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 résumés say they have?
It’s a question a lot of lawyers in the state may be pondering after a recent expert witness debacle in Hennepin County.
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 month 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 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 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 ‘résumé’ or ‘curriculum vitae’ doesn’t mean that we can rely on that document,” he said. “This is kind of a heads up.”
Finding an expert
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 that 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 (MSBA) 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.
“We tend to go to those who have demonstrated the capacity for being competent and have testified in the past and been subject to scrutiny in a court of law,” Schneider said.
Minneapolis employment law defense attorney Penelope J. Phillips agreed. “Most lawyers ... have a set group or list of experts that we always go to for a certain issue,” she said.
Schmidt noted that is true of the criminal defense area as well. “It’s a pretty small community,” she said. “[Résumé falsification] doesn’t happen that often. You get to know who the people are that are reputable.”
Stearns County Attorney Janelle P. Kendall said that prosecutors generally use the same experts over and over, and there is rarely any question about their qualifications. “The people we use tend to be people who have been doing this for a long time,” she said. “As prosecutors, we don’t want to call someone who is new or unknown or untested.”
But Minneapolis commercial litigator Charles F. Webber stressed the need to be careful when going back to the same experts time and time again.
“We all have our favorite experts — not because they say what we want them to say, but because they are people who will be straight and honest with us and are not simply ‘yes men,’” he said. “But be careful about that and try to mix it up a bit.”
Check it out
One option to avoid an unpleasant surprise regarding the validity of an expert’s qualifications is to check out every statement in his or her résumé — an option that few attorneys find appealing.
“It’s not impossible, but it’s not something you’d be inclined to do on every case,” Dornik observed.
Schmidt agreed. “Whether it’s a criminal or a civil case, we probably should try to check that out and make sure the expert’s credentials are what they say they are,” she said, adding, however, that most curriculum vitaes are very long and in most cases it is cost prohibitive to check out the entire document.
In fact, the attorneys who talked with Minnesota Lawyer said that they rarely, if ever, check on the accuracy of the assertions made in an expert’s résumé.
“To some extent you have to assume they are telling the truth,” Dornik observed.
Dornik conceded that it’s possible that a curriculum vitae “could be doctored up” and that the attorney may not catch the errors. He said that he does some “sleuthing” but doesn’t go so far as to check into the expert’s academic degrees.
“I tend to assume that if the person works at a reputable school, someone has already checked them out,” he said. “Or if the person is the chair of the economics department at a major college, chances are that he or she is a great economist.”
St. Paul insurance defense attorney Brett W. Olander, who chairs the MSBA Civil Litigation Section, makes similar assumptions. “I look for people who are board certified,” he said. “If they are then I assume that they have been scrutinized previously.”
Olander added that when he finds an expert he hasn’t used before, he does some checking around about the person, but doesn’t necessarily look into the statements made in a curriculum vitae.
Webber said that due to a bad experience involving an expert witness, he is now more careful about checking out their backgrounds. He explained that last summer he learned that his expert in a case, who had claimed to be a certified public accountant, was no longer certified. His certification had lapsed, along with his inclusion in several professional organizations he claimed to belong to. “The credibility issue is a lot higher on my list now,” Webber observed.
Accordingly, Webber now goes through an expert’s résumé with the person early on in the case, making sure that everything in it is current and 100 percent accurate. He acknowledged that while this may not help in cases where the expert is outright lying, “it at least catches cases where it is just a matter of sloppiness or inadvertence” on the part of the expert.
Lawyers are divided on how often experts falsify credentials. Some said it hardly ever occurs, while others believe it is more common.
Schwebel told Minnesota Lawyer that it is “extremely unusual” to encounter the level of fraud involved in the Hennepin County case. He noted that he has never run into anything like that in his own practice.
However, Schwebel went on to say that he has seen experts falsify testimony as to the amount of money they make serving as expert witnesses or the amount of time they spend testifying. Some have even falsified the percentage of time they spend testifying for plaintiffs verses for the defense, he observed. “It just goes to show that you can’t be too careful.”
Schmidt also believes that what happened in Hennepin County was unusual. “I am not sure if it’s rare because it doesn’t happen or that people simply don’t check,” she added.
Webber said that experts have an important job and most can be relied on to tell the truth about their qualifications. “Most are conscientious and do a good job and their credentials are what they say there are,” he observed. “Their credibility is their stock in trade.”
But Schneider asserted that inflation of expert credentials is not necessarily a rare occurrence. He explained that he has on occasion declined to use an expert because someone alerted him to the fact that the expert may be overstating his or her credentials.
“I don’t want a ‘nuanced’ curriculum vitae or résumé,” he said. “This is not unique. This happens.”