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Jim Robinson is an attorney, executive committee member of the Law Practice Management & Technology section of the California State Bar Association, and president of JurisPro, an expert witness marketing company that features the free JurisPro Expert Witness Directory. Mr. Robinson is pleased that he could work “School House Rock” into this article. |
At 4:30 p.m., the assignment is given to the attorney to find an “IP Spoofing” expert witness. The associate’s first thought is, “What is IP spoofing – some lampoon on attorneys from the Silicon Valley?”[1] The second thought is, “This is going to take some work, and missing dinner (again) is suddenly becoming a probability.” Thankfully, the connection between one’s computer and the Internet allow a researcher to find and evaluate qualified expert witnesses without forcing one to skip a meal.
This article will provide tips on how to find and evaluate expert witnesses via free resources on the Internet.
I. Finding Experts – Would One Know the Right Expert if One Found Him or Her?
It is extremely difficult to determine if a consultant is qualified in a particular area without having a detailed knowledge of the subject matter. Careful investigation of the topic first will allow the researcher to know what questions to ask the potential expert, and will lead to the names of experts in that field.
Library web sites are an excellent place to begin the research to find information about the subject matter and to find potential experts. Start by searching their online catalog for books and journals for information on your subject and/or for materials authored by a potential expert witness. A comprehensive listing of library web sites can be found at LibWeb (http://sunsite.berkeley.edu/Libweb).
Many library web sites allow the researcher to search their catalog directly for the topic. For example, basic search on the Library of Congress’s web site (http://catalog.loc.gov) using the term “handwriting identification” will return over 10,000 books and other publications (and leads for expert witnesses). These results included not only the potential expert’s name, but the title and date of publication, where it was published, and cross-reference to other works by that author.
For literature on medical topics, try the National Library of Medicine (NLM) (http://www.nlm.nih.gov/). The NLM collects materials in all areas of biomedicine and healthcare. This includes works on biomedical aspects of technology, the humanities, and the physical, life, and social sciences. According to its web site, the NLM houses 6 million items—including books, journals, technical reports, and manuscripts. The NLM web site and its associated services “PubMed” and “MedLine Plus” contain links to medical encyclopedias, full text news stories, articles, and publications listed on the Internet for free, as well as information on how to order articles not available free online.
A search on commercial web sites such as Amazon.com (www.Amazon.com) or Barnes and Noble (www.barnesandnoble.com) will also lead to publications regarding the subject matter, and the names of experts. For example, a search for “construction safety” on Barnes and Noble returned 669 results. These results included a synopsis, the author’s name, table of contents, a note from the publisher about the work, and, in many cases, reviews of the book. Besides books, the same search on Amazon found manuals and reports written by potential experts.
A. Let me ask a personal question: Does one Yahoo or does one Google?
Search tools such as Yahoo (www.yahoo.com) tend to be over inclusive instruments for finding expert witnesses, unless the search query is precisely tailored. Included in the search results on Yahoo for “fire expert” were articles on “St. Elmo’s fire,” and why Dalmatians are the official mascot of fire fighters (answer: firemen found the dogs hard working, and the dog’s spots were easy to spot among the horse drawn fire carriages of the day). A search for “fire cause and origin expert” on Yahoo produced more tailored results for potential expert witnesses.
Of the search engines, one of the very best for locating expert witnesses is Google (www.Google.com). Besides web pages, Google will also retrieve Adobe Acrobat PDF files and Microsoft Powerpoint presentations. By clicking on the “advanced search” button, users can refine their search on Google to eliminate unwanted terms or limit the results of the search. Another useful search tool is “LawCrawler” (http://lawcrawler.lp.findlaw.com), which can be used to limit the search for sites that contain legal information.
For relevancy purposes, it is important to understand how search engine results are generated. Crawler-based search engines, such as Google, create their listings automatically by electronically “crawling” the web. A “directory” such as Yahoo is largely “human-powered.” The relevancy of Yahoo’s results is largely derived by editorial review of listing submissions (although Google now supplies a portion of Yahoo’s search results). Also, the top listings on many search engines are often paid listings from third parties. For example, the “pay per click” company Overture (www.Overture.com) provides the top three results on several major search engines, such as Yahoo, Lycos (www.lycos.com), and MSN (www.msn.com). These paid listings are usually labeled “sponsored listings.” Through a company such as Overture, experts can pay to have the top spot for such terms as “OSHA expert.” Paying to be listed as the number one expert in one’s field could be an issue in the cross-examination of that expert.
B. Name that product
Searching for the name of the product on a search engine will also lead to information about that item, and to the names for potential experts. As a hypothetical, let’s say an attorney had a personal injury case that involved a Weatherby brand rifle. A search on Google for “Weatherby rifles” leads to the web site of the manufacturer, the names of distributors, articles about the gun, upgrades, and safety notices. More information about the companies and products can be found at the Thomas Register (www.thomasregister.com). This free online directory contains information for over 72,000 product headings and more than 170,000 company listings. After a free registration, one can search for a product, service, brand name, or company name. Thomas Register has gathered the company information from registrations of companies in its “industrial buying guides.” For example, a search for “bicycle pumps” lead to profiles for manufacturers, including the company’s description, its mailing address, phone number, fax number, web site addresses, amount of assets, employees, and the name of the parent company. This site is also helpful if the company was a party to the case.
C. Do not be afraid of the “Invisible Web”
According to various search engine experts, the top search tools fail to index, or find, 70-75% of the pages on the Web.[2] Those pages not suited or indexed by search engines are often referred to as the “Invisible Web.” The “Invisible Web” holds the majority of the documents that are on the Internet, and are rarely retrieved by the casual “search engine” researcher. There are many fruitful places for finding experts on the “Invisible Web,” such as those on the web sites of universities, hospitals, and associations.
1. Back to school
Web sites of colleges and universities web sites are excellent sources for finding and evaluating experts. These web sites should be searched directly, as the individual faculty member’s biography often does not appear in search engine results. A list of colleges and universities with links to their home pages can be found at American Universities (www.clas.ufl.edu/CLAS/american-universities.html). For example, Florida State University College of Medicine (http://www.med.fsu.edu) has set up separate web pages for many of its professors, including a short video (in mpg form) of the professor, his or her curriculum vitae, publications, class schedules, research projects, links the professor thought were interesting, and, for some professors, even their hobbies! A search on this site retrieved a Florida biochemistry professor who specializes in protein engineering, enjoys Formula One auto-racing, and has a link to a Japanese Sumo wrestling web site. Interesting.
The search engine Google (www.google.com) makes it easy to directly search universities for potential expert witnesses. By clicking on the “advanced search” button on Google, the user has the option to search only on the web sites of particular colleges or universities. This facilitates quick searches of different schools without having to learn the navigation on the universities’ individual web sites.
2. Go see the doctors
Many healthcare facilities and organizations have excellent directories for their doctors. A directory of nearly 18,000 healthcare organizations, including ambulatory care facilities, assisted living facilities, behavioral healthcare facilities (such as chemical dependency centers and development disabilities organizations), HMOs, home care organizations, hospitals, laboratories, long term care facilities, and office based surgeons can be found on the Joint Commission on Accreditation of Healthcare Organizations’ web site (www.jcaho.org/qualitycheck/directry/directry.asp). For example, on the Children’s Hospital of Boston web site (http://children.photobooks.com/public.html) a search for cardiologists in Boston resulted in 44 listings, each with photographs, contact information (including e-mail), and the doctor’s professional certifications and educational background.
3. What’s the association?
For virtually every field and interest there is an association, and in those associations are potential experts. The best place to find information about associations is through the “Associations Unlimited Database” (otherwise known as the “Encyclopedia of Associations”). This database can be accessed online through the web sites of many universities and public libraries, provided one has a library card for that institution. As an example, by going to the Los Angeles County Public Library’s web site (www.lapl.org) and entering a library card number, one can access this database and find information for approximately 460,000 international, national, regional, state, and local membership organizations, in all fields. These listings provide information about the organization, its membership, and contact information for its director. Such a database is extremely helpful for finding experts in rather obscure fields, such as hang gliding or petroleum packaging.
II. Is this Person Available as an Expert Witness?
Finding someone with the requisite expertise for one’s case does not complete the search. Based on a variety of reasons, many of those who qualify as “experts” do not make themselves available as legal consultants. Through expert witness referral services and online directories one can find professionals who are also available for litigation support.
A. A good referral
Expert witness referral companies maintain a database of professionals who are available for expert witness assignments. The benefit of these services is the large size of their database, and one can save a lot of time looking for experts. The downside is that the user has to contact the referral company to get information for the expert, and must pay an additional fee to the referral company to retain that expert.
One of the best known expert witness referral companies is TASA (www.tasanet.com). According to its web site, TASA has national and international experts in over 9,000 categories. One can run a search on the TASA web site for a particular expert in a specific geographic location. The results, however, only display the number of experts available, without any other information. It is then necessary to contact TASA by phone or by e-mail to review that expert’s qualifications, and to contact the expert. TASA adds a flat fee, usually $75-$95 per hour, to the expert’s normal hourly rate.
The California based ForensisGroup (www.forensisgroup.com) provides technical, engineering, medical, scientific, and environmental experts. This company provides excellent customer service, and specializes in construction experts. On the ForensisGroup web site one can view short blurbs about the expert before contacting this referral company to retain that expert.
For referrals to medical experts, go to MedQuest (www.medquestltd.com). MedQuest provides referrals to testifying medical experts (MD, DDS, DMD, DC, DO, DPM, OD, OTR, PharmD, PhD, RN and RPT) in every region of the country. These experts provide evaluations for plaintiff or defense counsel in all types of healthcare related malpractice, personal injury, and other tort litigation, as well as criminal law.
B. Letting one’s fingers do the walking online
Expert witness directories allow the attorney to browse for consultants in his or her area of expertise, and contact them directly. The experts usually pay a listing fee, and the search is free to the user. Many bar associations, such as the Los Angeles County Bar Association (www.expert4law.org) and the San Francisco Bar Association (http://www.sfbar.org/cgi/experts/exp.cgi) have online directories for expert witnesses. There are also many commercial expert witness directories. For example, Experts.com (www.experts.com) provides free information about a variety of experts to attorneys, businesses, reporters, insurance companies, judges, librarians, and the media. This site includes contact information for the expert, a short biography on the expert, and a link to the expert’s e-mail address and web site. Many of the large legal portals, such as Findlaw (www.Findlaw.com), Law.com (www.law.com), and Hieros Gamos (www.hg.org) also have online directories with short biographies and links to the expert’s web site.
NLJ Experts (www.nljexperts.com), a division of American Lawyer Media, (one of the largest legal journalism companies in the world), advertises that it has 15,000 experts in their online database. Users may search this online directory of experts by geography or area of expertise. The search results are then displayed offering the user the choice to view an edited curriculum vitae of that expert and contact information.
Built by practicing attorneys, the JurisPro Expert Witness Directory (www.JurisPro.com) is a free national online directory of expert witnesses in thousands of categories. Visitors to JurisPro are able to view and download the expert’s contact information and link to his or her web site; obtain the expert’s full curriculum vitae available for download or print; read articles that the expert has written that discuss his or her areas of expertise; review the expert’s background as an expert witness (how many times the expert has testified, % for the plaintiff and defense, etc.); and obtain contact information for the expert’s references.
III. Looking for the Skeletons – Evaluating the Potential Expert
When an attorney retains an expert, he or she is doing so on an educated guess. One cannot see an expert’s potentially effective trial presentation, or an expert’s future analysis of the intricacies of the case. Therefore, once a potential expert witness has been located, it is important research that expert’s past to see if the expert has any “skeletons in the closet.”
A. Everybody’s gone searching – searching USA
Once an expert’s name has been located, search engines can again be used to begin research that expert. An expert’s personal web page, articles, research projects, presentations, speaking engagements, and even postings on discussion boards can be found by simply conducting a search for the expert’s name on a search engine such as Google (www.google.com). To produce better results, use the advanced search function and include the expert’s full name, including his or her middle initial, if known. Be aware that many people share even the most unusual of names. Researchers should, of course, verify data before relying on it.
B. The expert’s web site – goldmine vs. landmine
An expert’s personal web site should be carefully reviewed prior to retaining that expert. If a search engine did not locate the expert’s web site, try simply entering the expert’s name or company name as a dot com (e.g., expertname.com). Many experts post their full curriculum vitae, prior litigation experience, speaking engagements, references, memberships and professional organization affiliations, articles and/or newsletters on their web sites. When reviewing an expert’s web site, keep in mind that opposing counsel can do so as well. Be aware that experts’ web sites are sometimes little more than self-promotion, so tread carefully. Is there anything embarrassing or contradictory on the site? Does the expert pronounce that he or she is “the leader in the industry” or put forth similar bravado that could affect how the jury perceives the expert? Imagine how the jury would react if the pages of the expert’s web site were displayed as exhibits at trial, because they very well might be.
C. The expert wrote that?
A researcher cannot depend on the expert to have posted all of his or her published works on the web site, and therefore must search on one’s own. Full text articles from over 300 periodicals dating back to 1998 can be found at FindArticles.com (www.findarticles.com). Some legal portals, such as Hieros Gamos www.hg.org, post articles written by experts. Many trade associations publish online newsletters, and some provide either full-text or extracts from articles. For example, the Accident Reconstruction Communications (ARC) Network (www.accidentreconstruction.com, a professional organization for those in the accident reconstruction industry, has a monthly newsletter with expert articles. This site also has an active discussion forum that includes opinions posted by various accident reconstructionists.
D. Ever been in trouble?Although not a free search, Idex (www.Idex.com) has created an internal database of experts who have been reviewed and disciplined by jurisdictional licensing boards. To access this database, one must be an Idex member and a defense attorney (or work on behalf of a defense attorney). According to its web site, 6,000 records are added each month to Idex’s database of over 800,000 records of expert involvement.
E. It’s in the news
From queries in news sources, researchers can often find quotes made by the expert and learn an expert’s opinions. A list of newspapers and magazines and their links can be found at Newslink (http://newslink.org). Some online newspapers and magazine require a registration, which is often free, while others charge to view and download articles.
It is worthwhile to run a search for an expert name on these news web sites, especially in the newspapers in the expert’s locality. For example, after a free registration, a search on the Los Angeles Times’ web site (www.latimes.com) for a particular psychologist retrieved a story about a recent kidnapping. This psychologist testified regarding the memory of a five year-old’s eye-witness to the crime. The article reported that this psychologist had worked as an expert witness in more than 300 criminal trials. He also provided a quote in this story about the reliability of child eye-witnesses. This is important information to have if one were going to retain or depose this expert, especially if the case involved this topic.
G. Haunted by posts
Another place to look for expert opinions on the Internet is through archived Usenet Discussion postings. “Usenet” is a world-wide distributed discussion system. It consists of a set of “newsgroups” classified hierarchically by subject. “Articles” or “messages” are “posted” to these newsgroups. These articles are then broadcast to other interconnected computer systems via a wide variety of networks. [3]
Carole Levitt, president of Internet For Lawyers (www.netforlawyers.com), and a nationally recognized author and speaker on the subject of using the Internet for free legal research, suggests using the search engine “Google” (www.google.com) to find Usenet Discussion postings by expert witnesses. By clicking on the “Groups” tab on Google home page, one can access more than 700 million messages dating back to 1981. Using the “advanced search” button, one can search by either the author’s name or the author’s e-mail address. Keep in mind, however, that many postings are made anonymously or with pseudonyms, and that people often change their e-mail addresses.
H. We’ll be brief
Information about expert witnesses can often be found in litigation briefs. Unfortunately, it is difficult to find services that provide free access to litigation briefs. The Brief Reporter (www.briefreporter.com) publishes legal briefs from previously litigated cases in all state and federal jurisdictions. Their editors analyze, index, and abstract each brief. Searches are free, but it costs a small fee to download the document. Running a search on this site for a particular toxicologist returned a summary of an opinion from a product liability case. In this case, the testimony of plaintiff’s expert witness was excluded because his theories had not been tested and had not been generally accepted. This brief would certainly be worthwhile reading if one were facing or retaining this expert.
Juritas (www.juritas.com) provides a fee-based, searchable database to the complete text of briefs, pleadings, motions, affidavits, orders, verdicts, judgments, jury instructions and expert witness testimony from trial courts around the country. According to its web site, these papers come directly from state and federal trial courts across the United States. The documents also cover the most litigated practice areas, including Antitrust, Personal Injury, Securities, Medical Malpractice, Tax, Insurance, Labor & Employment, Products Liability, White Collar Criminal, Environmental, Civil Rights, and Intellectual Property.
I. The verdict is in
Jury verdict and settlements are unofficially reported in a variety of locations on the Internet, and often provide information about the experts used in the case. Morelaw (www.morelaw.com) is one of the only free, searchable nationwide jury verdicts web sites. This site has verdicts and settlements dating back to December 1996. One may search their database by “defendant’s expert,” or “plaintiff’s expert.”
Some free information for expert witnesses is available on the National Association of State Jury Verdict Publishers (NASJV) (www.juryverdicts.com), a portal site for many jury verdict publications. The data from this site is organized from two dozen independent reporters responsible for 29 publications in the United States. A table and map of the U.S. show the jurisdictions covered. According to its web site, their “expert witness directory” contains the names of nearly 40,000 experts who have testified in civil trials across the United States. The user can only search the NASJV’s online expert directory by clicking on an alphabetical listing of experts – Boolean searches are not available. The search results only include the expert’s name, area of expertise, and a link to the jury verdict publication in which the expert’s information appears. It is then necessary to contact that publication to retrieve further information, which costs a fee.
J. Decisions, decisions
Expert’s names often appear in reported decisions. To access searchable, free case law, try Findlaw (www.findlaw.com). A search on Findlaw for a particular psychologist retrieved a very interesting California case in which the expert sued for defamation over his opinions. In this case, it was reported that this expert had testified 250 trials on the subject of the unreliability of children’s testimony alleging sexual abuse. One may also find free case law, and information about expert witnesses, through LexisOne’s (www.lexisone.com) LexisOne’s search navigation is easy to use. This site does require that the researcher fill out a one-time free registration before reviewing the cases.
K. Under oath
To date, there is no free, centralized database for expert witness transcripts. For defense attorneys, full text copies of the expert’s testimony are available for a fee from Idex (www.Idex.com). Idex has built its database of deposition transcripts by submissions from its own members. Electronic versions of some documents can be viewed and downloaded directly from this site at a reduced price. Expert witness transcripts are also available for a fee to defense attorneys who are members of the Defense Research Institute (www.dri.org).
On the plaintiff’s side, the ATLA Exchange (www.atla.org) makes available to its members a database of over 10,000 expert witnesses, and over 15,000 transcripts. This database is developed by submission from its members. The commercial service TrialSmith (www.trialsmith.com) states on its web site that it hosts the nation’s largest on-line deposition bank, with more than 147,000 depositions. The TrialSmith document database is jointly sponsored by more than 52 trial lawyer associations and litigation groups. Each group encourages its members to contribute depositions and other documents to TrialSmith. One can run a free search on their site for a particular expert, and then contact the company (if one is a member) to get copies of that transcript.
As an alternative, try directly contacting lawyers who have worked with (or against) a particular expert, and request a copy of the deposition transcript from them. Most attorneys keep their own expert witness transcripts, and would be willing to share (provided, of courses, the favor is returned some day). For example, ATLA posts the contact information for the member who provided information about that expert. The experts themselves often list the names of the attorneys with whom they have worked in the past on their web site – or the researcher can simply ask the expert for a list of references. One can then find and contact that attorney through Martindale-Hubbell (www.martindale.com).
L. Can we talk?
It is important to be clear on the reason the expert is being retained. Will this expert only consult on the matter, or will he or she be asked to testify at a deposition or at trial? If this expert will ultimately be called to state his or her opinion before a decision maker, then consider this point, best articulated by Harry Beckwith in his wonderful book, “The Invisible Touch”:
Communication is not a skill, it is the skill.
Jurors are very rarely persuaded by credentials alone – in fact, most jurors will say that the qualifications of the opposing experts “cancel each other out.” In his book, Harry Beckwith cites a jury survey conducted by DecisionQuest, a jury consulting service. The results found that jurors sided with one expert over another because one expert more clearly communicated her expertise. Mr. Beckwith summed this result up with a simple idea held by jurors:
“If you’re so smart, why can’t you speak clearly?”
It is very important to understand what type of appearance the expert will make. On the JurisPro web site (www.JurisPro.com), visitors can see a photo of the expert, and hear the expert speak through streaming audio. This allows the visitor to learn how that expert presents himself or herself. Some experts have included streaming video of themselves on their own web sites to enable attorneys to see them in action. This is extremely valuable in evaluating their abilities to speak on their area of expertise.
IV. Parting Words – Take Lessons from Cartoons
To quote the authoritative “School House Rock” cartoon (and perhaps other less scholarly sources), KNOWLEDGE IS POWER. The Internet is a content-rich frontier. Do not rely solely on search engines. Deep, well-lined pockets of information abound in corners of the web that are usually overlooked by the casual researcher. The Internet, and especially the “Invisible Web,” can be used to:
1.Learn the subject matter well enough to be able to make an informed decision about the qualifications of a potential expert;
2. Find the names, background, and availability of the potential experts; and
3. Decide if an expert will be a good witness should the case go to deposition or trial.
Using the resources outlined in this article, one can convert the vast amount of free information on the Internet to knowledge about expert witnesses.
[1] “IP Spoofing” is a technique used to gain unauthorized access to computers, whereby the intruder sends messages to another computer with an IP address indicating that the message is coming from a trusted host. Source: Webopedia, June 4, 2002 www.webopedia.com – a very good online encyclopedia for computer technology terms.
[2] Ian Smith, “The Invisible Web: Where Search Engines Fear to Go.” Competia Online Magazine (http://www.powerhomebiz.com/vol25/invisible.htm)
[3] Source: UseNet References (www.faqs.org/usenet)