktail parties and civic events, today you are more likely to find them connecting through any of a number of networking Web sites. The most popular at the moment is LinkedIn where members post information about their careers and their connections and share mutual recommendations. If your expert is listed on LinkedIn, read his profile carefully. How does his listing compare with what he has provided to you? Also, look for references from others and examine his network of connections for any that might help either verify or call into question his background.
Anyone researching a publicly traded company would know to check the U.S. Securities and Exchange Commission's EDGAR database. But fewer think to search EDGAR for information about individuals, even though it may contain a wealth of information. Corporate filings can provide information on an individual's business affiliations, employment arrangements, investments, and more. Even an individual's education and employment history can sometimes be tracked through EDGAR.
If the expert works in the securities industry, two databases worth checking are NASD BrokerCheck (19 November 2007: now FINRA BrokerCheck) which provides information on the professional backgrounds of current and former NASD-registered securities firms and brokers, and the National Futures Association's Background Affiliation Status Information Center (BASIC) which does much the same for registered futures dealers.
Web sites change over time. If your expert has a Web site, what it says today may differ from what it said five years ago. The best way to track historical changes in someone's Web site is through the Internet Archive's Wayback Machine. Here, you can find an archive that captures historical snapshots of sites. While not exhaustive, it is likely to have at least some pages showing earlier versions of a site.
Any number of major research systems sell access to public records. These include LexisNexis, Westlaw, ChoicePoint, and Accurint. But many public records are now available online for little or no cost. A variety of Web sites help direct you to these online sources of public records.
One of the best is Search Systems with links to nearly 40,000 sources of public records on the Web. It includes links to sources throughout the world, although the greatest number of sources are in the U.S. and Canada. Not all sites listed are free, but the site clearly marks those that are not. Among the listings: professional license registrations, corporate records, marriage notices, UCC filings, deed registries, birth and death records, lobbyist listings, physician disciplinary proceedings, and much more.
Other sites that provide directories of public records and information include:
- Virtual Gumshoe A good collection of Web resources for public records research.
- Public Records Online Directory Links to state and municipal sites, with an emphasis on real estate, tax and vital records sources.
- Merlin Information Sources Links to resources for finding public records and public information.
- Black Book Online A free public records site targeted at private investigators, skip tracers, government investigators and others. Good collection of links and descriptions.
- BRB Publications provides a fairly comprehensive, state-by-state list of free public records sites, as well as an index of national sites and another for Canada and U.S. territories.
SOCIAL SECURITY NUMBERS
Due to privacy concerns, it is difficult to find social security numbers on the Web these days. But you can easily verify that a number is valid and belongs to a living person. Enter a number in The SSN Validator and it will tell you whether the number has been issued, in which state it was issued, when it was issued, and whether any death claims exist against the number. It will not tell you the identity of the holder of the number.
Various sources allow you to check the credentials of public school teachers. The National Board for Professional Teaching Standards maintains a directory, available at www.nbpts.org/resources/nbct_directory, of teachers with national board certification. Several states maintain their own publicly accessible databases of teachers certified to teach in public schools. New York's for example, is at http://www.highered.nysed.gov/tcert/teach/index.html.
The best way to find whether one is available for a particular state is to check the Web site of the state's education department. A directory of state education department sites is maintained by the U.S. Department of Education at http://nces.ed.gov/ccd/ccseas.asp.
Other Web sites provide verification of college-level degrees and attendance for a fee. These include Credentials Inc. and the National Student Clearinghouse. Many schools will confirm degrees directly, although they may require a release.
To check a medical doctor's license, DocFinder provides a database of license information for participating states. For states not included in the DocFinder database, the site provides links to their own license look-up sites.
Most states now have sites for verifying a lawyer's bar admission. In Massachusetts, for example, it is at http://massbbo.org/bbolookup.php. You can find these for other states through the state government Web site. A new site, Avvo rates lawyers based on publicly available information and compiles client reviews and disciplinary sanctions.
Is your expert a party to pending litigation? To find out in federal court, check the U.S. Party/Case Index. This is a national index of parties and cases for U.S. district, bankruptcy and appellate courts. It is updated nightly. Use of it requires a PACER account. Not all federal courts participate, but the site includes a list of those that do not.
A service with much the same information that requires no account is Justia's Federal District Court Filings & Dockets. This free, searchable resource contains information on recently filed U.S. district court civil cases. The database includes cases filed since Jan. 1, 2006 and can be searched by party name, court, and type of case.
Another low-cost option for searching federal court dockets is Who's Suing Whom. A private translation and interpretation services firm offers this tool for searching patent, trademark or copyright cases pending in federal courts. Search by case type and party name, court, state or date to find basic case information. There is a charge to retrieve full-text court dockets.
Vital records - birth, death and marriage certificates and divorce decrees - are increasingly available free online through state and local government sources. Vital Records Information tells where to find them anywhere in the U.S. It lists sources for each state, territory and county, and most cities and towns, along with contact, fee and ordering information. For records outside the U.S., the site lists links to foreign vital records sites. This straightforward site is designed with a nod towards genealogy, but it is one many lawyers are sure to find useful.
EXPERT WITNESS RULINGS
The Daubert Tracker is a Web site developed specifically to help lawyers track cases involving the admissibility of expert testimony and, in particular, find out how specific experts fared in the courts. Its central feature is a database of all reported cases under Daubert and its progeny, trial and appellate, backed up when available by full-text briefs, transcripts and docket entries. Part of what makes the site unique is that it links cases to experts. Even if the expert is not named in the court decision, the site's editors track down the expert's identity.
A year subscription is $295 or you can purchase a two-hour session for $25 or a half-hour for $10. For free, you can search the site's collection of more than 10,000 briefs and other supporting documents from both appellate and trial courts relating to expert witness testimony. If you find a document you are interested in, you can also view the first 10 percent of it free. If you decide you want to purchase the complete document, the cost is $15 for non-subscribers and $7.50 for subscribers.
In vetting an expert, it is important to confirm authorship of listed works as well as to search for any unlisted works that could be relevant or embarrassing. Two essential resources to check for published works are the Library of Congress Online Catalog and the records of the U.S. Copyright Office. Of course, it also makes sense to check Amazon.com and Barnes & Noble.
An increasingly popular resource for scholarly publications is the Social Science Research Network . This international collaborative is home to scholarly research covering more than 400 subject areas. It contains abstracts of more than 150,000 working papers and the full text of well over 100,000 published papers. This makes SSRN an essential source for researching an expert's published papers.
Another useful source is ISI HighlyCited.com. This site provides profiles and bibliographic information for the most highly cited researchers in 21 broad subject categories. For listed individuals, the site provides biographical information - including education, faculty and professional posts, memberships and offices, current research interests and personal Web sites - as well as a full listing of publications, including journal articles, books, and conference proceedings.
The U.S. government maintains any number of databases that could be relevant to vetting an expert, depending on his field of expertise. One often worth checking is the Excluded Parties List System. It provides information on individuals and companies that are excluded from receiving federal contracts and federal financial assistance.
When it comes to checking someone's background, more is better. The more sources you use, the more complete your search. The free and low-cost resources described here provide useful supplements to more expensive research services.
(c) 2007 IMS ExpertServices all rights reserved.
Robert J. Ambrogi is a lawyer and media consultant in Rockport, Mass. He writes the blog LawSites, www.legaline.com/lawsites.html.