Paper Experts, Part II: How a CV Can Create Apparent Experience

Last week, we had Part 1 of our two-part discussion regarding how an expert's curriculum vitae can create the impression of experience that an expert really does not have.  Today, as promised, here is Part 2.

Dan Valentine

Jim Cohen

Paper Experts: How a CV Can Create Apparent Expertise: Part 2

For Part 1, click HERE.

Published Papers

Experts may publish papers in their areas of expertise. Usually, the perception is that more published papers represents greater expertise. Peer reviewed papers typically reflect greater respect for the author, and published books are viewed as even greater qualifiers.

While there is some validity to this perception -- it is difficult to write a technical book or paper without associated knowledge – there are also methods by which individuals may exploit this. One common method is to publish multiple papers based on the same information, where slight changes to the original (and legitimate) paper allows for several more to be published. Even if there is only a single, legitimate paper, it is possible that the named authors may not have contributed equally. Often, the junior author does most or all of the work, whether in the writing or the actual project/research, and the senior author edits and approves. Authors may also simply be added if there was any involvement on the project, though not the paper, and therefore were considered to have offered some slight contribution.

It is also important to distinguish between the paper that was published and the paper that was presented. While it is not necessarily true that it is more difficult to publish than present, it is certainly the case that it is easier to present repetitively than to publish. For multiple presentations, there may be written documentation, but this is often not necessary to the presentation and, each time the topic is presented, the title may change.  Professions may do this regularly – such as using the same materials for a continuing education program, reusing the same presentation for a later program or an in-house seminar, and claiming both presentations as credentialing experiences. 

Authoring a book takes much greater effort and, typically, greater expertise. But not all books should be regarded as demonstrative of high credentials. One method of reducing the necessary effort is to be a compiler of others’ work, as may occur in handbooks where each chapter is contributed by a different author.  Yet another is to split one book into multiple volumes, thus trebling or more the apparent expertise of the author. This is not to say such expertise is invalid, but rather that the extent of expertise may be misrepresented and should be closely examined. It is important to note that these decisions are more likely to have been made by the publishing company than by the author and would therefore not reflect on any attempt by the author to deliberately “pad” their CV.

Professional Research

Professional research is typically reflected in published papers or specific research-related projects. The issues associated with project lists, published papers, and professional research are very similar. There is the possibility of misrepresenting a single research project by dividing it into multiple segments, each with its own title potentially resulting in one or more papers. Similarly a single project’s funding may be split into multiple phases and then presented as multiple projects. Consequently, the number of research projects and associated papers do not necessarily reflect the size, duration, or complexity of the research.

There is also the opportunity to exploit project submissions which did not result in any specific project or research, referring to these as “studies” or similar. PowerPoint presentations based on these “studies” could be prepared and then listed as individual papers or presentations.

Membership in Professional Organizations and Committee Involvement

Most experts are involved in industry-related organizations for any number of reasons, including simply to receive the organization’s publications, to attend seminars and conferences at discounted prices, or to be able to list the membership as a means of demonstrating expertise. Another reason may be to participate actively within, and contribute to, the organization.

Although the number of organizations to which an individual belongs does not necessarily mean that the expert is trying to inflate his or her expertise, listing membership in multiple organizations without the investment of time and energy to assist that organization in its mission does suggest possible false advertising. There may also be a difference in membership category. For example, in the American Bar Association, there are full members and associate members, but a non-attorney cannot be a full member. In the American Society of Civil Engineers, full members must be licensed professional engineers; however, in ASTM International there are no such restrictions on society membership or committee membership. Satisfactory responses to questions related to attendance at organizational meetings, conferences, or other contributions may provide the assurance needed.

Similarly, membership in those organizations’ committees may also indicate a high level of expertise; however, a committee membership may be in name only. While many committees may limit their membership to recognized experts in their fields of interest, others may have open memberships. Additionally, committees may be technical or non-technical.  Membership on an administrative committee may reflect interest in the organization, but it is not reflective of any expertise.

While discouraged by most organizations, it is often possible for an organizational member to join committees but not participate. When confronted with an impressive list of committee memberships, careful questioning with regard to attendance and participation in committee activities may reveal possible intentional padding of a CV.

Awards

Awards, almost regardless of source, are generally regarded as recognition of achievement. But the achievement itself may be for many things, including but not limited to length of service, financial contribution, project excellence, and expertise. Awards may be to individuals or organizations.

Where awards are listed on a CV, the reason for the award needs to be determined. Was this for an activity reflecting expertise? Was this a team or individual effort?  If it was a team effort, to what extent did the individual participate in and contribute to the work?

Testimonial Experience

As attorneys recognize, not all times when an expert testifies in a case are alike.  Investigation of testimonial experience should include questions such as:

•  In what capacity did the expert testify – as a fact witness, or as an expert to an entire case related to liability and damages, or somewhere in between? 
• Did the expert testify at an arbitration or at trial? In a deposition only? Federal Court or State Court?
• Did the expert testify on behalf of the plaintiff or the defendant? 
• Does the expert normally testify only for a certain project participant, such as testifying only in favor of owners in finding that an architectural firm has breached its standard of care?  
• Which side prevailed, and, if not on the ‘winning’ side, was this due to a legal issue as opposed to the strength of the testimony? 
• What were the case names?

It is important to note that some of this information may not be available to an expert so that it may be necessary to obtain information from an attorney who engaged the expert previously. 

Federal Rule of Civil Procedure 26(a)(2) requires testifying experts to provide a list of all other cases in the previous four years in which the witness has testified as an expert at trial or by deposition. But all testimony is not the same. An expert who has testified only in arbitrations has not seen their credentials challenged or tested by a Daubert motion. Similarly, an expert who has testified only in state courts may not have been subjected to the rigor of a challenge in federal court. 

In addition, a four-year period for testimony is not all that much information, and may only provide a few instances of testifying for a construction expert. That amount of time might even hide cases in which the expert tried to testify but was not accepted by a court based on a lack of expertise in the particular field in which you seek his or her testimony.

Just as suspect may be the expert whose testimony has never made it past the deposition stage in a case. If the expert never testifies after the deposition stage, there may be good reasons for it. Perhaps every single case the expert has analyzed has settled, but it is worth considering why that happened.  Of course, it could be “bad luck” that the expert has never testified in a federal court trial. On the other hand, it could be that the expert’s past attempts at testimony were so lacking that the expert’s clients took whatever they could get. Or, the expert may not have made it past a Daubert challenge.

In certain cases, the side of the case on which the expert testified matters as well.  Does the expert only testify to promote delay claims? Is the expert only on the plaintiff’s side in construction defect matters or work on behalf of insurance companies? Does the expert always work with the same law firm? Does the expert’s company provide work to the law firm? Does the expert only work on behalf of general contractors, or subcontractors, or owners, or architects? While such matters may not affect the expert’s ability to be qualified to testify, and should not affect their opinion, it may affect how a fact finder views the expert.

Finally, and especially when dealing with the “make-or-break-the-case” experts, the experts should be willing to consent to the attorneys contacting any or all of the attorneys who worked with the expert previously. Attorneys who worked with the expert previously should be able to confirm the details of the expert’s engagement in a particular case, the type of case, the subject matter on which the expert testified, and the result of the case.  

Summary

As evidenced above, factual information regarding a potential expert’s credentials can be misleading, even if not intended as such.  The key is to always ask yourself if your understanding of the expert’s credentials is based upon facts or upon assumptions and inferences drawn, for better or for worse, from those facts.  If it is the latter, then ask questions to validate or negate those assumptions and inferences.    Indeed, one of your first goals in hiring an expert should be to see how they stand up to cross examination regarding their credentials.  Just be sure that the first time you see that examination is when you are the one performing it – not your opponent.