October 30, 2014

Contract Manufacturing Expert Witness On Contract Planning Risks

In Frequent Contract Planning Risks, contract manufacturing expert witness Robert G. Freid writes on the importance of the contract prior to the start of work.

- Customers have their greatest negotiating leverage before start of work. Once work starts it is often difficult to reverse course because of time constraints and resources.
- About a third of my outsourcing consulting services involves work as a consultant in legal disputes between customers and suppliers, and millions of dollars in damage claims. In most cases, no contract existed between the parties – at best, only an MOU. I've recently been an expert witness in such a matter with 10,000 pages of depositions and 1,000 exhibits from both sides. Very expensive.
- Contracts can take only a short time to complete. Time is reduced if the customer has a draft contract proposal ready when the supplier is selected, and if the draft proposal T&C's are within the range of industry practices.

Do not underestimate the project requirements
- Attitudes such as "what we need is not rocket science" or "the service provider is the expert" too often results in weak contracts and eventual unsatisfactory performance.
- Even major corporations make this mistake. For example, Boeing Aircraft said in a news article in the Seattle Times a couple years ago that the 787 program delay was due largely to their over-estimating key off-shore supplier capabilities.
- Also, be sure that your project requirements of the supplier comprehend the sometimes extensive requirements of your key customers.

Avoid using the bidder / supplier's templates
- Best practice contracts for the customer will in many cases, be almost entirely different than the bidder "standard" contract template.
- Bidder templates are often highly favorable to the service provider. Terms important to the customer either weak or missing entirely - for example: influence in selecting supplier's project manager (often a key factor for project success), contract termination restrictions on the bidder, liability limitations for the customer, comprehensive and relevant performance measures.

Plan for RFP language to be incorporated into the contract
- Be sure to consider how supplier responses will be incorporated into the contract. For example format of costing detail, expected PO lead-times, warranty, prices for potential future services – important if a multi-year contract.


Read more: Robert G. Freid.

October 26, 2014

Cross-examining the Expert Witness by Dean Brett Part 3

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes on what he describes as "one of the trial attorney's most difficult tasks."

In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.

In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.

General preparation for cross-examination of a defense expert involves four stages:

1) Learn the expert’s subject;

2) Scout the expert;

3) Use your own expert;

4) Establish realistic goals.

Learn the expert’s subject

With help, time and perseverance, you can learn all you need to know about the usually very narrow part of the subject involved as it applies to your client’s situation.

Find a teacher, perhaps a professor at a local college, to conduct a one-on-one directed reading course. For about one-fourth your hourly rate he will review the literature in the area, recommend several general articles to familiarize you with the field, select articles to familiarize you with the field, select specific materials focused on the narrow aspect of the science involved, and then answer questions the readings raise relevant to your fact situation. You would be surprised how hard a college professor will work for $100 an hour – if he hasn’t already learned he can make more money as an expert witness.

It’s a great learning opportunity. You can develop some tremendous friendships. If you do it right the first time, you can develop your own expertise in the subject for use in other cases. And sometimes you can even develop your teacher into an expert witness for your own side as he becomes interested in the forensic aspects of the subject matter.

Robert L. Habush’s Art of Advocacy: Cross-Examination of Non-Medical Experts, by Matthew-Bender at Section 1.18(2) lists the more common sources for gathering technical data for use in cross-examining non-medical experts. Harry Philo’s Lawyers Desk Reference can also be an invaluable resource.

If you are going to litigate in a technical area, you have an obligation to learn that field of expertise. A lawyer should no more file a malpractice action against an accountant without understanding the basic principles of accounting, than he would file a contract action without understanding the basic principles of contract law.

If you do not have the time to learn a subject thoroughly enough to face an expert witness, associate someone who does, then practice in another area of the law. But if you do accept the challenge of learning a new field, the experience can be tremendously rewarding.

Scout the Expert

If you face an expert who has published in his field of expertise, then it is worth your while to obtain and review everything the expert has published. Your teacher or your own expert can trace the articles through the appropriate professional index. Index the publications:

(a) for contradictory statements for use in impeachment,

(b) for general principles supportive of your theory, and

(c) for embarrassing quotations about the limits of the expert’s knowledge.

It is amazing how experts writing for each other in technical journals constantly remark about how little they know and how much research there is to do, yet faced with a jury of laymen they can appear so sure of a conclusion adverse to your client – until cited to their own comments about the limitations of knowledge in their field of expertise.

Even if the writings are not exactly on point, they will often give you a flavor of the expert’s reasoning process, style and personality. And if you are reading articles by an expert, be sure to read the criticisms of those articles by other experts.

Where the expert has not published extensively but has previously testified, trial transcripts and depositions can be obtained from friendly trial lawyers. Start with Jury Verdicts Northwest, a service which compiles all verdicts rendered in Washington State with annotations including the names of the attorneys and the experts called by both sides. Go to the reports, call the opposing attorney and get a copy of the expert’s deposition, listen to a few war stories on how to approach him at trial, obtain the lawyer’s assessment of the expert’s strengths and weaknesses, and if the case was appealed, get a transcript of the trial testimony.

Do all of this before your own deposition of the expert witness. Read the material you obtain. Every expert has his own little tricks to avoid a question he does not want to answer, just like the rest of us. I know I use the same tricks over and over again, and I assume experts do too. And if you have seen a technique before, be waiting with a response.

The heart of preparing for cross-examination of the expert witness is a thorough deposition fully exploring the expert’s qualifications, and conclusions, then assumptions, data, and reasoning used to reach those conclusions.

Use Your Own Expert

Use your own expert to help you learn the subject matter, to scout the adverse expert, and to prepare your cross-examination.

Since anything that can possibly go wrong with the cross-examination of an expert usually does, try out each line of questioning on your own expert to find the defects in your comprehension of the field which may make particular approaches unworkable.

If the upcoming trial is really a battle of experts who disagree, do not let your expert take the position that he is correct based on his superior skill, knowledge, and training. Make the expert explain to you, in simple lay terms, precisely where the adverse expert agrees on common ground, where he accepts different assumptions or “factual” data, where his approaches and reasoning processes differ, and where in each instance the opposing expert is in error.

Attacking the opposing expert as unqualified and biased is not enough, and at times it is even counter-productive, when a jury will more easily believe the expert has simply made a mistake and come to the wrong conclusion, particularly when you can point to exactly where the error was made. Make it an obligation of your expert to explain to you why the defense expert is wrong, so you can explain it to the jury.

Establish Realistic Goals

From the moment the client first walks in the door, everything a good trial lawyer does is focused on one moment – the opportunity he has to stand before the jury in final argument and explain the client’s plight.

Every action the personal injury trial lawyer takes is designed either to prepare for that final argument or to convince an insurance company to pay money so that final argument is never delivered.

Cross-examination is no different. It is merely another opportunity to gather ammunition for final argument. Every cross-examination, every line of questioning, every question is subject to one scrutiny – “How will this help me in my closing argument to the jury?”

The general goal of cross-examination is to advance the “theme” of a case by securing the ammunition needed for final argument.

The conceptual error made by too many lawyers is to analyze the cross, independent of the entire trial, and thereby to set an unrealistic goal – usually the goal of “destroying the witness.” Because of the witness’ combination of expertise, stature, intelligence, and experience, it is unrealistic to expect to “destroy” each expert. Set an achievable goal. Wigmore said that the goal of cross-examination should be to “soften the impact of the witness by confrontation.” With an effective expert, the goal may be no more than to prevent the expert from winning the case for the other side. Don’t expect to win your case in cross-examination of your opponent’s experts, you will be doing better than most if you break even and avoid a disastrous loss.

In Part 4 of this article series, I will discuss the specific preparation of gathering ammunition for use in final argument.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

October 21, 2014

Expert Witness Marketing Consultant Rosalie Hamilton On Expert Pay

In her special report EXPERT PAY DISCUSSION, Rosalie Hamilton, the leading authority on expert witness marketing and founder of Expert Communications, writes:

You May Enjoy Your Work, But Don't Work for the Fun of It — Make Sure You Get Paid!

A common refrain among expert consultants is, "How do I make sure I get paid?"

The most important step in getting paid is planning to get paid. Being compensated for your work is too important to leave to chance, hope or optimistic confidence in the decency of your clients. It's business, for goodness' sake!

Do attorneys like to sign payment agreements? Usually not, particularly plaintiff attorneys. But you should ask yourself why. If the fees are agreed upon, and you are obligated to do the work just as the client is obligated to pay for the work, why should putting that agreement in writing be a problem?

My recommendation is to use an agreement that lays out simply and clearly, at a minimum, your rates for review, deposition, court appearance, travel time, and expenses, as well as your required retainer. I also recommend that you include a cancellation policy so you are not left holding an empty bag along with an empty waiting room or office when deposition or court appearances are postponed or cancelled. There should be signature lines for you and the client and dates for both signatures.

In your engagement agreement, you can also choose to spell out your expected payment schedule and other details. You can specify additional elements as venue in case of disagreement, although some experts do not wish to bring up the negative.

Your engagement agreement can be called a Fee Schedule, Litigation Consulting Agreement or Contract, or it can be part of an engagement letter (see examples of engagement agreements in The Expert Witness Marketing Book).

The most important points in getting paid are:

1) Do not begin reviewing files until you receive a retainer for the estimated time of the review.
2) Do not deliver your written report until your invoices are brought current.
3) Do not leave your office for a deposition without having received payment from (usually opposing) counsel covering estimated testimony time.
4) Do not leave your office for a court appearance without having received payment from retaining counsel covering estimated testimony time and bringing all other invoices current, unless you have an established relationship with the law firm.

You will notice in my recommendations, (which are based upon many true stories with unhappy endings), the absence of the words, "having received a promise that counsel will have your check when you arrive to testify."

In working with our expert clients on their fees and collection procedures my policy is this: If you are assertive, you will rarely have to become aggressive. For most people, having to be aggressive is not a pleasant experience, especially when dealing with attorneys. Avoid this situation by handling the administrative, invoicing and collecting procedures of your practice in a business-like manner — that is, clearly, consistently, and as early as possible.

Excerpted from The Expert Witness Marketing Book by Rosalie Hamilton. Read more: http://www.expertcommunications.com/

October 12, 2014

Medical Malpractice Expert Witness On Legal Medical Causation Part 1

In CHIROPRACTIC / MEDICAL MALPRACTICE CAUSATION AND THE DEGENERATIVE SPINE, medical malpractice expert witness Richard K. Skala, DC, writes:

Proving or disproving Legal Medical Causation is based on testimony by expert witnesses regarding the “proximate” cause of negligence to a standard of reasonable medical probability. The plaintiff bears the burden of its expert being able to conclude to this standard that indeed negligence occurred and thus damage ensued. The defense expert bears the opposite burden of concluding to the same standard that there was no cause of negligence and thus no damage.

Regardless of which side of the argument an expert speaks to, their conclusions must be persuasive in terms of causation. The standard of reasonable medical probability essentially means that “it is more probable than not” that a chiropractor did or did not do something negligent during the course of treating a patient that resulted or caused some degree of damage. Experts on both sides of the arguments must be able to demonstrate that the conclusions they pose as “within reasonable medical probability” have enough evidentiary weight to convince a reasonable person that their conclusions are in fact correct.

The chiropractic expert will be challenged by the opposing party during deposition and/or trial in terms of the foundation used to come to their conclusions within a reasonable medical probability.

THE FARMER AND HIS DEGENERATIVE LUMBAR SPINE
In a recent case involving a 50 year old male farmer with no prior history of back pain who injured his low back in a fall and had low back pain he initially treated with his family physician (MD) for one month. The MD took x-rays and noted age/occupation consistent signs of degeneration at L5/S1. The treatment plan of medications and exercise provided no relief. After 4 weeks of failed treatment the farmer presented to a chiropractor with his complaint of low back pain. The farmer did not inform the DC of his prior MD treatment. The DC exam revealed only loss of motion and some muscle guarding. There were no abnormal orthopedic or neurological findings. No x-rays were taken. A treatment plan of side posture manipulation of the lumbar spine was initiated with three visits per week for three weeks. The farmer was also told not to perform his usual weight lifting routine and not lift more than 10 pounds or perform any forward bending motions. During the course of this plan the farmer indicated improvement and after four weeks, the symptoms were rated as slight, there was restoration of lost ROM and the farmer was discharged from the DC’s care. Four weeks after discharge the farmer returned to his family physician and provided a history of ongoing low back pain that had become worse, indicating that the worsening was directly related to the DC’s treatment. The farmer’s condition worsened, involving leg pain with numbness and tingling, which led to a referral to a neurosurgeon. The neurosurgeon had an MRI done with revealed L5/S1 disc herniation impinging the right S1 nerve root. Laminectomy, foraminotomy L5/S1 discectomy was performed. Post surgically the farmer suffered from permanent motor loss in the right leg. The farmer sued the DC for malpractice.

The plaintiff offered a chiropractic expert who testified that the DC had violated multiple standards of care. The basis of these conclusions was largely based on review of the medical records of prior MD treatment. The plaintiff also offered a neurosurgical expert, who testified that the DC treatment “significantly contributed to and likely caused the disc herniation,” basing these conclusions on professional experience and observations over the course of many years.


A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater.

October 9, 2014

Economic Damages Expert Witness On Future Earnings Part 1

In Personal Injury Litigation - the Difference Between Future Earnings and Future Earning Capacity, economic damages expert witness Ronald T. Luke, JD, PhD and Mary L. Hoane, CPA/CFF, MBA write:

This paper discusses one of many issues that can arise in calculating economic damages in personal injury litigation. The issue is the important distinction between projecting a person’s future earnings and a person’s future earning capacity. Earnings are defined as remuneration of a worker for services performed during a specific period of time. When projecting future earnings the economist is projecting the amount the person would have earned but for an injury. When projecting future earning capacity the economist is projecting the amount the person could have earned if he had chosen to maximize his earnings.

In litigation where the injured party remains alive and able to receive a damages award, the correct measure of damages is loss of future earning capacity; the amount the injured party could have earned had the injury not occurred less the amount he could earn given the physical or mental limitations resulting from the injury. When the injured party is deceased, the measure of damages in a wrongful death case is the amount of support the survivors would have received from the injured party. The starting point in calculating the amount of support is the projected earnings of the deceased: the amount the deceased would have earned and from which support could have been paid to the survivors.

Whether the difference between projected earnings and projected earning capacity is large or small depends on the demographic characteristics of the individual (e.g., age, gender, education, race/ethnicity, aptitudes, interests, physical limitations) and their individual life choices (e.g., child care, retirement plans, choice of occupation). When the injury is to a young person who has not established a career and perhaps has not completed his formal education, the economist must rely more heavily on statistics for the average person with the demographic characteristics of the injured party. When the injury is to an older person who has a lengthy work history and who has expressed his retirement plans, the economist can base his projections more on the specific characteristics of the injured party and rely less on statistical averages.

Dr. Luke and his colleagues have been accepted as expert witnesses in state and federal courts and before administrative agencies in more than 25 states.

October 5, 2014

Cross-examining the Expert Witness by Dean Brett Part 2

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes:

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.

In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness.

Against the expert witness defending his home territory, the trial lawyer has four main advantages.

1) The trial lawyer can choose not to ask any questions at all, or more likely, can choose not to ask certain questions. He can avoid certain battlefields. The task of preparing to cross-examine an expert witness is largely one of determining which questions NOT to ask.

2) The trial lawyer can choose to ask only questions which require either a “yes” or a “no” answer. He can take away the expert’s most potent weapon – the monologue.

3) The trial lawyer can learn the specific narrow aspect of the expert’s subject matter that is relevant to the specific issue being tried. He can learn that part of the territory on which the battle will be fought.

4) And finally, the trial lawyer can analyze and criticize the expert’s answers in the home territory of final argument, on his own turf, where the expert is speechless.

Effective use of these four advantages minimizes the expert’s strength, his expertise in the subject matter, and maximizes the trial lawyer’s strength, the ability to question narrowly then comment on the answer without reply.

Put it in perspective, right at the start. The average expert witness knows as much about his or her field as you know about law.

“That means a lot of different things. It means, for example, that the knowledge and ability of nearly any expert is uneven. It means that the typical doctor knows no more about hepatitis, pyloric stenosis or coronary arrhythmia than the average lawyer knows about promissory estoppels, renvoi, or the doctrine of worthier title. It means that a lawyer can learn enough about the flash point of waxes to cross-examine an electrical engineer who specified wax paper condensers in a color television set designed to operate at just 5 degrees lower than the burning point of wax. It also means that the witness – unless he has had previous courtroom experience – is going to be scared.” McElhaney, Trial Notebook, page 167. *

In the remaining parts of this article series, I will discuss:

The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.

- Dean Brett

* McElhaney, James W., Trial Notebook, The American Bar Association, 1981


The next installments of this article series will be:

The four main advantages the trial lawyer has against the expert witness defending his home territory;
The four stages of general preparation for cross-examination of a defense expert;
The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

September 29, 2014

Forensic Expert Witness Association's 2015 Annual Conference

The Forensic Expert Witness Association's Annual Conference will be held in San Diego on April 23-25, 2015.

The Forensic Expert Witness Association's Annual Conference is a national event that brings together a large and diverse group of professionals from across the country who share common goals related to forensic consulting and expert witness services in all fields of discipline. FEWA welcomes new and seasoned forensic consultants, attorneys, legal professionals, exhibitors, and those interested in exploring forensic consulting as a career to attend the 2015 Annual Conference, April 23-25 at the Westin San Diego.

The FEWA Annual Conference offers forensic consultants who often serve as expert witnesses, the opportunity to enhance their knowledge and techniques required to perform in an effective manner. Forensic experts testify in court trials or provide vital information that will be used in a trial. Oftentimes, they must perform highly technical and precise work where one misstep can have an adverse impact on a legal case. In almost every case, the expert's testimony is a necessity and is expected by jurors and judges.

The conference schedule features two days of continuing education sessions for experts and networking with attorneys, judges, arbitrators and trial consultants, plus an optional pre-conference day of training. The optional pre-conference sessions will feature two concurrent educational tracks for those aspiring to become forensic consultants as well as for seasoned forensic consultants seeking advanced interactive education. In addition, the conference offers attendees the opportunity to earn over 15 credit hours of Minimum Continuing Legal Education (MCLE), Continuing Professional Education (CPE) for CPAs, plus Continuing Education Credits towards FEWA’s soon to be announced Certified Forensic Litigation Consultant (CFLC) certification program. Furthermore, the conclusion of the meeting will feature presentation of the FEWA President's National Meritorious Service Awards.

Conference co-chairs Allan Kleiner and Mike Wakshull are collaborating with the FEWA Annual Conference Planning Committee to develop a schedule of courses designed to be of interest to experts of all disciplines and all levels of experience. Attorneys, judges and fellow forensic consultants will share their experiences and expertise on a wide range of topics including, how experts are expected to contribute in all aspects of a trial, effective report writing, the role of technology, cross and direct-examination skills, communication skills to effectively fulfill the needs of jurors, alternative dispute resolution, and much more! This year’s Conference theme “Where Forensic Consultants Learn, Connect, & Grow” empowers attendees and speakers to engage with like-minded professionals who seek advanced interactive education, peer-to-peer networking and referrals, and direct interaction with attorneys.

More info:http://www.forensic.org/

September 27, 2014

Business Valuation Expert Witness Answers FAQ For Attorneys

In Do I need a forensic accountant or valuations expert in my case? business & accounting expert witness Richard Teichner, CPA, CVA, CDFAJ answers frequently asked questions attorneys have regarding forensic accountants and about business valuations.

Certified public accountants who provide litigation support services are often referred to as “forensic accountants”. They normally are used as experts in accounting related matters that are necessary in support of business or family law litigation matters. What makes forensic accountants different is that they are experienced in using multiple methods of financial and economic analysis to provide appropriate and objective conclusions on complex financial issues, often when the facts or data are incomplete. If you are representing a client in a matter that requires financial evaluation, such as a determination of economic damages, tracing funds that have been diverted, personal injury and other matters involving financial issues, then a forensic accountant can be a valuable asset to your case. If a business valuation is needed as a means to measure damages or for other purposes in litigation, in divorce matters, or regarding the purchase or sale of a business (or business interest), then a business valuator can assist in the process.

Forensic accountants often have experience in serving as an expert witness. When explaining complex financial analyses to the trier of fact, it is imperative that your expert witness is skilled at clearly and accurately explaining the details in a manner that can be easily understood. Expert witnesses also must be objective and utilize generally acceptable practices in order for their testimony to be credible and admissible.

How can a forensic accountant help my case?
Forensic accountants can assist throughout the litigation process. During discovery and fact-finding, they can aid your investigation by advising you on what documentation you should obtain. They can also help you identify the accounting and valuation questions pertinent to your case, which includes their assistance with formulating requests for production, interrogatories, and questions to be asked of witnesses at deposition and trial. Thus, this process can help you streamline your trial strategies and the focus of your case. The earlier you hire your forensic accountant in the litigation process, the more assistance and support you will likely receive.
What qualities should I look for in selecting a forensic accountant?

There are a number of qualities you should look for when selecting a forensic accountant to work with on your case. The following summarizes some of the factors to consider in selecting a forensic accountant or valuation consultant on a legal matter:
• Experience: How many years of practical accounting experience and expert consulting experience do they have?
• Education: Are they licensed as a Certified Public Accountant? Do they have any professional designations? Do they stay current with continuing education courses, books and publications?
• Ability to communicate: Will they be able to clearly express complex accounting theories and explain financial issues in a manner a jury can understand? Have they given presentations to attorneys and other professionals?
• Impartiality: Will they be objective? Have they served as a consultant both to plaintiffs and the defense in litigation matters?
• Credibility: Do they appear to be honest and believable? How do you think they will be perceived by a judge or jury?
• Support: In the preparation of your case for trial, how much advice and support do you think they will offer? Do they appear to be committed to your case without being biased?
• Confidentiality: Do they understand the importance of the attorney-client relationship? Do they have experience with handling highly sensitive documents?


Read more:
Mr. Richard M. Teichner
Teichner Accounting Forensics & Valuations, PLLC

September 24, 2014

Neurosurgery Expert Witnesses

Neurosurgery expert witnesses may consult on trauma neurosurgery, neurosurgeons, spinal surgery, and related matters. In Rules for Neurosurgical Medical/Legal Expert Opinion Services The American Association of Neurological Surgeons writes that "the American legal system often calls for expert medical testimony."

Proper functioning of this system requires that when such testimony is needed, it be truly expert, impartial and available to all litigants. To that end, the following rules have been adopted by the American Association of Neurological Surgeons. These rules apply to all AANS members providing expert opinion services to attorneys, litigants, or the judiciary in the context of civil or criminal matters and include written expert opinions as well as sworn testimony.

A. Impartial Testimony
1. The neurosurgical expert witness shall be an impartial educator for attorneys, jurors and the court on the subject of neurosurgical practice.
2. The neurosurgical expert witness shall represent and testify as to the practice behavior of a prudent neurological surgeon giving different viewpoints if such there are.
3. The neurosurgical expert witness shall identify as such any personal opinions that vary significantly from generally accepted neurosurgical practice.
4. The neurosurgical expert witness shall recognize and correctly represent the full standard of neurosurgical care and shall with reasonable accuracy state whether a particular action was clearly within, clearly outside of, or close to the margins of the standard of neurosurgical care.
5. The neurosurgical expert witness shall not be evasive for the purpose of favoring one litigant over another. The neurosurgical expert shall answer all properly framed questions pertaining to his or her opinions on the subject matter thereof.

B. Subject Matter Knowledge
1. The neurosurgical expert witness shall have sufficient knowledge of and experience in the specific subject(s) of his or her written expert opinion or sworn oral testimony to warrant designation as an expert.
2. The neurosurgical expert witness shall review all pertinent available medical information about a particular patient prior to rendering an opinion about the appropriateness of medical or surgical management of that patient. Revised 03/22/06
3. The neurosurgical expert witness shall be very familiar with prior and current concepts of standard neurosurgical practices before giving testimony or providing written opinion about such practice standards.

C. Compensation
1. The neurosurgical expert witness shall not accept a contingency fee for providing expert medical opinion services.
2. Charges for medical expert opinion services shall be reasonable and commensurate with the time and effort given to preparing and providing those services.


More information: https://www.aans.org/

September 20, 2014

Automotive Expert Witnesses & Recalls

Automotive expert witnesses may consult on auto defects, auto engines, automotive components, and automotive recalls. In the news, General Motors Co. is recalling some 2011-2014 Chevrolet Express compressed natural gas vehicles. About 3,200 vans may leak natural gas from the CNG high pressure regulator and catch fire.

SUMMARY:
General Motors LLC (GM) is recalling certain model year 2011-2014 Chevrolet Express compressed natural gas (CNG) vehicles manufactured September 10, 2010, to April 28, 2014, and GMC Savana CNG vehicles manufactured May 23, 2011, to April 21, 2014. The affected vehicles may leak natural gas from the CNG high pressure regulator.

CONSEQUENCE:
A natural gas leak in the presence of an ignition source increases the risk of a fire or explosion.

REMEDY:
GM will notify owners, and dealers will replace the high pressure regulator, free of charge. The manufacturer has not yet provided a notification date. Owners may contact Chevrolet customer service at 1-800-222-1020 or GMC customer service at 1-800-462-8782. GM's number for this recall is 14321.

The NHTSA also announced this week that Adrian Steel Company is recalling certain model year 2012 Ford E-150, E-250 and E-350 Commercial Cargo Vans modified by Adrian between September 21, 2012, to September 24, 2012. The affected vehicles are equipped with certain propane fuel system conversion kits with an aluminum fuel line fitting manufactured by Roush CleanTech. Due to a reaction between the different metals, the affected kits may develop a propane leak where the aluminum fuel line fitting contacts the brass supply valve housing.

CONSEQUENCE:
A propane leak in the presence of an ignition source increases the risk of a fire.

REMEDY:
Adrian will notify owners, and dealers will replace the aluminum fuel line fittings with stainless steel fittings, free of charge. The recall is expected to begin in September 2014. Owners may contact Adrian customer service at 1-800-677-2726.

More information: Latest Recalls Announced by Manufacturers.

September 17, 2014

Business Expert Witness On Coming To Grips With Risk

In Coming to Grips with Risk, business expert witness Shelley Lee Boyce writes that "Your tolerance for risk is an important factor in how you allocate your investment portfolio among different investments."

While investments are subject to many different types of risk, risk tolerance typically refers to your ability to hold an investment when the return is either less than you expect or it declines in value. You should only assume a level of risk you are comfortable with, so you aren't tempted to sell an investment when it is at a low point.

There are at least two factors affecting your risk tolerance. One is the level of investment risk appropriate for you based on your personal situation. Key factors to consider include:
• Family situation - If you are married and in good health, you can probably assume more risk than someone going through a divorce or who has health problems.
• Age - Typically, you are less willing to assume risk as you age.
• Employment - Individuals with stable employment or whose spouse also earns an income will typically be able to assume more risk.
• Debt and liquidity - If you have sufficient liquid assets to weather temporary financial problems, you'll typically feel more able to take on risk.
• Insurance - If you have insurance to cover the major risks in life, including life, health, disability, and property insurance, you will probably feel more willing to assume more risk with your investments.
• Other investments - The current composition of your portfolio will affect how much additional risk you want to assume. If your portfolio already contains investments with significant risk, you might want to invest in more conservative investments. On the other hand, if your portfolio is primarily composed of conservative investments, you may want to take on more risk
.
The other element is your emotional tolerance for risk. Even if your personal situation indicates you could assume a high level of risk that may not be prudent if you don't feel comfortable with that risk. How you've reacted to the stock market fluctuations over the past few years should provide an indication of your emotional comfort with risk. Have you taken the fluctuations in stride or were you anxious about your portfolio's value? Did you frequently check your portfolio's value or did you only check occasionally? Were you tempted to sell all your stock investments or did you realize that downturns are just a normal part of the investing process? What would you do if the stock market started to decline substantially again? How long could you withstand a declining market before feeling compelled to see? After answering these questions, you should have a better feel for your emotional tolerance for risk.


September 15, 2014

Cross-examining the Expert Witness by Dean Brett Part 1

In How to prepare to cross-examine an expert witness, attorney Dean Brett writes on what he describes as "one of the trial attorney's most difficult tasks."

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.

Part 1 - Why cross-examine an expert witness?

The cross-examination of an expert witness is one of the trial lawyer’s most difficult tasks. The expert must be assumed to be an intelligent person who has focused his intelligence on the particular scientific, technical, or specialized field of inquiry. The rules of evidence allow the expert witness certain unique advantages, including:

the chance to state his opinion (ER 702);
to include conclusions on the ultimate fact to be decided by the jury (ER 704);
to be buttressed by facts or data not in evidence (if of a type reasonably relied upon by other experts in the particular subject matter) (ER 703);
to include facts even if those facts or data would not otherwise be admissible in evidence (ER 703);
to include facts or data which the expert need not disclose in direct examination (ER 705);
allowing the jury to be told the expert was appointed not by your opponent, but by the court (ER 706).

To make matters even more challenging, frequently the expert witness has more courtroom experience and savvy than the cross examiner.

“As a general thing, it is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry. Lengthy cross-examination along lines of the expert’s theory is easily disastrous and should rarely be attempted.” Francis Wellman, The Art of Cross-Examination, 1903.

Why then ever cross-examine an expert witness? Only because you have no alternative.

If you bring a claim of professional negligence or products liability, you are claiming that the defendant made an error in his own field of expertise, and you thereby incur an obligation to your client to prove the standard of conduct in that field of expertise and to cross-examine expert witnesses called to defend on the basis that the standard is not as you allege, or if it is, that it was met.

To fail to cross-examine is to concede the heart of the claim. Even if you try only “simple” negligence claims, you must be prepared to meet witnesses with expertise in engineering, accident reconstruction, medicine, psychology, vocational rehabilitation, and economics, to name a few.

Precisely because they are so difficult to examine, your opponent will insist on presenting the testimony of experts on the critical issues of the case. Those experts, because they are looked up to by the jury and because they are often hired for the specific purpose of destroying a necessary element of your proof, often cause more damage than lay witnesses and thus compel cross-examination. Failure to examine expert witnesses may be viewed by the jury as a surrender on the critical issues they support.

The next installments of this article series will be:

The four main advantages the trial lawyer has against the expert witness defending his home territory;
The four stages of general preparation for cross-examination of a defense expert;
The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.