Tony Lehman | The Dispute Resolver | November 30, 2015
In May, Jim Cohen of Thornton Tomasetti and Dan Valentine of Simpson Gumpertz & Heger Inc. (along with Dispute Resolver editor Tony Lehman) introduced a series of articles regarding Expert Witnesses and False Representation of Credentials. As that original article mentioned, one way that experts may misrepresent their experience and credentials is through the use of a curriculum vitae(CV) that makes it appear that the expert is more experienced than they really are.
The ways in which a CV can hide an expert’s inexperience are myriad. As a result, this article regarding expert resumes being bolstered in artificial or potentially misleading ways will be broken down into two installments. The first section is being posted today, and the second half of the article will follow next week. With that introduction, here is the first half of “Paper Experts.”
Paper Experts: How a CV Can Create Apparent Expertise
Part 1 of this series discussed the real problem of false representation by experts and the need for attorneys to evaluate their potential experts carefully. Failure to do so may result in disqualification of the expert and exclusion of his or her testimony under Federal Rule of Evidence 702. Although it is important to know that there is a problem, the key is knowing how to avoid it in the first place. This installment discusses how credentials may be used, either intentionally or not, to create the appearance of having expertise that the expert actually does not have. Knowing what to look for and what questions to ask will help to avoid later embarrassment or worse.
Initial Due Diligence
Due diligence should always start by confirming the basic information the expert provides. As an initial step, this includes verifying the current employer and title, educational degrees, and active professional licenses. For example, most states provide free databases for licensed professionals that should be searched immediately to verify claimed licenses or authorizations. If reasonably ascertainable, memberships in organizations and related committees should also be checked. This can often be accomplished through a simple telephone inquiry. Of course, this is only the starting point for properly assessing a potential expert. Stopping with this step is very risky for both attorney and client alike.
At the outset of most expert retainers is a review of the expert’s curriculum vitae or CV. A CV will include education, professional licenses, employment history, and project experience. The potential expert may include published papers, professional research, membership in professional organizations and committee involvement, and other industry accepted methods of recognition, such as awards, as further evidence of their expertise. Additionally, the testimonial experience of the potential expert is also used to gauge expertise and ability to testify.
Each of these items will be discussed briefly.
Education
The basic evidence used to establish educational qualifications is the issuance of a degree, typically some combination of a Bachelor’s degree, a Master’s degree, and a Doctorate degree. Occasionally Certificates of Completion or Training Certificates may also be provided. Even though having a pertinent degree would seem basic, it can still be the subject of resume padding or worse.
First, the date of the degree is often not included on a CV. Discrepancies between date of issue and times of employment may be a flag. For example, if the degree postdates experience, then the prior experience listed might not be relevant as part of the “knowledge, skills and training” requirement of Fed. R. Evid. 702.
Similarly, the school issuing the degree may not be listed. Not all colleges are created equally, with some being accredited and others not, and even within the group of legitimate institutions there is wide range of quality of the education provided. It is not unknown for degrees to be available for purchase from suspect organizations. One of many examples can be found in a New York Times article on May 17, 2015, which identified a Pakistani software company selling fake academic degrees using fabricated news reports, actors pretending to be professors, and even photographs of fictitious university campuses. The consequences of such alleged degrees can be catastrophic, as evidenced by the following excerpt from the article:
In Britain, the police had to re-examine 700 cases that Mr. Morrison, the falsely credentialed police criminologist [and graduate of the fake college] had worked on. “It looked easier than going to a real university,” Mr. Morrison said during his 2007 trial.
Though it does not negate the damage done, the CEO of the software company, along with four other executives, were arrested by Pakistani investigators and charged with fraud, forgery, illegal electronic money transfers, money laundering, and validating Pakistan’s electronic crimes act.
Certificates of Completion may reflect a partial completion of a degree program, more indicative of a failure to complete than an accomplishment of merit. Training Certificates may reflect attendance at sales events rather than training. On-line course and training certificates may reflect simple payment of a fee or completion of a simple exam for which no actual study was required.
Even if the individual’s educational credentials are from a true, accredited institution, the subject matter of the degree is typically not provided on many CVs. While B.Sc., M.Sc., or Ph.D. degrees may be relevant to structural engineering, they could be equally relevant to plant sciences. The relevancy of the field of study to the claimed expertise should be confirmed in addition to the degree itself.
This last point, the relevancy of the stated experience or activity to the expertise sought, is one which should be carried through the entire evaluation of the expert.
Professional Licenses
Today, it is often possible to confirm a professional license is current and active via the internet. For example, in New Jersey, the My New Jersey License website provides instant confirmation of a license based upon drop-down menus which include Profession, License Type, and License Number. However, what confirmation of a particular license may not provide is information on any discontinuity of the license or violations, complaints, or citations which may have been resolved. Even if the information provided is limited, it is vital to check the status and history of any licenses that the expert claims to hold. Learning this from the opposing attorney during trial could be damaging to your expert’s credibility and, at the very least, disconcerting.
Employment History
Some CVs list employment history, with the month/year of employment provided, while others do not. Most will contain the title held by the expert during employment. The reasons for a change in employment are rarely, if ever, provided and can create an opportunity for abuse.
Gaps in employment may mask weaknesses in experience. Reasons for changing employment may be simple individual advancement or a better job offer. However, it may also indicate poor performance, or violations of employment conditions.
Job titles often change and can sometimes mask the individual’s true level of responsibility. What may be an Associate Principal at one company may be a Senior Vice President at another. An individual who commences work at a company as an intern may finish as a Senior Project Manager or Vice President. During the intervening period there may be many changes to title and job responsibilities. It may be that some companies use impressive titles to retain employees, or obtain clients, without the employee having first obtained the experience implied by the title and/or without the implied job responsibilities. Again, surprises are rarely a positive event once the expert has been engaged.
Project Experience
Knowledge, skill, experience, and training following attainment of primary and secondary education are typically obtained through job experience. Job experience may be shown on the CV through either a project list or summary description of experience. Sometimes both are provided.
The summary description should be assumed to have been written to reflect the specific focus of a possible assignment by an expert. The same should be true of a list of projects which are likely to have been selected to reflect specifically related experience.
For many individuals, having been associated with any project may be sufficient to list the project on their CV. However, unless the duration, role and duties are also provided, there is little basis for assuming that that expertise may have been developed in any individual project. For example,