Lawyers discuss their practices for checking expert qualifications

St. Louis Daily Record & St. Louis Countian, Oct 29, 2005 by Michelle Lore

This article was originally published in Minnesota Lawyer, a sister publication.

Qualified expert witnesses are an important part of many legal matters, often making or breaking a case. But how far do attorneys have to go to make sure their experts have the qualifications their resumes say they have?

It's a question a lot of lawyers in the state may be pondering after a expert witness debacle in Hennepin County, Minn.

A man who had been used as an expert in several civil commitment determinations throughout the state is facing felony perjury charges in Hennepin County for allegedly inflating his credentials. Michael Nilan was charged earlier this year with three counts of perjury and three gross misdemeanor counts of practicing psychology without a license. The incident has caused litigators across the state to reassess their own expert witness practices.

Duluth, Minn., med-mal defense attorney Charles B. Bateman told Minnesota Lawyer that when he receives an expert's curriculum vitae, he pays particular attention to anything on its face that might invite an attack, but he rarely goes so far as to check the accuracy of an expert's stated qualifications.

We generally take experts on their word on something like that, he said.

Willmar, Minn., products liability attorney Ronald H. Schneider said that the incident should be an eye-opener for attorneys in all practice areas.

If there is a lesson in this, it is simply that just because a document is captioned 'resume' or 'curriculum vitae' doesn't mean that we can rely on that document, he said. This is kind of a heads up.

Attorneys employ a variety of techniques to find qualified experts. One of the most common methods is to network with other lawyers who work in the same practice area.

Another one is to contact academic institutions. Minneapolis plaintiffs' personal injury attorney James R. Schwebel said he has put notices up at universities that his firm is seeking consultations with those with expertise in certain areas. He will also go to specialized schools, like engineering schools or vocational technical colleges, to find experts in specific areas.

Minneapolis attorney John M. Dornik, who also represents injured plaintiffs, does the same thing, looking for experts in the top of their field who are adept at teaching the subject to others. I go out, and I find my experts and work really hard at it. You get the best folks that way, he said. It takes work. You don't just open a phone book. Bateman agreed, explaining that he looks for top- drawer people who are also good teachers - people who are able to explain their profession to others. There are wonderful physicians who are not good at that, and there are bad physicians who are good at it, Bateman observed. I want a good physician and a good teacher.

Attorneys said they also search for published articles in the areas in which they are seeking experts.

Schwebel explained that if he needs an expert on a particular medical procedure, he determines who the doctors are that are writing about that procedure. He will also search trade publications to find those who have written on the topics in which he needs an expert.

The Internet has made it much easier to find those articles, he noted. Being published is a good sign that they are qualified.

Several of the attorneys who talked to Minnesota Lawyer said that to find an expert they sometimes utilize professional expert services, although they do so sparingly.

Those experts are frequently vulnerable to attack by opposing counsel because such a high percentage of their work is related to giving testimony, Schwebel explained, adding that an ideal expert is one who has expertise and conspicuous impartiality.

I want someone who hasn't testified a lot - someone who is smooth but not a professional expert, he said. [I want] someone who doesn't make a living as an expert witness.

Dornik agreed, noting that he generally seeks out new people - those that aren't professional experts. But if I use them too many times, that is what they become, he pointed out.

Schneider observed that lawyers are in a difficult situation when it comes to finding good experts. If an attorney keeps going back to the same expert every time, the attorney may be accused of having an illegitimate alliance with the expert. The argument is that expert is biased and will simply say what he or she is told to say, Schneider observed.

Defense attorney Carolyn Agin Schmidt, chair of the Minnesota State Bar Association's Criminal Law Section, said that if an expert has the potential of being viewed as biased or not being independent, she simply would not use that person.

I don't want to look stupid, she said, explaining that using such an expert would hurt her client as well as tarnish her own reputation with the court and opposing counsel. Plus, you've got to pay for the expert, so you want the best.

At the same time, however, many lawyers like to employ experts they have used before because for the most part their credentials have been well established.