Digging into an Opposing Expert’s Past
Plaintiffs’ retained testifying experts must, similar to lawyers, market themselves to potential clients. In their profession, of course, their target clients are plaintiff-oriented firms. Just as members of any profession, plaintiffs’ testifying experts often become more sophisticated both in their craft and their marketing efforts with experience, which, essentially, means they become better at spinning the same underlying biographical facts over the years. As defense attorneys, we can uncover helpful impeachment material by comparing these experts’ current promotional materials with the ones used during the dawn of their careers. Both lawyers and their experts have used the Internet to promote themselves for almost two decades, and these marketing materials can still be found lurking in the greater depths of the Internet if you seek them out.
Anecdotal evidence proves this point. Several years ago, while litigating a catastrophic personal injury case, our opponent, the plaintiff’s lawyer, designated a life care planner to testify as an expert on behalf of a seriously injured plaintiff. Liability was highly contested. In the same way as most life care plans, the one at issue was formulaic and overblown, listing all types of anticipated expenses, procedures, and future needs for which there was little or no evidentiary support. As fate would have it, the plaintiff’s lawyer, when producing the life care plan itself, somehow neglected to provide a copy of the life care planner’s CV. An opposing expert’s CV, of course, is the best place to start when preparing for an expert’s deposition. Of course, we followed up and requested a copy to prepare for the life care planner’s deposition, but our requests were not a priority for our opposing counsel. In the meantime, we conducted a background investigation into the expert (an essential task that should be performed before deposing any unfamiliar expert). As a part of that investigation, we searched the Internet to uncover past cases, former testimony, prior reports, and general biographical information.
A Google search revealed that the expert in question had spoken at a workers’ compensation educational conference in the year 2000, more than a decade before. The promotional materials for the conference, sponsored by the state’s industrial commission, still remained on the governmental entity’s website all these years later. However, the hyperlinks to the speakers’ bios had long ago expired. Using the Internet Archive’s “Wayback Machine,” we input the URL address of the expired biography link into the search engine and unearthed the materials once posted online on the state’s website.
Accordingly, we found the expert’s CV as it existed in the year 2000, and we later compared it to the version ultimately produced to us in the litigation in 2012. In the 2012 version of the CV, the expert indicated that she had obtained “a certificate program in life care planning” from a major, well-respected public university. The 2000 version of the CV, however, indicated that the “certificate program in life care planning” had come from that university in conjunction with an unfamiliar private corporation. The private company’s name did not appear on the 2012 version of the CV.
This omission piqued our curiosity. What was the private company, and why had its name been deleted from the expert’s CV? A subsequent investigation into the private company revealed that it was a product of a joint venture between the university and yet another unfamiliar private company. Thus, the expert was not technically a graduate of the university proper, but rather of a public-private partnership separate and apart from it. The private company’s certificate was something different than one coming directly from the university. The fact that the expert had removed the private company’s name from the CV suggested intent to better one’s credentials.
During the deposition, we tendered the 2012 version of the CV to the expert, who confirmed that it was a true and correct copy of the “most current” CV. Then, we pursued the following:
Q. Just because there was a period there when we didn’t have it, and I’m mainly doing this just to see how good my Internet research is, we had found an older version of the CV.
Q. I’m going to hand you the Exhibit 4, which is a copy of an agenda from a [state industrial commission] seminar, which took place in the year 2000. Do you remember speaking and being a part of that seminar?
Q. Let me hand you Exhibit 5, which I’ll represent to you is a list of the bios of the speakers that were present at that seminar. I think yours is on page 22 or 21. Does Exhibit 5 contain a true and correct copy of your CV, as it existed at that time?
The expert was surprised—but impressed—that we had tracked down and located the older version of the CV. Thus, during the deposition, the expert confirmed both the authenticity of the 2012 version of the CV and the 2000 version of the CV without being specifically questioned about the private company issue and the removal of its name from the CV. Accordingly, the expert was perfectly set up for the issue on cross-examination during a later trial of the matter. During the trial, the expert could have been confronted with the discrepancy in the two CVs—both of which she had confirmed as true and correct—and forced to address the reason for the omission.
The Internet is not the only way in which to learn how an expert has massaged inconvenient biographical facts. Any opposing expert well into his or her career has offered a wealth of testimony, and locating past trial or deposition transcripts should not be difficult. Again, comparing the early, inexperienced expert’s testimony to that of his or her later, more sophisticated self’s can yield interesting impeachment fodder (all of which, of course, is under oath). One expert that we’ve deposed in transportation litigation testified in early depositions that he had, in fact, graduated from high school but later obtained a GED that same year. In his later depositions, however, he began to testify that he had graduated from high school but simply didn’t attend college. That same expert testified in his early years as an expert that he had once been fired from his position at a large transportation company. “I was fired,” he once testified in an early case. However, in his later depositions, he learned to say that he “wasn’t fired” but had simply “agreed to be pulled out of service.” An attorney unfamiliar with the prior testimony might have simply taken the subsequent statements at face value. However, the prepared attorney, by virtue of such research, can confront the expert or lay the groundwork for a trial.
Speaking of the Wayback Machine, try inputting an expert’s official website address into its search engine and see how many previous versions of the website become available to you for your review. Sometimes, you can access versions of that expert’s site dating back a decade or more, allowing you to undertake the same type of comparison mentioned above with CVs.
If a defense attorney can obtain the historic representations that an opposing expert has made and compare them to his or her current statements, some issues can be made of that spin. Again, the size and scope of an attorney’s particular case dictate the extent, if any, that the attorney should embark upon such background research. However, these days, with the prevalence of expert databases and the ease of Internet research, the cost may not be immense.
Published by Defense Research Institute
The Voice Newsletter
Volume 13, Issue 29
July 23, 2014