How to Conduct Due Diligence When Hiring a Forensic Expert

What to Ask and Look for When You Need a Forensic Expert

In today’s legal environment, it is not sufficient to present unsubstantiated evidence. Many subject matter experts do not properly substantiate their findings. When hiring a subject matter expert, careful screening is crucial to choose an expert with superior skills and credibility. This article presents methodologies by which you can perform proper due diligence on your prospective subject matter expert.

Have you hired or interviewed a forensic expert to partner with on a case?  Did you know whether this person was qualified to perform the work?  Could they withstand the scrutiny of cross-examination?  How did you vet the person to determine whether or not they were qualified as a partner for your legal case?  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 is imperative that you always have a qualified person 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.

[su_pullquote align=”right”]Resources:

When Retaining Counsel Becomes an Expert’s Greatest Risk

Eight Strategies that Attorneys Use to Destroy Valuation Experts

Ten Ways Attorneys Kill Their Own Experts and Ten Ways Experts Can Protect Themselves

Master Analyst in Financial Forensics (MAFF)

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Evidence Code Requirements

Federal Rules of Evidence 702, define rules that are required for a forensic expert to testify as to their opinion.  They require the expert to possess specialized skill, knowledge, education, experience, or training such that they have special abilities that can assist the trier of fact.  Notice the operative word “or.”  Not all of these abilities are required.  Someone with only one of the requirements may be able to testify in the matter.  However, this person may not be qualified to help you.  They may not have the specialized knowledge your case requires.  The evidence code for many states, including California Evidence Code section 801 and 802, restate the requirements of Federal Rules of Evidence.  Therefore, when conducting your interview, you need to find out how many of the five abilities the person 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 expert you retained 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.  They need to be capable of conveying an opinion in lay language.  Your expert must be skilled at writing a report sufficiently detailed to be bulletproof, yet is understandable by a person who is not an expert in their discipline.  To be prepared in the event that your expert is called for deposition or must testify at trial, you must know whether they are capable of verbally explaining their opinion in language that is understandable by a judge and/or jury.

Social Media is Your Friend

To check your 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 trade organization, your search will reveal this.  If they speak at conferences, 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.  The point is, this information is publicly available.  If you are an attorney or a paralegal, you have access to LexisNexis.  Use it to find other cases the person has worked on.

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.  From this research, I learned new information about the other examiner I was not aware of.  The examiner opined the signature on a warrant was a forgery, even though the judge who 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 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 examiner had incorrectly presented evidence to support the side that retained him.  After my attorney client deposed the other examiner, I asked him, “What was the other attorney’s response when you asked the questions about his examiner’s background?”  He said, “He put his head in his hands and he put his head down.”

If the opposing attorney had simply typed his examiner’s name into a search engine, he would have discovered that his expert had been expelled from a leading forensics organization.  Do not let this happen to you.  Check the Internet before you hire.  When the case went to trial, it was easy for me to demonstrate that the opposing examiner had skewed the evidence in order to make it appear to support the side that hired him.  When he was asked how he measured the angle of a portion of the writing in question, he stated that there was no valid way to measure it.  At the same time, he commented on the angle of the writing.  I was able to demonstrate that the evidence he supplied actually supported my opinion.  My retaining attorney won a mid-six-figure award, plus punitive damages for fraud for his client.

Are the Examiner’s Credentials Valid for the Case?

There is 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.

Is the Organization Issuing the Certification Legitimate?

A question to investigate is, “How legitimate are the certifying organizations?”  If the organization is offering certifications and diplomates, yet they teach nothing in the discipline, and they are willing to certify anyone, then you have a problem.  PBS Frontline investigated an organization where a document examiner claimed to have earned a diplomate certificate.  The reporter, who had no background in forensics, was able to get a certification as a forensic consultant from the organization by submitting an application, taking a 90-minute class and passing a test.  In a situation like this, the certified individual will be taken apart on cross examination if the opposing attorney has conducted proper due diligence.

Is the Examiner Accurate and Honest About Their Experience?

I went to graduate school for forensic document examination at East Tennessee State University.  They offer a four-semester program in forensic document examination in the Graduate School of Criminal Justice.  At the end of the program, students with a passing grade receive a Certificate in Forensic Document Examination.  East Tennessee State’s website clearly states, “This is not a substitute for apprenticeship.”  I have been asked both in deposition and on cross examination, “Did your training qualify for apprenticeship?”  The correct answer is, “No.”  The attorney who was asking me had a print-out from the university’s website.  Had I said yes, I would have been asked, “Well, why would you say yes, but it says no here?”  It is important to make sure the examiner is being accurate, and is also being honest about what their program offered.

Know the Organizations

A variety of organizations offer valid certifications in different forensics programs.  Regarding 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 is comprised of prior government examiners.  Both associations are valid.  The National Association of Document Examiners offers a CDE (Certified Document Examiner) certification and Scientific Association of Forensic Examiners offers a CFDE™ (Certified Forensic Document Examiner) certification.  Both CDE and CFDE are valid certifications.

What is the Motive of the Examiner’s Trade Organization?

Learn whether your prospective forensics examiner 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.  From my experience, most attorneys say, “I want the truth, because I want to know whether I actually have a case here.  I don’t want you to tell me what I’m hoping to hear.”  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.  Several years ago, a student from one of these schools told me she was completing the course.  A few weeks later, she posted on the Internet that she had experience working on cases in many states and was certified.  In another instance, a student from one of the schools was asked in deposition, “Can you tell me about the case you worked on in Pennsylvania?”  The answer was, “I have no idea what you’re talking about.”  The Pennsylvania case was listed on her CV.  Often these schools give a case from another state to the student as an example during their education, and then tell the student to claim that they worked on cases from that state.

Your Due Diligence Will Prove to be Valuable

As a legal professional, it is imperative you learn the details about the background and skills of subject matter experts with whom you will partner on your case.  This is especially true for cases where you will retain people who are not required to hold licenses or to have specific education for their 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 expert on your side.  Retaining an expert with strong credentials and credibility will greatly strengthen the position of your case.

Mike Wakshull, MS, CQE, PMP, CISA, is a forensic document examiner based in Temecula, CA. He holds a graduate school certificate in forensic document examination from East Tennessee State University and a master’s degree in Technology Management from the University of Denver. Mr. Wakshull was Chair of the 2012 National Association of Document Examiners Conference in San Diego and was Chair of the 2015 and 2016 Scientific Association of Forensic Examiners’ international conference. As a member of National Speakers Association, he regularly speaks to local and international legal and forensic meetings and conferences. He has been qualified as an expert witness in California Superior Courts and Federal District Court, testifying in cases involving will contests, contract disputes and others. Visit his website at http://www.quality9.com.

Mr. Wakshull can be contacted at (951) 252-4929 or by e-mail to MikeW@quality9.com.