May 26, 2015

Insurance Expert Witness Reports

What areas may insurance expert witnesses consult on? They may write reports and testify on the insurance industry, commercial insurance, insurance carriers, insurance policies, and more. In Experts - They May Know What To Do and How To Do It - But Do They Know How To Deliver? , Houston attorney Nyanza Moore writes:

In a time where expert reports are more the norm than the exception, it’s important to remember that a great expert report is only as good as the expert delivering it. Delivery here is being used in the sense of delivering a timely, well written report and verbally delivering a succinct explanation of the methodology used to reach the conclusions at a deposition.

Of course, every expert isn't expected to be Johnny Cochran - with the flow of speech that leaves the trier of fact mesmerized. It is well known that public speaking ranks high on the top ten fears most people have. Preparing an expert for a deposition should be used getting them comfortable speaking about the methodologies so they avoid giving rambling answers that draw a Daubert motion to exclude the opinion. For the engineers, meteorologists, public adjusters, CPAs, and economists helping policyholders prove their claims, here is a refresher on what the attorneys, judges and juries are looking for when they read and hear your opinions:

A Daubert motion is a specific type of motion in limine. It is raised before or during trial, to exclude the presentation of unqualified evidence to the jury. Daubert motions are used to exclude the testimony of an expert witness that does not possess the requisite level of expertise or uses questionable methods to obtain or evaluate data.

A Daubert motion is the outcome of a 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals.1 Rules 702 and 703 of the Federal Rules of Evidence govern the admission of scientific evidence in federal court. The rules allow expert witnesses greater leniency in their testimony because it is presumed that the expert will have a reliable basis in knowledge and expertise in his field. The Court in Daubert required that trial judges act as a “gatekeeper” and determine the scientific validity of scientific evidence before admitting it. The guidelines in the decision have been expanded to include technical and specialized knowledge testimony.
The testimony of an expert witness must pass two tests for a judge to accept:

1) Reliability:
• Empirical testing: the theory or technique must be falsifiable, refutable, and testable.; subjected to peer review and publication.
• • Known or potential error rate.
• Whether there are standards controlling the technique’s operations.
• Expert’s qualifications.
• Technique and its results be described with plain meaning.

2) Relevancy:

The relevancy of an expert's testimony is subject to the type of question. For example, a meteorologist may be an expert witness to tell the jury there was a hurricane on the night of the alleged date of loss. However, the expert witness cannot be used to tell the jury that the insurance company adjuster is a lunatic because there was obviously a hurricane that hit the property in question. The judge must act as a gatekeeper to rule out bad testimony.

After the decision in Daubert, Rule 702 was amended to include the additional provisions which state that a witness may only testify if:
• the testimony is based upon sufficient facts or data;
• the testimony is the product of reliable principles and methods; and
• the witness has applied the principles and methods reliably to the facts of the case.
Once certain evidence is excluded by a Daubert motion because it fails to meet the standard, it is unlikely that it will be used again in another trial. Even though a trial court’s ruling on a Daubert motion is not binding on other courts, if some evidence was found lacking, other judges may be persuaded by the trial court reasoning.

1 Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993).

Ms. Moore’s areas of practice are insurance and commercial litigation. She may be reached at

May 24, 2015

Forensic Expert Witness Association Webinar

On June 4, 2015, the Forensic Expert Witness Association (FEWA) will present the webinar Lawyers and Experts: Beware of Daubert, Robinson, and Kuhmo in 2015.

The presentation will be an in-depth review of motions to strike. Topics that will be covered include the following:

Motion to strike actual filing
Expert's affidavit in response to motion to strike
Examples of over 25 actual motions to strike and subsequent rulings
2015 update on Daubert, Robinson and Kuhmo

The presenter is Dallas FEWA member EJ Janik, CPA, CFE, CFF. Mr. Janik is President of Janik Forensics, PC, a certified public accounting and consulting firm. Mr. Janik's 33 years of professional experience includes but is not limited to: financial audits, compilations and reviews, consulting / commercial litigation / antitrust matters, engineering and construction matters, real estate, and bankruptcy / business reorganizations for Fortune 500 companies, public, and private entities in a variety of industries. He holds a Master of Science in Accounting from Louisiana State University and a Bachelor of Commerce from Rice University.

The webinar will be held at 1pm PDT/4 pm EDT. More information here.

Founded in 1994 in Orange County, California, the Forensic Expert Witness Association (FEWA) is dedicated to the professional development, ethics, and promotion of forensic consultants in all fields of discipline. FEWA brings together a diverse group of professionals sharing common goals related to forensics. The association offers to its members the opportunity to enhance their knowledge and techniques required to perform in an effective manner.

Over the last twenty years, FEWA membership has grown and expanded with the following chapters. FEWA Chapters provide great value to members as they provide continuing education offerings and networking with fellow forensic consultants and attorneys at local meetings. FEWA currently has nine active chapters that are governed by a local chapter Board of Directors as subsidiaries of the FEWA National Office and National Board of Directors.

May 21, 2015

Nursing Expert Witnesses & Standard Of Care

In Nursing Standard of Care Guidelines: Why a blank or incomplete medical record suggests conduct that falls below the standard of care, attorney Kristin Miller answers the question "Why does a blank or incomplete medical record indicate a likelihood of nursing conduct that falls below the standard of care?"

“Nurses are required to routinely conduct assessments and reassessments, and they are required to document all of their findings in the patient’s medical record. A blank or sparsely filled in medical record at a time when the patient is receiving intensive care is a strong indicator of below standard conduct by the nursing staff.” Says Gayle Nash with Nash Legal Nurse Consulting, and a Chief Nursing Officer with twenty-seven years of executive nursing leadership experience.

A myriad of patient care considerations go into each patient assessment and
reassessment. Nash preaches that a skilled nurse performing their work pursuant to
standard of care will practice due diligence in their charting practices thoroughly
performing as well as documenting each assessment and reassessment. The medical
record, after all, is the patient care fingerprint indicating both the patient’s health status
as well as how the nurses are performing and completing their patient rounds. A
sparsely complete medical record should be investigated as a possible indicator of
below standard nursing conduct.

“A properly charted medical record pursuant to standard of care will be complete,”
explains Nash. “We train our newly registered nurses to practice under the principle that
any information left off the medical record will be interpreted as work not done.”
Complete charting on a head to toe assessment requires documenting a substantial
amount of information. For example, if a patient presents to the hospital with pressure
ulcers, a nurse has a duty to conduct a thorough assessment. Documenting on the
medical record that a pressure ulcer exists is not enough to comport with standards of
care. The nurse attending that patient must also document the ulcer location, size,
degree of severity or stage, any healing of the ulcer, odor or dying tissue, any drainage,
presence of undermining tunneling tracts, color, and temperature. The nurse is also
required to conduct timely reassessments to monitor changes of that ulcer and the
patient’s overall health condition while under that nurse’s care.

Q: Where the medical record is blank or incomplete, why should leadership and clinical
experience be a hiring factor in the nurse expert’s qualifications?

Identifying where a medical record is missing critical patient information that points to
below standard conduct requires hiring the right expert witness.

Nash urges Attorneys in need of an expert report on a sparsely complete medical
record to consider hiring experts with leadership experience. Nurses in a management
role are more likely to identify where the incomplete record points to issues in the
hospital’s chain of command.

“Hospitals operate under a series of complex command chains. Nursing Directors are
held accountable for all work not completed, and as such, make routine reviews of
nurse charting and notes documented. Nursing Directors are also expected to know the
standard of care guidelines set by accrediting organizations such as the Centers for
Medicaid and Medicare and The Joint Commission." A Nursing Director will, therefore,
have more experience identifying where the medical record is missing critical patient

Lastly, a nursing expert witness hired to review medical records will be expected to know where the medical record indicates below standard conduct, missing assessments or otherwise, for all nursing care provided. Because much of the charting and documenting requirements are learned on the job, Nash recommends hiring experts with actual clinical experience in the health care department most applicable to the case.

Kristin Miller, JD

May 18, 2015

Business Expert Witness On Negative Interest Rates Part 1

In The New Frontier of Negative Rates and Banking, business expert witness Douglas E. Johnston writes:

While financial market observers in the US remain focused on the timing and magnitude of the Fed raising target interest rates over the months ahead, European bond markets have begun to experience just the opposite – the never-before-seen phenomenon of actual negative bond market interest rates. Since the Global Crisis of 2008, which saw both the Fed and foreign central bankers seeking both to calm markets and to encourage growth by reducing rates to the ‘zero bound,’ interest rates for bellwether German bonds and across Europe in late 2014 crossed into negative territory, and for the first time in world history. As noted recently by iconic market veteran Art Cashin, now Director of NYSE Floor Operations for UBS Financial Services, over 30% (approximately $2.2 Trillion) of the highest-rated sovereign debt in Europe now bears a stated negative interest rate. Over 70% of all German government bonds now carry negative stated rates, and there are indications these conditions may become even more wide-ranging and spill over to US markets. After more than six years of various central bank ‘Quantitative Easing’ (QE) stimulus programs including scheduled open-market bond purchases, negative interest rates now clearly constitute the ‘new frontier’ of central bank monetary policy. Numerous other policy implications regarding negative rates are still unfolding in an uncharted scenario, which even the founder of modern monetary theory, John Maynard Keynes, did not foresee.

In an environment of ultra-low and negative rates, non-interest-bearing asset classes including commodities should become more attractive. Therefore, one major historical disincentive to buying oil and gold, for example, may have been removed. Stated differently, increasingly negative interest rates should be positive for commodities, because the imbedded math suggests that an investor is effectively paid to hold them, as compared to holding negative-rate financial instruments.

Negative Rate Policies Have Major Implications for Commercial Banks

On the surface, negative interest rates represent a confusing and counter-intuitive ‘new math’ which can be difficult to grasp. Stated plainly, at least $2.2 Trillion of European bond investors are now paying for the guaranteed right actually to lose principal, and to receive back less than they have invested. This highly unusual scene seems to tell us that at least some sophisticated institutions are perhaps embracing the loss of some principal by investing with various sovereign governments, rather than face the loss of even more principal by making other types of investments. Viewed from a slightly different but equally important commercial bank perspective, negative rate monetary policy also seems very plainly to encourage far more aggressive commercial bank lending activity. Negative rates may serve to penalize banks which do not lend, or at least which do not lend to businesses in sufficient volumes to promote desired growth.

Bank lending to businesses has long been regarded as the grease of the wheels of commerce and growth since the days of Adam Smith. Unfortunately, for today’s central bank growth advocates, many commercial banks have been more reluctant to lend into the slowing-growth economies of the US and Europe, where lending activity has been essentially flat over much of the past five years, as compared to the higher-growth economies of the BRICS and other countries. Risk-averse banks have, in a way, preferred to lend their surplus funds to low-risk governments rather than to higher-risk businesses, yet now they may be penalized and urged to shift out of the lower-risk status quo. By adding a mathematical penalty to banks in the form of negative interest rates, the new paradigm thus has added implications which appear to run directly opposite to the risk-averse Basel I-III bank capitalization and risk guidelines which were introduced in 1985. The Basel Accords now carry the effective weight of core bank regulatory guidelines around the world. They are already well known and widely followed by and among the FDIC and metropolitan banks, as well as by virtually all community banks across the US. Changing the risk focus of central bank lending guidelines which have been built steadily and by global consensus over the past thirty years is certainly no small thing to consider.

Doug Johnston (through Five Management, LLC) is an expert witness in banking/lending and an investigative business consultant specializing in Commercial Banking & Lending, Private Equity, and International Banking.

May 11, 2015

Slip, Trip & Fall CEU Program

Slip, trip and fall expert witnesses may testify and provide reports regarding railings, barriers, slip and fall accidents, slippery conditions, stairs, and more. Architect and expert witness Randy Atlas is presenting the CEU program Slips, Trips, and Falls: The Architect's Role in Mayhem on May 20th in Pembroke, Pines FL. Mr. Atlas is the President/Owner of Atlas Safety & Security Design. Sponsored by AIA Fort Lauderdale, the program description is as follows:

Have you ever been brought into a lawsuit as a result of a slip and fall at one of the building's you designed? Randy Atlas, President and Owner of Atlas Safety & Security Design, will show you how to reduce the opportunity for mishaps in your designs in such areas as level changes and miscommunications in pedestrian path of travel. He will also go over the consequences of careless design with case studies of projects where mistakes led to litigation. More information here.

May 7, 2015

Becoming a Better Digital Forensics Witness Part 3

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness

Avoid the Absolute
Lawyers like absolute responses like “never,” “impossible” and “always” because they’re easy targets for attacking a witness’ credibility—even when those attacks are pretty silly.

I was once asked to demonstrate cross-examination at a computer forensics conference. The witness was an expert of renown and an unquestionably capable examiner. He brought his laptop running the forensic software he’d written (like I said, a serious expert). I sparred with the witness long enough to make him defensive (and a bit cocky), then gave him a thumb drive holding two simple text files. I asked him to calculate an MD5 hash for each. He glanced at the contents, saw that each contained my name and address, and quickly calculated identical MD5 hashes for the two. I asked him if, despite their different file names, the contents of the two files were identical. He said they were. I asked him if he was certain and tried to toss a little mud on his methodology to get him puffed up. The expert testified that he was certain the files were identical because they had matching hash values. I then had him explain how hashing was a technology central to his evidence authentication, deduplication, chain of custody, etc. I concluded by asking if he was as certain about the two files being identical as he was about the other opinions he’d expressed. He said he was, adding that it was impossible for the two to be different if they have matching hash values.

The hook was set.

I then asked the expert to pull the contents of the “identical” files into a hex editor, and I gave him the offset addresses of six places in the file where there were differences between them. He was floored to find the differences were real. I then wrote the names of the files on the board: 5h1t and 5h1n0la, and I ended my cross-examination noting that he apparently wasn’t expert enough to tell one from the other.[2]

All I’d done to set him up was append my name and address to tiny files engineered by Chinese researchers to demonstrate the feasibility of a MD5 hash collision. The testifying expert forgot the difference between a collision being computationally infeasible and impossible. MD5 hash collisions are real, but exceedingly rare. Never having seen a hash collision and knowing the gargantuan odds against ever seeing one, the expert was maneuvered by hubris into making a categorical statement he couldn’t defend and allowing his credibility to be tied to one point.

Expect the Unexpected
As a trial lawyer, my credo was that even adverse witnesses could do my case some good. I began each cross-examination by getting adverse experts to stress the strengths of my case, sometimes to the point of their conceding things beyond their expertise. Medical doctors would corroborate liability facts, and engineering experts would concede my client was permanently disabled. I could do this because opposing counsel were loath to challenge their own witnesses’ expertise, and the witnesses weren’t prepped to expect the unexpected.

Even without pushing witnesses outside their expertise, I knew every expert could concede something about my case even if it were, “You would agree that my client’s computer was powered by electricity, correct?” If they fought me on everything, it underscored their bias and hurt their credibility.

The lesson: The witnesses making concessions were too sure of themselves to say, “I don’t know,” and the combative witnesses were too invested in the outcome to concede the obvious.

Know what’s out-of-bounds
In most jury trials, the Court determines that there are matters that may not be disclosed to the jury. These may be a creature of statute, of common law or the consequence of a motion to exclude called a Motion in Limine. You need to know what’s out-of-bounds, and sometimes, counsel will forget to tell you. Always ask about excluded matters before you take the stand! Remember that the fact that certain evidence has been excluded may itself be something you can’t mention on the stand.

Occasionally, counsel for the party who sought to exclude the evidence will ask a question that necessitates mention of the excluded matter. This is called “opening the door;” but, don’t be too quick to enter. Let the court and the attorneys see that you are hesitant to respond so as to allow the lawyers an opportunity to seek guidance from the Court. You must carefully balance the Court’s intention to exclude the evidence against the obligation to answer a question that necessitates disclosure. Misjudgment can prompt a mistrial. Accordingly, do all you reasonably can to afford the Court and counsel an opportunity to resolve this before disclosing excluded matter.

Craig Ball
Attorney and Forensic Technologist
Certified Computer Forensic Examiner

May 1, 2015

The Value Of Economic Expert Witnesses

In Getting The Full Value Of Economic Experts In IP Litigation: A Qualified Expert Is Key, attorney Devon Zastrow Newman of Schwabe, Williamson & Wyatt, P.C., writes:

A plaintiff’s claims in intellectual property litigation may take several forms, including assertion of claims of infringement of the IP right or loss of the plaintiff’s right to the IP through unlawful misappropriation (e.g., trade secret theft). To prevail, the plaintiff must establish three elements: the defendant’s breach of the IP right belonging to the plaintiff; the defendant’s breach damaged the plaintiff; and the measure of damages the plaintiff accrued as a direct cause of the defendant’s breach. An economic expert may be the key to establishing the third element.

When is an economic expert needed?

Expert witness testimony is necessary when a party must present evidence outside a juror’s common knowledge, which applies to nearly all (IP) cases. A technical expert explains the technology and whether it is infringed by the defendant. The plaintiff may use an economic expert to explain how economic damages occurred. The defendant’s economic expert, if any, will present an alternative view of the damages.

Most IP cases are litigated in federal court; thus, the expert’s testimony must be admissible under Federal Rules of Evidence 702 and 703. These rules require that the expert be qualified to testify about the subject matter and perform the analysis using qualified information he or she has personally reviewed. The expert must base his or her opinion on facts or data that are the type of information experts in the field would rely on to form an opinion. A party may challenge an expert’s testimony through a pre-trial motion if it fails to abide by FRE Rules 702 or 703. Challenges typically come in pre-trial motions to limit or preclude the testimony. Finally, the expert’s opinions must be relevant to the issues and help the jurors understand them.

Read more here.

Devon Zastrow Newman leads the Intellectual Property Litigation Group at Schwabe, Williamson & Wyatt, P.C. She focuses her practice on intellectual property and complex litigation, and has extensive experience representing patent and trademark owners in infringement actions.

April 28, 2015

Computer Security Expert Witness On Cyberstalking Part 1(b)

In Cyberbullying, Trolling, and Cyberstalking: the Dark Side of Free Speech (part 1b), computer security expert witness Steve Burgess answers the question What is Free Speech?

Also not protected is harassment, the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. This could include discrimination based on race, gender, or sexual preference. It could include particularly aggressive bill collecting, or some forms of blackmail

Threatening to inflict great bodily harm (“I will stab you in the eyeball,” would qualify. “I will smack you in the kisser,” would not) or death would be illegal if the person has an apparent ability to carry out the action. Idle threats would not likely be found to be illegal.

False advertising – knowingly communicating untruthful or misleading statements about a product or service is not protected. Oddly (and somewhat maddeningly), political false advertising is protected.

Some symbolic actions are unprotected if they are otherwise illegal. I might feel strongly about an issue, but tagging a building with my message would not be protected. Neither would the act of burning a cross on private property, or littering, even if it was a political statement.

Plagiarism of copyrighted material is not protected (although it may be under certain circumstances, such as if it is satire, or is partially quoted but with attribution).

So we can see that we have a broad right to expression, as long as such speech does not run afoul of certain other laws restricting particular classes of activity. And for the most part, we are free to express ourselves anonymously.

Now we have entered the Internet Age and we find that the Web can provide easy anonymity. We also find that very many feel emboldened to engage anonymously in vile, despicable and dangerous statements, without much fear of retribution for the pain and damage that their words may cause others.

When people are speaking face-to-face, it is easy to determine who it is whose speech shades (or possibly charges) over the line from protected expression into unprotected or even illegal forms of behavior. But Internet anonymity protects the offender from being identified, from witnesses being able to testify against the offender. In some cases, the speaker may not be identifiable; in others the speaker may be actually be impersonating someone else. And when anonymous, there’s not only less or little chance of being found out, there’s also less or little chance of social norms checking such behavior through public ostracism or social shame – both mechanisms that commonly keep otherwise objectionable behavior in check.

Perhaps this is why Internet trolling, cyberstalking and cyberbullying are becoming more and more widespread.

In Part 2 of this series, we will explore what these terms mean, show examples of their use, and discuss the damage their practice does.

Burgess Forensics offers computer forensic & electronic discovery and expert witness testimony since 1985.

April 26, 2015

Legal Ethics Considerations for Lawyers' Use of Cloud Computing Services

In Legal Ethics Considerations for Lawyers' Use of Cloud Computing Services, Internet For Lawyer’s Mark Rosch writes:

We often get questions about the security of "cloud computing" services like Google Apps and whether that security is tight enough for lawyers to use them.

Google Apps, for example, meets the security standards put in place for the online storage of government agencies' information set out in the Federal Information Security Management Act of 2000 (FISMA 44 U.S.C. § 3541, et seq.).

Cloud computing and "Software as a Service" (SaaS) are two terms used to describe similar services. They allow you to access software, or store files, on computers that are not at your physical location or even in your physical control. defines cloud computing as:
Internet-based computing in which large groups of remote servers are networked so as to allow sharing of data-processing tasks, centralized data storage, and online access to computer services or resources.

Wikipedia defines SaaS as:
"Software as a service (SaaS, typically pronounced [sæs]), sometimes referred to as 'on-demand software,' is a software delivery model in which software and its associated data are hosted centrally (typically in the (Internet) cloud) and are typically accessed by users using a thin client, normally using a web browser over the Internet."
Gmail and Flickr are examples of cloud computing or SaaS products because they give you access to e-mail software and message storage, and photo storage (respectively) on computers at a remote location.

In August 2012, the ABA House of Delegates adopted changes to the Model Rules of Professional Conduct dealing with the question of whether and how lawyers might deal with "confidentiality issues arising from technology." The changes were suggested by the ABA Commission on Ethics 20/20 and were, "designed to give lawyers more guidance regarding their confidentiality- related obligations when using technology."

So far, only a few State Bar Associations have issues formal ethics opinions on the questions however, they include (in reverse chronological order):
• Connecticut Bar Association Professional Ethics Committee Informal Opinion 2013-07
• Ohio State Bar Association Informal Advisory Opinion 2013-03
• Virginia State Bar Legal Ethics Opinion 1872
• The Florida Bar Opinion 12-03
• Maine Board of Bar Overseers Professional Ethics Commission Opinion 207
• State Bar of California Standing Committee on Professional Responsibility and Conduct: Formal Opinion 2012-184

Most of the opinions already mentioned in this article point to a lawyer's duty to exercise "reasonable steps" to insure the confidentiality of their client's information. Many of them also refer back to Arizona Opinion 05-04 which states that lawyers should:

• "take competent and reasonable steps to assure that the client’s confidences are not disclosed to third parties through theft or inadvertence. In addition, an attorney or law firm is obligated to take reasonable and competent steps to assure that the client's electronic information is not lost or destroyed. In order to do that, an attorney must be competent to evaluate the nature of the potential threat to client electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end. An attorney who lacks or cannot reasonably obtain that competence is ethically required to retain an expert consultant who does have such competence."

• The reality of computer security requires machines connected to the Internet to be maintained and patched on a regular basis. It’s important for lawyers to know what security measures are practiced by whatever cloud service provider they are considering, as well as where and how often vendors back-up the information stored with their services, among other concerns. Regardless of whether lawyers are storing files "in the cloud" or on their office’s local network, they must make a “reasonable effort” to keep that information secure to insure that those computers are as protected as they can be.
• Originally posted 10/30/2011. Last updated 3/8/15.

As Vice President of Marketing for Internet For Lawyers (IFL), Mark Rosch is the developer and manager of the Internet For Lawyers web site. He is the Editor of IFL’s newsletter, and writes and speaks about legal technology for firms and also on how to use the Internet for research and for marketing. The Internet For Lawyers Internet Investigative Research Update blog keeps readers up to date with the latest free and low-cost investigative and background research resources freely available on the Internet. The blog also covers search engine search tips with a focus on Google and its features, functions and productivity tools.

April 18, 2015

Gasoline Explosion Expert Witnesses

Gasoline explosion expert witnesses may report and testify on fuel explosions, flammable materials, and tanker truck explosions. On March 26 in Huimanguillo, in the southeastern Mexican state of Tabasco, villagers tried to take gasoline from a tanker truck that had overturned late at night. Unfortunately, residents broke through a police perimeter and chased off firefighters in an attempt to take fuel. Eighteen people were killed in the explosion. Due to the flammability of the cargo, the possibility of survivors in the vicinity of a tanker truck accident is low. writes:

Tanker trucks are powerful vehicles that haul liquid or semi-liquid cargo in long metal containers. Examples of liquid cargo can include fuel, food products and chemicals. The cargo can often be dangerous. The liquids can be flammable, corrosive, poisonous or even explosive. Handling such cargo requires extensive safety training. Driving trucks with a heavy liquid load also requires a different touch than hauling dry goods like lumber or furniture.

April 16, 2015

Becoming a Better Digital Forensics Witness Part 2

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness

Don’t Be Jekyll and Hyde
We communicate as much non-verbally as verbally, and it’s fascinating to watch how a witness’ body language and demeanor transform from direct to cross-examination. On direct, witnesses are forthcoming and helpful–their engagement and desire to please manifested in their words and physiognomy. On cross, they lean back, glowering, arms crossed, shifting in their seats, quarrelsome and evasive.

It’s hard not to appear defensive when you’re on the defensive, but stay attuned to your demeanor and body language, and don’t change demeanor between examiners—at least not without a whole lot of provocation.

Open up your posture, unclench your fists and wipe that peevish look off your face. Endeavor not to alter the pace or tone of your answers. Patience is a virtue, so don’t start jabbering just to fill an awkward silence. Be courteous and helpful. Yes, helpful. Of course, it’s not your role to assist the other side; but, being respectful and working cooperatively to move things along helps your side most. Some lawyers will work hard to get a rise out of you. Don’t be drawn in. When you show anger, you squander credibility.
There may be times when anger or umbrage is unavoidable, but be slow to burn. Ideally, the jury or the judge should be awed by your restraint and rooting for you to push back long before you do.

Stay above the Fray
Nailing the bad guy isn’t the point—not for you. You are the digital translator, not the prosecutor. The evidence speaks through you, and justice demands you not omit or embellish. As an expert witness, you are not an advocate for either side. That’s the lawyers’ role. You are an advocate for your own findings and opinions. You can and should vigorously support and defend the skill behind and integrity of your forensic process, your reporting and the expert opinions you’ve drawn. Winning the case is not your objective. The only “win” for you is that the judge and jury listened to you, understood you and believed you.

Remember Who Matters
Court proceedings aren’t about the lawyers. The lawyer for your side is already persuaded, and the other side’s lawyer isn’t going to come around. They don’t matter.
Court proceedings aren’t about you. Yes, you’re a technical wizard and you’ve worked very hard to uncover compelling evidence. But you don’t matter—check your ego at the door.
The only people in the courtroom who matter are the judge and jury. So, speak to them, look at them and help them understand. Of course, you’ll pay attention to the questioner while a question is asked; but orient yourself so that the jury can always see and hear you well, and endeavor to make eye contact with the jurors when giving longer answers. Be alert to cues from counsel, like questions that begin, “Please tell the jury….” That’s how lawyers remind you that you’re ignoring the most important people in the courtroom.

Couch your testimony in terms and analogies that judges and jurors understand. Never assume they know what you or the lawyers know about the evidence or that they come to court with any pre-existing technical expertise. Engage the jury with references to common experiences and accessible analogies like, “We’ve all seen the hard drive activity light on our computers flash when we aren’t doing anything. That may be an instance where the computer is shifting information from RAM to its memory swap file on the hard drive, like leaving ourselves a note.”

Don’t Quibble
Judges and juries hate witnesses incapable of saying “yes” or “no.” A skilled cross examiner frames questions that sound like they can be answered simply, but are calculated to elicit quibbling from the witness. A skilled witness looks for opportunities to plainly respond “yes” or “no,” or something close:
“Yes, as a rule,”
“No, for the most part.”
“There are exceptions, but that’s true.”
“Not in my experience.”
Unless crucial to the case, let the lawyer chase the exceptions.

Craig Ball
Attorney and Forensic Technologist
Certified Computer Forensic Examiner

April 12, 2015

Undue Influence Expert Witness On Making Bequests Part 2

In Undue Influence in Making Bequests: A Forensic Psychiatrist Examines the Evidence, undue influence expert witness Stephen M. Raffle, M.D., writes:

One of the inferences for the exertion of “undue” influence is if a close or isolative relationship existed between the testator and the proponent of the changed will or trust at the time changes are entered into. When the beneficiary/caregiver isolates the testator from his/her other natural heirs, there is an index of suspicion to the psychiatrist for undue influence.

Another circumstantial fact may be a financial relationship between the “favored” beneficiary and the testator. For example, the favored beneficiary has check-writing authority and is otherwise being empowered to take over the financial affairs of the testator. Yet other example may be the receipt of a joint tenancy interest in real property even though the property was paid for entirely by the testator, or being employed by the testator’s business (or promoted if already an employee) up to and including being made an officer of the company.

Participation in the procurement, preparation, or execution of the actual testamentary document is not an essential element of undue influence. The “favored” beneficiary need not be present at the time of the execution of a disputed testamentary document to participate in the creation or execution of the document. The participation may be proven inference. The forensic psychiatrist examines such participation when assessing undue influence. When the beneficiary personally communicates with the attorney who is drawing up the testamentary instruction, this is inferential evidence for the forensic psychiatrist to consider. Other circumstances the psychiatrist considers may include the allegedly “influencing” beneficiary meeting alone with the attorney who subsequently prepares a trust or will for the testator, and/or telling the preparer what the modifications will be. Other medical evidence is when the attorney who drafts the document is also retained by the beneficiary of the will or trust; there is a suggestion of a conflict. The psychiatrist would want to know the nature of the prior relationship with the attorney, and how the testator came to choose and rely on that attorney.

Undue profit as indicia of undue influence may be considered. In Estate of Gelonese, a testamentary disposition that does not treat a descendant’s children equally is “unnatural,” “demonstrating undue benefit to one child over the other.” The question whether the proponent unduly profited by testamentary document is resolved by the terms of the testamentary document itself.

As a psychiatric evaluator, I look at the relative complexity of the instrument which is drawn and assess the testator’s mental capacity to understand the document, as reflected by either direct or indirect evidence, e.g., deposition testimony, films/videos, medical records, and testimony from disinterested parties When a testator “trusts” a favored beneficiary to tell the testator what the will or trust means, then in my opinion there is substantial room for misrepresentation and distortion. The disproportionate trust in a beneficiary when there is an exclusion of other children of the beneficiary from the testamentary document raises the medical questions of independent action versus deception and self-dealing.

Further comments on this issue are addressed in my discussion of testamentary capacity (which may or may not be linked to undue influence).

Stephen M. Raffle, M.D., Board Certified Forensic Psychiatrist focusing on emotional distress, PTSD, chronic pain, undue influence, testamentary capacity and employment litigation (among others), with over 40 years' experience offering expert opinion in over 5000 cases, 700+ depositions, and testifying in 150+ trials in Federal, State, Administrative and Military jurisdictions