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Litigation Resources: Expert Witness Tools

Introducing the Experts!

Expert witnesses are a part of the discovery portion of the case.  Experts are hired when facts are in dispute: did the doctor follow the standard of care in that situation?  Did the company use the correct pipes in their products for that purpose? 

 

Sometimes experts are used to consult on a case (called consulting experts), and some experts are used to testify (called, you guessed it, testifying experts).  Testifying experts introduce evidence in the form of testimony (either during depositions or trial), and via affidavits and reports.

 

This guide only discusses testifying experts.

 

Federal Rule of Civil Procedure 26 contemplates experts.

  • Westlaw FRCP 26, Duty to Disclose; General Provisions Governing Discovery
  • Lexis FRCP 26, Duty to Disclose; General Provisions Governing Discovery

 

Federal Rule of Evidence 702, Testimony by Expert Witness

 

One important case you'll often see when expert witnesses are mentioned is Daubert.

The links below will take to you some general toolkits and resources pertaining to expert witnesses.  They're geared towards practitioners, not students, which is great because they're 1) meant to be practical 2) meant to be read by busy people.

 

Westlaw's Practical Law Litigation: Expert Toolkit (Federal)

Image shows the top of Thomson Reuters Practical Law Expert Toolkit (Federal)

 

Lexis' Expert Witness Resource Kit (Federal)

Image shows the top of Lexis' Expert Witness Resource Kit (Federal)

Quote: The four words a new lawyer never wants to hear a senior attorney utter in the middle of trial are, “Who hired this person?”

 

Ronald M. Sandgrund, Your First Expert Witness-Part I, Colo. Law., May 2011, at 93


So, you know you need an expert witness, maybe even multiple ones.  How do you find one beyond random Google searches?  Westlaw has the edge over Lexis in this situation.  While Lexis has databases where you can search expert CVs, finding them depends on 1) what they write in their CVs and 2) your skill in crafting Boolean searches to find appropriate experts.

 

Also!  Another checklist: Westlaw's Locating an Expert Checklist.

Shows a screenshot of Westlaw's Locating an Expert Checklist

 

Westlaw's Expert Materials Databases


 

Image of Westlaw's main page with a purple arrow next to the Expert Materials link

 

To identify experts, you have two options on Westlaw (Lexis is listed below): Expert Directories and Expert Profiles.  Check out Profiles FIRST.  You can expand the area of expertise to locate witnesses who have experience, for example, in boating accidents and accounting damages to help determine what's an appropriate amount of damages to claim in your client's boating accident case.

 

Shows a selection from Westlaw's expert materials page, with Expert Directories and Expert Profiles highlighted.  The comment 'try this one first' is next to Expert Profiles.Image shows a selection from Westlaw's Expert Profiler database


NB - DO YOUR DUE DILIGENCE!

 

If you find a potential expert witness via Google (or Westlaw, or whever), your job is NOT done!!  OR, once opposing counsel has disclosed their experts to you, YOU HAVE WORK TO DO!

 

Medical Physicians

  • Check the state licensing board to make sure their medical license is valid.  From here, you can often check ethical complaints against that medical professional, too.  How to find that?  You can Google terms like: Minnesota medical doctor license verification.  ALWAYS include your jurisdiction in your search terms!
  • Has your doctor received money from pharmaceutical companies/drug device manufacturers?  How much?  When?  This can help you defend against OR discredit an expert.  ProPublica's (free & accessible) Dollars for Docs database will answer all those questions for you!
  • Has the expert in question written about the topic at hand?  Search for their name in PubMed!

 

Other Types of Experts

  • Lots of fields require a license (accountants, engineers, nurses, barbers, etc.) ALWAYS be sure to check the status of their license with their state professional board!
  • Other types of scholarly articles can be found via JSTOR (which you have access to via UST), or ResearchGate (which you can get your own free subscription to).  Even it seems like a long-shot, just run the search in PubMed, in case they've authored/co-authored something with medical implications, too.

 

Sample expert witness retainer agreements can be found throughout Westlaw and Lexis.  However, the ones linked before also include Practice Notes, which give commentary on the various clauses, explanations for various phrases, and excellent warnings and advice for attorneys (and law students!)

 

Westlaw Sample Expert Retainer Agreement

Image shows a sample of a sample retainer agreement available on Westlaw


Lexis Practice Note Sample Expert Retainer Agreement

Image shows a sample of Lexis' sample expert retention agreement

 

 

Westlaw's Practical Law: Depositions: Deposing an Expert (Federal)

Screenshot from Westlaw Practical Law's Deposition - Deposing an Expert Federal


This lists out questions you should be sure to ask the expert being deposed!  Be sure to check this one out!  Lexis Practical Guidance: Depositions: Expert Witness Deposition Outline (Federal)

Screenshot from Lexis Practical Guidance: Depositions: Expert Witness Deposition Outline (Federal)

Daubert challenges (aka Daubert motions) seek to exclude presenting evidence by one expert (testimony or report) to the jury.  Named after the 1993 Supreme Court case, Daubert v. Merrell Dow Pharm., Inc., you can't effectively use experts without having some knowledge of how this case will affect your expert's admissibility.

 

Helpful links:

Federal Rule of Civil Procedure 26, Duty to Disclose; General Provisions Governing Discovery

  • Westlaw FRCP 26, Duty to Disclose; General Provisions Governing Discovery
  • Lexis FRCP 26, Duty to Disclose; General Provisions Governing Discovery

 

Federal Rule of Evidence 702, Testimony by Expert Witness

 


Westlaw's Practical Law Experts: Daubert Motions

 

Screenshot from Westlaw Practical Law's Experts: Daubert Motions Practice Note


Lexis Practice Note: Daubert Motion Standards Chart (8th Cir).

Screenshot of Lexis Practice Note: Daubert Motion Standards Chart (8th Cir).


Lexis Practice Note: Daubert Motion: Making the Motion Checklist (Federal)

Screenshot of Lexis Practice Note: Daubert Motion: Making the Motion Checklist (Federal)


Links to other helpful resources:

Toolkits & Checklists

The links below will take to you some general toolkits and resources pertaining to expert witnesses.  They're geared towards practitioners, not students, which is great because they're 1) meant to be practical 2) meant to be read by busy people.

 

Westlaw's Practical Law Litigation: Expert Toolkit (Federal)

Image shows the top of Thomson Reuters Practical Law Expert Toolkit (Federal)

 

Lexis' Expert Witness Resource Kit (Federal)

Image shows the top of Lexis' Expert Witness Resource Kit (Federal)

 

Due Diligence Once You've Found Your Expert

NB - DO YOUR DUE DILIGENCE!

 

If you find a potential expert witness via Google (or Westlaw, or whever), your job is NOT done!!  OR, once opposing counsel has disclosed their experts to you, YOU HAVE WORK TO DO!

 

Medical Physicians

  • Check the state licensing board to make sure their medical license is valid.  From here, you can often check ethical complaints against that medical professional, too.  How to find that?  You can Google terms like: Minnesota medical doctor license verification.  ALWAYS include your jurisdiction in your search terms!
  • Has your doctor received money from pharmaceutical companies/drug device manufacturers?  How much?  When?  This can help you defend against OR discredit an expert.  ProPublica's (free & accessible) Dollars for Docs database will answer all those questions for you!
  • Has the expert in question written about the topic at hand?  Search for their name in PubMed!

 

Other Types of Experts

  • Lots of fields require a license (accountants, engineers, nurses, barbers, etc.) ALWAYS be sure to check the status of their license with their state professional board!
  • Other types of scholarly articles can be found via JSTOR (which you have access to via UST), or ResearchGate (which you can get your own free subscription to).  Even it seems like a long-shot, just run the search in PubMed, in case they've authored/co-authored something with medical implications, too.