March 28, 2015

Forensic Psychiatry Expert Witness On Testamentary Capacity

In Testamentary Capacity to Execute a Will and Mental Competency to Execute a Trust or Contract, forensic psychiatry expert witness Stephen M. Raffle, M.D., writes:

A Will is not a contract because it does not represent a promise to perform a service or execute an action for another person (including corporations). It is solely an allocation of a person’s wealth on death. A contract, such as a Trust, implies the potential for an adversarial relationship if one of the parties does not perform as promised. In a Trust the parties may be the Trustors and the Trustees. Therefore, an adversarial relationship potentially exists between the parties. Because of this potential adversarial relationship, each of the parties must be able to understand the consequences of their actions vis-à-vis being in default. This requires each party to be able to understand with meaning (mental competency) the terms and conditions of the contract which may themselves be complex and require multiple steps. For this reason the mental state required to enter into a contract requires an understanding of consequences and an ability to understand complex meanings contained within the contracted obligation, neither of which is explicit or implied in the execution of a Will.

Mental competence to enter into a contract has a higher threshold than mental competence to execute a Will. It is therefore possible for a person to retain testamentary capacity but not be competent to execute a Trust.

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

March 23, 2015

Undue Influence Expert Witness On Making Bequests Part 1

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

Undue influence when creating a will, codicil to amend a will, trust or other legal instrument, occurs when the conduct of another prevents a testator (or anyone for that matter) from exercising his or her free will. The occurrence of undue influence is established by demonstrating that the testator’s testamentary disposition was caused by undue pressure, argument, or other coercive acts which destroyed the testator’s freedom of choice in the disposition of the assets of his or her estate, and is replaced by the substituted judgment/wishes of another. Litigants may characterize the circumstances as perceived or misperceived exploitation of a vulnerable individual, especially as we see a generation of baby boomers reach ages at risk for dementia and Alzheimer’s, both medical conditions best assessed by a medical doctor. Undue influence may be proven with circumstantial evidence, i.e., without direct evidence. It is necessary to demonstrate by fact that undue influence has occurred. Often the term “undue influence” in a testamentary setting is lumped with the phrases “testamentary capacity” and “competency” to make a Will or Trust. A dispute about testamentary capacity may arise in the same case as undue influence, but from the forensic psychiatrist’s point of view, the issues are different. The making of Wills vs. Trusts have different thresholds of competency and the distinction is important to understand when evaluating if susceptibility to undue influence is considered.

There are various indicia of undue influence. Those indicia include, but are not limited to, the following:

• An unnatural cutting off of any substantial bequest from the natural objects of an individual’s bounty, such as children, e.g., if one child is left the entire body of an estate and another child is provided nothing.

• Disposition of an estate which is at variance with the decedent’s intentions as expressed before and after the execution of the document in question. In other words, the testator expresses that the will (or trust) provides for “X” before the will is signed and again at some later date. However, the bequest proves to contain a different provision entirely. This situation may indicate the testator suffers from dementia and is not the victim of undue influence. A forensic psychiatrist must take into account a wide variety of evidence to form an opinion.

Note: When a testator excludes a natural heir due to a delusion about the heir, the testator is deemed incompetent to execute a will or trust.

• Relations existing between the chief beneficiaries and the decedent were such that one of the beneficiaries was provided an opportunity to control the testamentary act. This commonly occurs when one child manages all of the assets of the testator and otherwise controls the wealth and care of the testator to the exclusion of other children (child).

• The testator was vulnerable to undue influence because he/she suffered from a mental or physical condition which permitted a subversion of his or her free will. This may include a chronic physical condition or mental decline, as mentioned above and below.

I have evaluated cases in which the considerations included the side effects of medication, mentally disabling brain conditions (e.g. a brain tumor), or dementia brought on by the toxic side effects of kidney or liver damage, to name only a few. Conversely, regardless of evidence of physical causes of mental decline, the primary impetus for the testator’s behavior may prove to be caused by the behavior of another person manipulating or exploiting the testator. When assessing undue influence on a deceased testator, the medical training of a forensic psychiatrist, who is a licensed medical doctor, becomes especially relevant as medical records are often the primary evidence available.

• When the chief beneficiary of the testator also is active in procuring the execution of the instrument which provides the bounty, the question must arise whether or not undue influence was exercised.

• If undue influence is alleged against a fiduciary of the testator, the burden of proof shifts to the fiduciary to establish no undue influence occurred.

It is not necessary to demonstrate the existence of mental dysfunction in order to prove undue influence. There may be mental “weakness” (see Estate of Yale), which is probative of undue influence. This “weakness” from whatever cause is nevertheless less debilitating than the mental defect required to establish a lack of testamentary capacity. In Estate of Yale, the court held that a persuasive indicia of undue influence is a physical and mental condition of the testator “such as to permit a subversion of his freewill.” Susceptibility to undue influence may include advanced age, medical deterioration due to a progressive medical mental deterioration, and/or reliance on the beneficiary as a caregiver.

Usually, undue influence is established by circumstantial evidence and, by necessity, inferences. Generally, the existence of undue influence is not investigated until the death of the testator, at which time, of course, the testator no longer is available to testify about acts that influenced him. Rarely is direct testimony available. In the case of David v. Hermann, for example, the court inferred the settlor’s sudden negative shift in attitude toward the older daughter to be caused by the younger daughter falsely “poisoning the settlor’s mind because it [the court] could find no other rational explanation.”

It is generally held that the evidence of cumulative events are taken together in order to support a finding of undue influence; a single event is rarely sufficient as proof. Many types of circumstantial evidence may be produced which when taken cumulatively become more than the sum of their parts.

Not all influence is “undue.” Another close individual such as a spouse may influence the testator to make certain decisions in order to best provide for heirs. The influence becomes “undue” for the reasons given above....

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

March 16, 2015

Business Expert Witness On World Economies Part 2

In Are We Nearing a Global Turning Point?, business expert witness Douglas E. Johnston writes:

Several important economic factors appear to be moving unfavorably for the US at the moment, both domestically and abroad, and there are increasing indications that America
may not be able to orchestrate a hoped-for global resurgence on its own. Despite
encouraging signs of domestic recovery, fundamental structural problems persist in the
US economy. The National Debt now exceeds $18 Trillion, the Department of
Agriculture confirms that well over 46 million Americans continue on food stamps, and
key voices have stepped forward asking for a deeper look at several U.S. economic
statistics....

Mathematically, the odds are very strong that a global realignment of the dollar, euro and yuan and their relative weighting and exchange rates will occur, and possibly soon. Why? Because despite the brave declarations of economic recovery from global leaders, each of them has very capable advisors who understand the reality that the entire planet is daily sinking deeper into depression. The Baltic Dry Index, long noted as a reliable surrogate statistic for the volume of global shipping trade, has reached an all-time low in February 2015. It is increasingly possible that the passage of time plus continued money printing from central banks may no longer produce reliable global economic growth.

With the vaunted Chinese economy weakening to its slowest growth rate in 24 years, with Japan (the world’s #3 economy) now shrinking at 1.2% per year, with Russia now contracting 10% or more under new economic sanctions, with Europe in steep recession, and with oil and many global commodity prices now in free-fall, the allegedly-recovering US economy and its targeted 3.5% growth rate for 2015 are being touted yet again as the growth engine for the world. As we look at the increasingly-frequent negative revisions from the BLS, Commerce Department and others regarding broad economic activity, employment rates, durable goods orders, and housing, the repeat image of the ‘US as Economic Locomotive to the World’ might be a little more far-fetched this time around. The problem is global, and the US is huffing and puffing but maybe no longer powerful enough to pull a growth train of debt-laden railcars, with some of them now moving in reverse. As Canadian Finance Minister Joe Oliver recently noted, the US ability to carry the world economy “is simply not sustainable.”

Global growth has always been the answer to the debt problem, but the idea of more and more money-printing bailouts to ‘buy time’ for the world economy to heal may have been an overworked solution for many years now. As former PIMCO Co-Founder Bill Gross (now with Janus Capital) wrote in his January Investment Outlook:

The power of additional and cheaper credit to add to economic growth
and financial asset bull markets has been underappreciated by investors
since 1981…There comes a time, however, when zero-based, and in some
cases negative yields, fail to generate sufficient economic growth…
The good times are over….The time for risk-taking has passed
.

The European Union Times recently quoted the McKinsey Global Infrastructure Report in noting that global debt has grown by 40% from $142 Trillion in 2007 to $199 Trillion in 2014. But global economic growth has not kept pace, indicating that the higher debt levels will be even harder to service. While additional trillions in bailouts, global central bank money-printing and QE announcements still offer very welcome news headlines to markets in the short term, perhaps the smart money now acknowledges that target 3.5% US growth forecasts may not come even close to providing the ‘escape velocity’ to overcome this added debt load, or to pull the global economy out of the looming debt problems and core mathematics.

Can lower crude oil prices provide the missing global growth stimulus? Undoubtedly, the broad stimulus of the recent 60% decline in global crude prices over the last 8 months will provide both relief and a small boost to the common man at the gas pump, but the losers on the other side of the oil price equation are powerful companies, banks and countries which have a tighter economic nexus. Their concentrated losses could have a more impactful and disproportionately large effect on global markets, especially in the financial derivatives area, as compared to the more widely-scattered gains of the average man in the street. We will see. The quadrillion dollar derivatives market has yet to be fully understood by many.

But lastly, what again about the recent ‘good news’ of the steadily surging dollar? There seems to be little real relief there either, as the other side of the stronger dollar is that it makes precious US exports more expensive and thus less competitive in global markets. As Caterpillar CEO Doug Oberhelman carefully noted last week: "The rising dollar will not be good for U.S. manufacturing or the U.S. economy." As the G-20 meets this week in Turkey, perhaps the world will look to other economic engines and other solutions.

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. Early in his career he was named as the youngest bank president in Texas, and thereafter he established multiple bank offices in California and Texas. Expanding into Corporate Finance and Mergers & Acquisitions, he became a ‘Founding Father’ of the largest private company in Los Angeles. As a C Level executive, Doug has ‘hands-on’ debt and equity finance and documentation experience with both lenders and investors involving hundreds of companies engaged in technology, service, real estate, manufacturing, and entertainment across the US as well as in Europe.

March 12, 2015

Emergency Medicine Expert Witness On Choosing an Orthopedic Surgery Expert

In Choosing an Orthopedic Surgery Expert Witness, Burton Bentley II, M.D FAAEM, writes:

Orthopedic surgery (commonly spelled “Orthopaedic” in academia) is a field of surgery dealing with the surgical treatment of disease and injury of the musculoskeletal system. Orthopedic surgeons are licensed physicians who complete a five year residency program in orthopedic surgery often followed by subspecialization in a specific branch of orthopedic surgery. Common subspecialty areas include Hand Surgery, Total Joint Reconstruction (i.e. arthroplasty), Pediatric Orthopedics, Foot and Ankle Surgery, Spine Surgery, Sports Medicine, and Trauma. Board certification in Orthopedic Surgery is conferred by the American Board of Orthopaedic Surgery, a section of the American Board of Medical Specialties (ABMS). Physicians who enter the field of orthopedics via an osteopathic pathway (D.O. rather than M.D.) are eligible for Board Certification under the American Osteopathic Board of Orthopedic Surgery.

Orthopedic surgeons diagnose, image, medically treat, and surgically correct a broad range of musculoskeletal conditions. Common procedures in orthopedic surgery include arthroscopic surgery upon the knee and shoulder, joint replacement surgery (predominantly upon the hip and knee), spine surgery, and carpal tunnel release. The foundation of orthopedics, however, is the stabilization and treatment of various fractures. Fractures may be treated non-operatively (closed reduction) or operatively (open reduction). Some fractures may require internal hardware (internal fixation) while others require external hardware (external fixation) or no hardware at all. The most common fracture sites include the hip (e.g. femoral neck), ankle, tibia, wrist (radius and/or ulna), humerus, and clavicle. Other acute conditions in orthopedic surgery include compartment syndrome and the management of complex bone and joint infections. Depending on the complexity of the procedure, orthopedic interventions may be performed in the office, in an outpatient surgical facility (ambulatory surgery center), or in a hospital-based operating room.

Orthopedic surgery expert witnesses are critical in several important aspects of orthopedic litigation including standard of care, causation, and harm. Orthopedic surgery expert witnesses may also determine the etiology, extent, and prognosis of various musculoskeletal conditions, including complications caused by trauma or alleged medical negligence. For example, an orthopedic surgery expert witness may look at the circumstances surrounding a work-related injury in order to determine whether, to a reasonable degree of medical probability, a person’s injury was acute rather than related to a preexisting condition. The same expert might also determine the prognosis of the person’s condition, such as the disability rating or need for future medical care. Orthopedic surgery experts are also commonly called upon to perform Independent Medical Examinations (IME). An IME is an indispensable tool for objectively assessing a person’s physical condition. A thorough and impartial IME allows one to make critical determinations regarding the existence, origin, extent, and prognosis of a specific orthopedic condition.

Litigation against orthopedic surgeons typically stems from poor surgical outcomes resulting in pain or functional loss. This may occur as a result of surgical technique, infection, or other complicating factors. Delayed treatment of “compartment syndrome” (a limb-threatening elevation in extremity pressure) is another area of risk for practicing orthopedists. Since orthopedic surgeons employ a range of highly specialized surgical devices, orthopedic expert witnesses are often called to testify for both plaintiff and defense in product liability cases. Such litigation is increasingly common with many cases gaining national notoriety as class action lawsuits.

Given the complexity and expense of orthopedic surgery litigation, it is imperative to carefully choose an orthopedic surgery expert witness. A top-tier orthopedic surgery expert witness will have Board Certification, full-time clinical practice, and a professorial appointment at a major university medical center. Beyond those requisite steps, be sure to interview your expert witness candidate to assure impartiality, freedom from conflict, and communication skills. The expert should also agree to remain involved with the case throughout all phases of litigation. When all criteria are met, you will have minimized your risk and set the best course for investigating your orthopedic surgery case.

Dr. Bentley is the President and CEO of ELITE MEDICAL EXPERTS. In his full-time clinical practice he is an attending Emergency Physician at Northwest Medical Center in Tucson, Arizona. With over twenty years of clinical experience, he has provided emergency care to over 60,000 patients. He is also the principal physician of Emergency Medicine Litigation Analysts, Inc., where Dr. Bentley has consulted upon countless claims of potential medical negligence for both plaintiff and defense.

March 9, 2015

Internet For Lawyers On Cloud Computing

In Legal Ethics Considerations for Lawyers' Use of Cloud Computing Services , Mark Rosch, Vice President of Marketing for Internet For Lawyers 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. Dictionary.com 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."

Read more.

March 5, 2015

Explosions Expert Witnesses

Explosions expert witnesses may consult on flammable materials, fire & explosion analysis, and natural gas explosions, as well as related matters. Investigators have reported that the cause of an explosion last week in Stafford Township, NJ, was a crack in a gas line. Firefighters, paramedics, and New Jersey Gas employees were injured. The shock wave from the explosion flattened one home and damaged a score more.

Commonly used for heating, natural gas, methane, propane and butane make up the majority of residential gas explosions. After a 127 year old gas main exploded in East Harlem, NY, in 2014, Natural Gas Watch.org wrote that natural gas explosions seem to be occurring with disturbing regularity in the US.

There are more than 5,000 miles of natural gas pipeline beneath the streets, homes and buildings of New York City and according to public records, a significant portion of that underground pipeline is made of aging cast iron that’s prone to leak. Indeed, hundreds of miles of this pipeline are at least 100 years old and some of it even dates back to 1889.

Natural Gas Watch.org reported in 2014:

Legislation cleared the House Wednesday that outlines a process under which utilities would be held accountable for repairing thousands of underground natural gas leaks, with supporters saying the bill could save lives by preventing explosions. Proponents of the bill, long pushed by Marblehead Rep. Lori Ehrlich, said $40 million is wasted each year due to natural gas leaks. Prior to the bill’s passage, Ehrlich ticked of a series of home explosions caused by natural gas leaks, citing growing risks. “These leaks can only get worse,” she said.

March 4, 2015

Business Valuation Experts & BMC Software Ruling

In A Review of BMC Software, Inc. v. Commissioner of Internal Revenue: Should Intercompany Accounts Receivable Be Considered “Debt”? Samuel S. Nicholls of Willamette Management Associates writes:

In the matter of BMC Software, Inc. (“BMC”) v. Commissioner, the U.S. Tax Court (the “Tax Court”) ruled on the definition of “debt” as it relates to intercompany indebtedness between a U.S. tax¬payer and its foreign subsidiary.

At issue in this decision was the BMC accounts receivable owed from its foreign subsidiary, BMC Software European Holding (BSEH). This accounts receivable was created as a result of a transfer pricing settlement between BMC and the Internal Revenue Service (the “Service”) in 2007.

The specific question in the BMC decision was whether or not this accounts receivable increased the company’s related-party indebtedness between October 3, 2004, and March 31, 2006 (the testing period). If it did, then the amount of money that BMC repatriated under the Internal Revenue Code Section 965 tax holiday would be reduced, and BMC would owe additional tax.

That is, if the intercompany accounts receivable were deemed to be debt, then BMC would have over-stated its dividends received deduction (“special dividend”) and it would have to retroactively pay the regular tax on the amount of the overstatement.

Related-party indebtedness was relevant in this decision, because Section 965 does not permit any increase in related-party indebtedness to be included in the amount of funds eligible for the special dividend.

The testing period is relevant because Congress provided that the amount of the Section 965 special dividend deduction would be reduced by any increase in related-party indebtedness during the “testing period.”

The Service took the position that (1) the establishment of the account receivable, resulting from a transfer pricing adjustment in 2007, constituted increased related-party indebtedness, (2) the related-party debt should be applied retroactively to the testing period, and (3) this amount should not be included in the special dividend. BMC disagreed and petitioned the Tax Court for relief.

The Tax Court filed its opinion on September 18, 2013, ruling in favor of the Service. In its opinion, the Tax Court concluded that some of the funds repatriated by BMC under Section 965 wereineligible for the special dividend. This is because those funds included an intercompany accounts receivable that the Tax Court considered to be a form of intercompany debt.

BMC subsequently filed an appeal with the U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”), and the case is currently pending review. The Fifth Circuit’s decision could have broad implications for intercompany transfer pricing issues.

Mr. Nichols is a senior associate with Willamette Management Associates and has performed the following types of valuation and economic analyses: merger and acquisition valuations, business and stock valuations, and fairness opinions.

Mr. Curtis R. Kimball of Willamette Management Associates is an expert witness in business valuation and intellectual property.

Read the entire article here.

March 1, 2015

Pediatric Emergency Medicine Expert Witness

In Myocaritis in Children: A Diagnosis to Consider in the Pediatric Emergency Department, a board certified pediatric emergency medicine expert witness explains that myocarditis, or inflammation of the heart muscle, may result in significant heart malfunction or death. This is a condition that may result in misdiagnosis and is important for the pediatric emergency medicine physician to be familiar with and consider.

In children, the most common reason is due to a viral infection. Other causes include Lyme disease, Rocky Mountain spotted fever, toxic shock syndrome, fungus infections and or parasites.

Since myocarditis in children may mimic other conditions, the diagnosis of myocarditis is challenging. It is a rare condition, with common symptoms that the pediatric emergency medicine provider may encounter with other common conditions.

Consider myocarditis on the differential when a child presents with trouble feeding or tachypnea (breathing fast). Young babies may be difficult to calm and described as fussy. On exam, infants and children may have hypo-perfusion presenting with cool and pale extremities.

Although some children may have more overt signs such as swelling in the face, feet or the legs, general flu-like symptoms may be the only sign of myocarditis.

Myocarditis is a clinical diagnosis and requires a careful history and thorough physical examination. The pediatric emergency medicine doctor may order a chest x-ray that reveals an enlarged heart size or fluid in the lungs. Similarly, an electrocardiogram may reveal abnormal heart electrical activity. Finally, an echocardiogram may reveal increased heart size.

Given that other organs may be affected by myocarditis, it is important to assess kidney and liver function. Also, given the infectious causes, a blood count and tests for infections may also be done.

Myocarditis in babies and children requires admission to an intensive care unit management.

Read more: Pediatric Emergency Medicine Consultants

February 23, 2015

Becoming a Better Digital Forensics Witness Part 1

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

I love to testify—in court, at deposition, in declarations and affidavits—and I even like writing reports about my findings in forensic exams.

I love the challenge—the chance to mix it up with skilled interrogators, defend my opinions and help the decision makers hear what the electronic evidence tells us. There is a compelling human drama being played out in those bits and bytes, and computer forensic examiners are the fortunate few who get to tell the story. It’s our privilege to help the finders of fact understand the digital evidence.

This post is written for computer forensic examiners and outlines ways to become a more effective witness and avoid common pitfalls. But the advice offered applies as well to almost anyone who takes the stand.

It’s difficult for computer forensic examiners to hone their testimonial skills because it’s rare to be interrogated by a lawyer who understands what we are talking about. Most interrogators are working from a script. They know the first question to ask, but not the next or the one after that. Pushed off their path, they’re lost. Computer forensic examiners have it pretty easy on the stand. Computer-generated evidence still enjoys an aura of accuracy and objectivity, and the hyper-technical nature of digital forensics awes and intimidates the uninitiated. But, it won’t always be this way. Sooner or later, computer forensic examiners will square off against interrogators able to skillfully undermine ability and credibility. So, it behooves us to strive to be skilled witnesses.

The Trick to Being a Great Witness
Novice witnesses think there’s a system they can follow to stay out of trouble on cross-examination, but no battle plan survives an encounter with the enemy. There are no “tricks” to testifying, except to prepare carefully, listen to the questions asked, answer the questions asked, stick to what you know and tell the truth. The corollaries are, don’t imagine you can “wing it,” don’t anticipate the question, don’t answer the question you think the examiner meant to ask, don’t overreach your expertise and don’t try to snow the lawyers on technical matters.

It’s All About Preparation
Even brilliant, articulate and honest expert witnesses will perform poorly on the stand when they aren’t asked the right questions in the right way. Lawyers invest too little time preparing expert witnesses to present a compelling direct examination, and expert witnesses worry too much about cross-examination. Without a solid direct examination to lay out the key points, getting through cross-examination unscathed doesn’t count for much. There are many reasons why lawyers don’t spend enough time preparing expert witnesses: Lawyers and experts have demanding schedules, time spent with experts may be expensive and egos on both sides may not admit the need for preparation. Still, preparation for direct examination demands more than scripting a few questions and ad-libbing the rest.

The expert witness must help the lawyer understand what the digital evidence signifies and insure that the lawyer won’t stumble on the key terms and concepts. The lawyer must help the expert understand where the digital evidence fits into the overall theme of the case. Both must craft the flow and choreography of the direct examination, including what exhibits and demonstrative aids will be used and how to adapt when things don’t go according to plan (as when the court excludes an exhibit or demonstrative aid). There is no such thing as an over-prepared expert when it comes to direct examination.

Hypothetical Questions and Hearsay
In U.S. jurisprudence, there are two principal advantages afforded an expert witness. First, an expert witness is permitted to answer hypothetical questions; that is, questions where the interrogator lays out various assumptions and seeks the witness’ opinions based on those assumptions. Second, an expert witness is permitted to rely upon hearsay evidence when it’s the sort of information on which experts in the field customarily rely.

Some cross-examiners take their hypotheticals too far and require you to assume unreasonable facts. In that event, push back. Point out that you can’t express an opinion based on so implausible an assumption. Don’t be reluctant to say, “I saw no evidence to support that assumption.” Be wary of being pushed into offering opinions on hypotheticals incorporating elements outside your expertise and experience.

Just because you can rely upon hearsay doesn’t mean that you should. Unassailable opinions are constructed from reliable evidence. Try not to build your testimony on assumptions that may buckle. Always ask yourself, “Why do I take this to be true?”

Compound Questions
A cross-examiner may pose two questions as one, such that an answer to one sounds like an answer to both. When this happens, the lawyer who handled direct examination should object to the compound question; but, if the lawyer doesn’t object, it’s up to you to be alert and keep the record clear. Seek clarification of the question (e.g., “Are you asking me whether I hashed the images or if the hash values matched?”) or address each part separately (e.g., “Yes, I hashed the images, but the hash values did not match due to damaged sectors on the drive.”).

May I Explain?
Effective cross-examiners use classic techniques to control witnesses. They pose leading questions that suggest the desired reply. They avoid repetition of damaging testimony. They ask only questions to which they already know the answer. And they seek to confine witnesses to “yes” or “no” responses to keep witnesses from explaining their answers. Skilled cross-examiners do this so well, you will be like a horse in harness. But skilled cross-examiners are rare. You are more likely to face cross-examiners who will try to bully you into “yes” or “no” responses to questions that can’t be answered that way.

You have a secret weapon when this happens. You can ask, “May I explain please?” Opposing counsel hate that. They want to scream, “No, just say ‘yes’ or ‘no!’” But, they recognize that if you’ve been candid and cooperative, refusing to let you explain will make them look bad to the judge and jury. Like any secret weapon, it’s not very effective once the secret’s out. So, you can only do this once (or twice). Don’t waste it.


Craig Ball
Attorney and Forensic Technologist
Certified Computer Forensic Examiner
www.ballinyourcourt.com

February 17, 2015

Business Expert Witness On World Economies Part 1

In Are We Nearing a Global Turning Point?, business expert witness Douglas E. Johnston writes:

Several important economic factors appear to be moving unfavorably for the US at the moment, both domestically and abroad, and there are increasing indications that America
may not be able to orchestrate a hoped-for global resurgence on its own. Despite
encouraging signs of domestic recovery, fundamental structural problems persist in the
US economy. The National Debt now exceeds $18 Trillion, the Department of
Agriculture confirms that well over 46 million Americans continue on food stamps, and
key voices have stepped forward asking for a deeper look at several U.S. economic
statistics.

Last week long-time Gallup CEO Jim Clinton very boldly drew attention to the
government’s recent 5.6% unemployment numbers, questioning them as overly
optimistic interpretations of data, and noting on CNBC that the percentage of Americans
holding full-time jobs is now the lowest in 60 years. Former US Asst. Treasury Secretary
Dr. Paul Craig Roberts added more to the unemployment conversation recently when he
calculated that the true US jobless rate may reach nearly 23% after adding back several
categories of workers who have now given up looking for work. Several other media
sources including CBS Radio have reported that as many as a record 92 million
Americans may now be now functionally unemployed.

Adding to the domestic uncertainty, more pressing issues loom for the US internationally.
While the dollar is currently surging in value as a ‘safe haven’ investment, America faces
more than the usual normal number of unsettling issues abroad. From China to Russia to
India to Ukraine to Switzerland to Greece to Iran to Saudi Arabia and the Middle East,
the US may be facing potential developments with both allies and adversaries which
could displace the US from its lead role in international finance. The dollar has ruled
supreme internationally as the global-standard currency for settlement of most
international payments since the 1944 Bretton Woods global economic summit. But the
handwriting is on the wall for a change ahead, especially when considering the
emergence of Russia, India, China and the other BRICS bloc of countries. We should
make no mistake about it, the BRICS countries and many other long-time allies and
friends no longer view the US as unwaveringly as they once did. IMF Managing Director
Christine Lagarde has since 2012 noted several emerging ‘tectonic shifts’ in global
finance. Much groundwork has been laid in recent years by the BRICS toward a
‘tectonic’ realignment of the global currency markets and to de-emphasize the dollar as
the global currency of choice, especially including settlements for oil. The US has
steadily resisted this shift for decades, because allowing the world to bypass the dollar
could have profound implications for US influence in the world, as well as in the daily
lives of Americans as the cost of imported goods rises.

What are these emerging ‘tectonic’ developments and where are the current focal points
which might result in a global currency realignment and a shift in the dollar’s role? Here
are a few of the more notable global shifts as the US might see them:

· China quietly surpassed the US in 2014 as the world’s largest economy (per the
IMF) and it has steadily expanded its global trade plus the influence of the yuan
via scores of currency ‘swaps’ and bi-lateral trade arrangements with virtually
every major country & foreign central bank, plus all major US allies. The possible
displacement of the dollar as the sole global reserve currency could reduce or
even eliminate the huge advantage the US currently holds in funding its debt and
deficits through foreign markets. While the dollar still dominates global trade, the
Chinese have publicly stated their intention to have the yuan adopted as at least an
‘alternate’ reserve currency to replace and/or compete with the dollar. That time
appears now to be approaching even faster.

· Russia is now the world’s largest energy exporting nation. In 2014 Russia and
China signed over $400 Billion in long-term energy and trade pacts outside the
dollar, and China has recently signaled that it will backstop Russia if it needs help
in the face of US-led economic sanctions regarding Ukraine. For decades, this
kind of an economic alliance of China and Russia has been considered almost
unthinkable for the US, and numerous observers including Henry Kissinger have
characterized the emerging Russia-China alliance as one of the most significant
global geopolitical shifts in the past 150 years.

· The US-dominated IMF and World Bank have provided powerful support for US
foreign policy for decades, and yet the US has continued to withhold both new
funding and support for IMF reforms to accommodate the BRICS and others. In
July 2014 the BRICS bloc established its own $100 Billion Development Bank(s)
and other similar institutions to compete with the IMF and World Bank, and to
facilitate non-dollar finance and influence.

· Russia and the other BRICS nations have also been working steadily in recent
years to establish secure communications and wire-transfer networks outside of
the US-dominated and Belgian-based SWIFT system, in order to facilitate
banking and trade outside US influence. The new system is said to have begun its
first operational testing in late 2014, and full operations are expected in 2015.

· US-led economic sanctions against Russia over Ukraine have produced a military
and economic cold/hot war which threatens to deteriorate further, and with far reaching
trade implications. Europeans have so far generally chosen to follow the
US lead, but they have expressed reluctance to do so because: 1) Europe relies on
Russia for up to 25% of its own gas supplies, and 2) the US-led sanctions often
hurt European countries the most as Russia’s regional trade partners. Longtime
US ally Germany remains somewhat ‘in the middle’ as the economic powerhouse
of Europe, and yet some observers now believe German Chancellor Angela
Merkel, who speaks fluent Russian herself, many now be shifting her attention
toward the emerging Russia-China bloc. Highly-influential US-based Foreign
Affairs magazine has highlighted this issue in a key essay in its January-February
2015 issue: ‘Leaving the West Behind: Germany Looks East.’

· Following President Obama’s ‘Asia Re-Balancing’ visit to India in late January,
the Chinese followed with a February 2 summit in Beijing of the foreign ministers
of Russia, India and China to address India’s bid to join the Russia-China security
bloc. This follows India’s announcement in December 2014 of its plans to lease a
second Russian nuclear submarine. There is additional noteworthy data from the
World Gold Council and various central banks and sources indicating that Russia,
India and China (the ‘RICs’) have each steadily continued to amass gold reserves
in recent years. Reuters reports that two-thirds of global gold consumption now
comes from Asia, and newly-launched gold exchanges in Shanghai, Singapore,
Hong Kong and Dubai beginning in late 2014 may serve to shift dominance in
these markets which is currently held by London and New York.

· Iran announced in January 2015, after years of threats, that it has now dropped the
dollar for payments of its oil exports. In decades past, Iran’s many threats have
often been met by the deployment of yet another US aircraft carrier to the Persian
Gulf. Yet now, with the winds of broader global geopolitical change stirring, and
given the added complexity of ongoing negotiations with Iran on nuclear issues, a
real oil pricing currency shift may be at hand. The US has long been concerned
that Iran might be the ‘first domino’ of major Middle East oil-exporting countries
to drop the dollar, and related Arab state defections from the dollar remain a
possibility.

· Saudi Arabia and Yemen experienced important regime changes in early 2015
which could similarly impact US influence in the Middle East. The long-festering
wars and unrest in Iraq, Egypt, Libya, Syria and Lebanon also pose renewed
potential challenges for the dollar and US interests in the region.

· Greece and its very significant $300 Billion external debt, long the outliers in the
20-nation euro bloc, might present Russia and its BRICS allies with a stunning
non-NATO geopolitical opportunity in 2015 by offering the BRICS a stronger
strategic and financial foothold in southern Europe. This emerging scene bears
watching very closely. As Stratfor geopolitical strategist George Friedman and
many others have long noted, European leaders (and more recently the US) have
shared a common interest for centuries in keeping huge and mineral-rich Russia
bottled up geographically and with limited access to warm-water ports. Germanled
euro austerity measures against Greece thus may need to be re-thought as the
long-suffering Greeks consider their emerging opportunity to switch to a new
economic sponsor and/or currency. Greece is a small country but it occupies a
unique strategic position at the crossroads of Europe, Asia and the Middle East.
It could thus also play a major role in the emergence of new roles for the dollar,
euro, and yuan, and former US Fed Chairman Alan Greenspan recently furthered
the discussion by predicting that Greece would ultimately leave the euro bloc.

· Switzerland’s January 2015 decoupling of the Swiss franc from the euro has
underscored emerging problems in the euro currency, and spotlighting the
reluctance of euro powerhouse Germany to arrange additional bailouts for Greece,
as well as for the rapidly-weakening economies of Italy, Spain and Portugal.

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. Early in his career he was named as the
youngest bank president in Texas, and thereafter he established multiple bank offices in
California and Texas. Expanding into Corporate Finance and Mergers & Acquisitions,
he became a ‘Founding Father’ of the largest private company in Los Angeles. As a C Level
executive, Doug has ‘hands-on’ debt and equity finance and documentation
experience with both lenders and investors involving hundreds of companies engaged in
technology, service, real estate, manufacturing, and entertainment across the US as well
as in Europe.

February 13, 2015

Internet For Lawyers CLE Seminars

Since 1999, Internet For Lawyers has provided law firms, corporations, corporate legal departments and local and state Bar Associations around the country with professional and entertaining turn-key CLE programs teaching legal professionals to use the Internet more effectively for business, legal and investigative research.

Company principals, Carole Levitt and Mark Rosch will present the following in-person Continuing Legal Education seminars during February and March. They also offer online quizzes for California Self-Study Continuing Legal Education Credit.

February 26
Cybersleuth's Guide to the Internet
Pennsylvania Bar Institute (PBI)
Philadelphia, PA

March 11
9:00 AM - 3:00 PM
Technology, the Cloud and Your Practice: A Day with Carole Levitt and Mark Rosch Webcast Series

9-10 AM
Power Your Practice with Google "Cloud" Gmail and Calendar Business Apps

10:30-11:30AM
How to Avoid Potential Ethical Traps While Using Social Media

12 Noon-1PM
“No Thanks, I'm Just Browsing” – A Non-Technical Introduction to the Chrome Web Browser

2-3PM
How the Internet Can Benefit Your Litigation Practice: Internet Legal Research on a Budget


Minnesota CLE Webcasts

March 12
Investigative Internet Research: Find It Fast and Free!
Minnesota CLE
Minneapolis Conference Center

About Internet For Lawyers - MCLE Provider

February 8, 2015

New Zoloft MDL Pharmaceutical Expert Witness

Zoloft MDL presiding Judge Cynthia M. Rufe, E.D. Pa., granted the plaintiffs motion to present a new pharmaceutical expert witness. Hundreds of Zoloft birth defect lawsuits have been filed. The antidepressant manufactured by Pfizer is tied to an increased risk of defects like persistent pulmonary hypertension in infants. Other serious side effects include seizures, heart defects, autism, and malformations of the skull or brain.

U.S. District Court, Eastern District of Pennsylvania website: About MDL 2342.
This Multidistrict Litigation ("MDL") was created by Order of the United States Judicial Panel on Multidistrict Litigation ("MDL Panel") on April 17, 2012. The typical case involves claims by a plaintiff from anywhere in the United States against defendant Pfizer, Inc., and may name other defendants as well.

In its April 17, 2012 Order, the MDL Panel found that the actions in this MDL "involve common questions of fact, and that centralization in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation."

The MDL Panel noted that the actions "involve allegations that Zoloft, a prescription medication approved for the treatment of depression and other ailments, causes birth defects in children when their mothers ingest the drug while pregnant." Pfizer and the other defendants deny these allegations. The Panel further found that "[c]entralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary."

Official contacts are as follows:

Presiding Judge: The Honorable Cynthia M. Rufe
Secretary/Civil Deputy: Velma T. White
Courtroom Deputy: Erica Pratt
United States District Court
Eastern District of Pennsylvania
Courtroom 12A
James A. Byrne U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
Telephone: (267) 299-7490
Fax: (267) 299-5077

Plaintiffs' Liaison Counsel: Stephen A. Corr, Esq.
Stark & Stark, P.C.
777 Township Line Road
Suite 120
Yardley, PA 19067-5559
Telephone: (267) 759-9684
Fax: (267) 907-9659
E-mail: SCorr@Stark-Stark.com

Defendants' Lead and Liaison Counsel: Mark S. Cheffo, Esq.
Quinn, Emanuel, Urquhart & Sullivan, LLP
51 Madison Ave.
22nd Floor
New York, NY 10010
Telephone: (212) 849-7000

Plaintiffs' Steering Committee Co-Lead Counsel:
Dianne M. Nast, Esq.
NastLaw LLC
1101 Market Street
Suite 2801
Philadelphia, PA 19107
Telephone: (215) 923-9300
Fax: (215) 923-9302

Mark P. Robinson, Jr., Esq.
Robinson Calcagnie Robinson Shapiro Davis, Inc.
19 Corporate Plaza Drive
Newport Beach, CA 92660
Telephone: (949) 720-1288
Fax: (949) 720-1292