As an attorney, you will probably retain a forensic expert for a prospective litigation or investigation.
How will you know whether this person was qualified to perform the work? Could they withstand the scrutiny of cross-examination?
How will you vet the person to determine whether they are qualified as a partner for your legal case?
The 2009 National Academy of Sciences report offered recommendations for improvement of the forensic sciences. Specifically, the recommendations were made due to a lack of a scientific approach used by practitioners in many forensic disciplines. In 2016 the National Institute of Justice (NIJ) published a directive stating the phrase, “To a reasonable scientific certainty” may not be used by a forensic expert in their reports without quantitative data to substantiate the claim, https://www.justice.gov/ncfs/file/788566/download. The NAS report stated there is too much subjectivity in many forensic reports.
Relying on an unqualified forensic expert can kill your chances of prevailing in your case. You may even be led to pursue a case that cannot be successfully sustained.
It’s imperative that you always have a qualified forensic expert on your side who will not be destroyed in deposition or on the witness stand in the trial.
Not all forensic experts are created equal. This article takes you through some steps for vetting your forensic expert.
Evidence Code Requirements
Federal Rules of Evidence §702 in California evidence code §802, define rules that are required for a forensic expert to testify as to their opinion. They require the forensic expert to possess specialized skill, knowledge, education, experience or training such that they have special abilities that can assist the trier of fact.
When conducting your interview, find out how many of the five abilities the forensic expert has. You also need to assess whether they can stand up to examination in deposition or cross examination during trial.
A key requirement not in evidence code
The forensic expert you retain may possess special skills, education, and knowledge of the subject matter of the case. However, they need to be able to go several steps further to contribute to your success.
The forensic expert needs to be capable of conveying an opinion in lay language. Your expert must be skilled at writing a report that is sufficiently detailed to be bulletproof yet is understandable by a person who is not an expert in their discipline. Ask your prospective forensic expert for a sample report from the prior case that went to trial.
You must know whether they are capable of verbally explaining their opinion in language that is understandable by a judge and/or jury. Have them explain how they reached the opinion stated in the sample report. Do they use stories to convey the concepts of the report?
Social media is your friend
To check your forensic expert’s validity, social media is your friend. The Internet is a valuable tool to help you easily vet your forensic expert.
Use Google, Bing, or other search engines. Using multiple engines will reveal different information. Explore the expert’s profiles and posts on LinkedIn, Twitter, Facebook, Pinterest and other social media sites.
Frequently if the person is a member of a professional forensic expert trade organization, your search will reveal this. If they speak at conferences or publish papers in journals or write books, you will also find this information.
Read their posts. Their chosen words, pictures, and links to other sites will prove valuable in helping you to understand them. You might also find information that your opposing counsel could use in an attempt to impeach your witness.
To conduct your due diligence on the Internet, type the expert’s name, in different ways, into several search engines. For example, type in Mike Wakshull and Michael Wakshull.
Find out what comes up. Where did the expert go to school? Where did they get their training? Do they have a CV online? You will find a lot of information about the person.
This information is publicly available. As an attorney or a paralegal, you have access to LexisNexis. Use it to find other cases the forensic expert has worked on.
Visit the websites of the organizations of which they claim to be a member. Many forensic expert organizations post the membership list online.
Also, type the name of the person’s company into the search engine. Visit their website and spend some time exploring different aspects. Their words, videos, and links can speak volumes.
In some instances, I have learned valuable information about an opposing examiner from my retaining attorney. In one case the attorney had done extensive research on LexisNexis about an opposing examiner. The examiner had opined that the signature on a warrant was a forgery, even though the judge who had signed the warrant said, “I remember signing that. And that’s my signature.” The other examiner stood behind his statement that the signature was a forgery.
Use whatever online tools are at your disposal to detect useful information before you hire, and then again to investigate the opposing expert.
An example from a deposition
In one of my cases, I had discovered detrimental information about the opposing examiner that was readily available on the Internet. In deposition, my client attorney was able to show examples of other cases where this forensic expert had incorrectly presented evidence to support the side that retained him.
If the opposing attorney had typed his examiner’s name into a search engine, he would have discovered that his expert had been expelled from a leading forensics organization.
When the case went to trial, it was easy for me to demonstrate that the opposing examiner had skewed the evidence to make it appear to support the side that hired him.
Are the examiner’s credentials valid for the case?
There’s a forensic document examiner in Southern California who includes diplomate on his CV and website. The problem is, the organization where he got his diplomate certificate offers neither training nor credentials for forensic document examiners. The organization does offer a diplomate certificate in other disciplines and a general forensics diplomate certificate.
Not only do you want to discover where the examiner got their education and training, find out if the organization offers a credential in that area of expertise.
Does the forensic expert have the equipment necessary to perform the work? Review their CV to learn how they maintain current knowledge in the discipline. Do they speak before their peers or publish in journals?
Know the organizations
A variety of organizations offer valid certifications in different forensics programs.
Regarding forensic document examination, for example, the Board of Forensic Document Examination (BFDE) offers a valid certification that is well-recognized in the industry.
There is also the ABFDE, which is the American Board of Forensic Document Examiners. The difference is the membership. BFDE consists mostly of private examiners. ABFDE’s members are mostly current and prior government examiners. Both associations are valid.
The National Association of Document Examiners and Scientific Association of Forensic Examiners also offer valid certifications. East Tennessee State University offers a graduate school certificate in forensic document examination.
What is the motive of the examiner’s trade organization?
Learn whether your prospective forensic expert is a member of a respected trade organization. Ask them whether their organization is a registered 501c(6) not for profit organization.
Organizations such as these require their members to subscribe to a code of ethics. A typical code of ethics requires members to remain neutral as to the parties to the case. They are advocates for the evidence. NIJ published a National Code of Ethics for the Forensic Sciences https://www.justice.gov/ncfs/file/788576/download.
Since no profit motive is involved in a nonprofit organization, and the officers and members of the organization are forbidden from gaining financially, you are assured that the members’ purpose in the organization is for education, networking, and maintaining currency in the field.
On the other hand, there are for profit businesses that pretend to be certifying organizations. They teach the subject of forensic document examination, and when the student completes the course, they receive a certification in forensic document examination as a completion certificate.
Many of these “certified” examiners have little or no experience.
Your due diligence will prove to be valuable
As a legal professional, it is imperative that you learn the details about the background and skills of forensic experts with whom you will partner on your case. This is especially true for cases where you will retain a forensic expert who is not required to hold licenses or to have specific education for their forensic disciplines.
Always assume that the parties on the other side of your case will perform their due diligence.
There are tools available to make your investigation into the person relatively easy.
When you perform an extensive investigation, not only will you greatly reduce the chances of being surprised by the other side, but you will have a qualified forensic expert on your side. Retaining a forensic expert with strong credentials and credibility will greatly strengthen the position of your case.