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.

September 13, 2014

Pathology Expert Witness On Learning From Other Experts

In Expert Mistakes, pathology expert witness Dr. Judy Melinek discusses learning from other experts:

"An expert is someone who knows some of the worst mistakes which can be made in a very narrow field."
Niels Bohr

When I review others' reports and find mistakes I always try to learn from them because it is always easier to learn from others' mistakes than to make and learn from your own.

No one is immune to mistakes. It is what makes us human. The question is how do we, as scientists and experts, deal with our errors? Do we ignore them? Deny them? Or do we delve into the reasons why they occurred and make a change? And can we accept that by making a change in policy or procedure we will be opening ourselves up to future attacks by attorneys who will use the change as a basis to invalidate our previous opinions?

What are some of the worst mistakes? The worst I've seen are the result of arrogance. As an expert and legal consultant one needs to be confident and project that confidence when testifying. But knowing the facts of your case and showing proficiency in analyzing and conveying those facts is different from insulting or tearing down an opposing expert, criticizing the person instead of their opinion (ad-hominem attacks). I've been on the receiving end of those with opposing counsel making fun of me for having gone to Harvard or for my dress ("fancy"). Generally I know that if they are attacking me personally it is because they don't know how to attack me based on the facts of the case. I also know that the more obnoxious they get the more they will alienate the decision makers - the jury.

I have seen world-renowned experts, confronted with inconsistencies between their previous and current testimony, or between their testimony and a recently published article get defensive and even aggressive. They respond to legitimate questions with bluster and arrogance. Nothing turns off a jury more. The best way to deal with a direct attack is to address the specific issues at hand and simplify it for the jury. Explain to them why the case the attorney is asking about is different from the current case and how interpretations in science can vary based on these crucial differences. By the time the expert is done explaining, the jury will have either forgotten the attorney's challenge or gotten so wrapped up in the explanation of the facts of the current case that they will be right back along agreeing with the expert.

But how does an expert learn to keep her ego in check? The best way is to hang around people who know a lot more than you do. By teaching residents and medical students and working alongside staff in a university setting you are constantly barraged with questions that force you to challenge your assumptions and stay up on the scientific advances that drive the peer-reviewed medical literature. Take challenging consult cases: by sparring with attorneys on high-profile cases you are going to be confronted with sharp criticism and you'll find that you can't just rely on your experience and training - you need to stay current and sharp. And finally, go to professional meetings. Nothing humbles me more than attending an AAFS or NAME meeting, and sitting in lectures about the cutting-edge research others are conducting, or the challenging cases that others have successfully investigated. I can't sit for more than 10 minutes before having that "shoulda coulda woulda" feeling about some of my own cases. Yet at the same time, when I leave the conferences, I feel invigorated. Forensic science can be incredibly isolating, especially if you are the only doctor in a small rural Coroner's office. Lunching and dining with colleagues makes you realize that there is camaraderie and support; that we may not always agree on the best way to interpret an injury, or certify a death, but we can come together, break bread and do what scientists do best: collaborate.


Dr. Melinek is a American Board of Pathology board-certified forensic pathologist practicing forensic medicine in San Francisco, California as well as an Assistant Clinical Professor of Pathology at the UCSF Medical Center.

September 11, 2014

Security Management Expert Witness On Hospital Security Programs

In Sustaining Hospital Security Programs in an Environment of Decreasing Reimbursables & Increasing Demand for Services, security management expert witness William H. Nesbitt, CPP, writes that “many hospitals are facing a decrease in reimbursables, and sometimes, in an environment of increasing demand. When budgets get tight, unfortunately, security budgets become a target for belt tightening, sometimes at the expense on increasing liability. There are practical solutions to these challenges, but these solutions must be situationally determined because security is a situational discipline.”

The most logical first step is an objective assessment of your security program. Every security program is unique and should be driven by need. Security is a situational discipline which means that no two security programs are alike, nor should they be. We frequently find relatively good security programs that are none-the less inefficient and lacking in cost-effectiveness. The goal should be to do more, with less. The security assessment becomes the foundational basis for all that follows.

We believe there are two primary opportunities for cost savings for most hospital security programs, along with secondary options to further reduce costs. First, the application of CPTED (Crime Prevention Thought Environmental Design) and the application of technology, such as smart video with outsource monitoring. Applying CPTED strategies helps to ensure that the security program is truly synergistic and supported by all employees. CPTED has been around for many years, but not taken advantage. However the attack of the Alfred P. Murrah Federal Building in 1995 and the 9/11 attack on the World Trade Center caused security professional to look a broader based security strategies. As a result, CPTED principals are more in play than ever before.

Additionally, networked based security systems, especially video have had a substantial favorable impact on security budgets. Second, is the application of emerging technology such as smart video. In recent years technology has gotten better, and at the same time, less costly.
Clearly the security needs of hospitals have evolved since 1755, and continue to evolve to this day. Several years ago we had the privilege of working with Pennsylvania Hospital, one of the most unique challenges and most gratifying experiences we have ever encountered.
In recent years the outsourcing of security management has become an emerging trend. However, hospitals have outsourced departmental management for years for departments such as dietary, housekeeping, pharmacy, and facilities, to name a few. We believe that when it comes to outsourcing security management, the providing contractor should not have any conflicts of interest such as being a contract guard service provider.

Bill Nesbitt, who is a Board Certified Protection Professional (CPP) and the President of Security Management Services International, Inc., has been providing Security Litigation Support Services as a Security Expert Witness to law firms across the United States for more than 35 years.

September 8, 2014

Internet Legal Research on a Budget Seminar Los Angeles Law Library

Carole Levitt and Judy Davis, co-authors of Internet Legal Research on a Budget (ABA 2014) and Mark Rosch, co-author of The Cybersleuth’s Guide to the Internet (IFL Press 2014) present Internet Legal Research on a Budget on Saturday, September 13th, 10 am-12 pm.

Are you an attorney who didn't pay enough attention in your first year Legal Research class and now realize you should have? Or do you know all about the Internet but want to learn how to use new legal and investigative research sites that are free and low-cost (and even established sites that you have yet to try out)? Or, did you attend law school before computers existed, much less the Internet? Then this seminar is for you!

In partnership with Internet for Lawyers this class will provide instruction and tips from recognized Internet research authorities: Carole Levitt and Judy Davis, co-authors of Internet Legal Research on a Budget (ABA 2014) and Mark Rosch, co-author ofThe Cybersleuth’s Guide to the Internet (IFL Press 2014).

This class will be videotaped. By registering for this class you consent to the use of the videotape by the presenters for future educational or commercial purposes.

Class Covers:

• Quickly find and effectively use reliable free (or low-cost) legal and investigative resources online
• Become less reliant on pay resources (but learn when they are the better option)
• Search expensive databases for free to gather background and investigative information
• Locate missing parties, witnesses, and other people
• Use databases that you might already have free access to (Casemaker and Fastcase)
• Become an expert searcher using Google Scholar, Congress.gov, FDsys, PACER, public records, and more


Two hours general MCLE credit

Fee:
$40 for the class (non-refundable payment reserves spot)
$99 for the class AND a discounted copy of Internet Legal Research on a Budget (the book retails at $89.95 but is available with the seminar for an extra $59)

When
Sat Sep 13, 2014 5pm – 7pm GMT (no daylight saving)
Where
LA Law Library, 301 W 1st St, Los Angeles, CA, United States (map)
More info at Internet For Lawyers and Los Angeles Law Library.

September 7, 2014

Forensic Pathology Expert Witness On Death Investigations

In Cutting Corners, forensic pathology expert witness Dr. Judy Melinek answers the question "Is it common for coroners or forensic pathologists to cut corners in a death investigation if a case does not look like foul play was involved?"

Several visitors to this blog have asked me this question recently, as part of their research into forensic science. Usually those inquiring have had direct contact with a Medical Examiner's or Coroner's Office - and did not find that institution particularly forthcoming. Office policies require death investigators to be careful about divulging information on open cases, and sometimes cases can be "pending" for several months while the pathologist awaits toxicology reports, microscopic slides, scene investigation or incident reports. This can be frustrating and even infuriating to the deceased's family members. They are the ones who have to plan the funeral, and answer inquires while dealing with their own feelings of grief and even guilt about the death while the case is still "pending additional examination." The law allows you to bury a body with a death certificate that says "pending" under "cause of death," but that is cold comfort to the family which has to tackle the inevitable question - "What happened?" - over and over again. A death certificate that says "Hanging" and "Suicide" may not be welcome, but it is an answer.

Coroners and forensic pathologists are two different groups of people. Coroner's deputies are death investigators (often part of a law enforcement agency, like a sheriff's office) while forensic pathologists are the doctors who do the autopsies. Both can "cut corners," yes - but in different ways. A Coroner's deputy might cut corners by not visiting the scene; by not examining the scene thoroughly, either in order to save time or because they are tired (many death investigations are at ungodly hours); by trusting the reports of the people at the scene about what happened without confirming whether those reports are accurate. The death investigation doesn't end when the deputy returns to the office and writes up the case. Frequently they have to complete their investigation, or ask others to, by getting medical records, police reports or questioning other witnesses who were not at the scene when they picked up the body.

A forensic pathologist might "cut corners" by doing an incomplete or partial autopsy; or by rushing through the case and by not following up with police or Coroner's investigators when the story being given does not match up with the injury on the body or the presumed cause of death. This takes time. Coroner's deputies get paid per shift and FP's in a coroner system get paid per case. There is no financial incentive for the doctor or the deputy to invest extra time in investigating a case. Many offices are understaffed due to budget shortfalls, so there is always plenty of work and not enough people to do it. A deputy has to be efficient with his/her time; so if a case looks like something routine, such as an overdose or a suicide, you might see them cut corners in the interest of working speed.

Yet speculation frequently follows an overdose. Generally, people who use drugs and alcohol are on the margins of society, hang out with unsavory or unreliable "friends," some of whom may have criminal pasts. This fuels funeral-parlor rumors that foul play was involved when the person dies of an overdose. Generally, the only way the police or coroner can confirm that foul play was not involved is with a thorough death investigation. But the investigative and autopsy findings also have to be articulated to the family. Coroner's staff are not necessarily medically trained and may not be effective communicators, so families might seek out other sources for answers. That other source is sometimes me - and I am always glad to serve as a consultant, but only after asking the person calling whether they aired their concerns with the Coroner's office or with the police. I also ask whether the family member had spoken to the original pathologist who did the autopsy. Frequently they have not. Sometimes if they go back and speak to those people who were directly involved with the death investigation, they will find out that the investigation was actually more thorough than they initially thought, or was not completely documented in the limited materials that were initially released to them.

Frequently I hear about families finding out about other peoples' suspicions at the time of the funeral. Unless the people fueling the speculation have direct knowledge of what happened, I would be cautious about putting too much faith in rumors. Family and friends often invent or exaggerate the importance of certain events in order to make themselves or others feel better about a death. I have investigated cases that were clear-cut suicides, where the deceased even left a suicide note, the family was understanding and seemed at peace, but then speculation at the funeral made them doubt the coroner's findings and suspect murder by an estranged lover or the roommate who found the body. Denial in the face of a death is a powerful (and expected) reaction - but entrenching that denial by piling doubt upon doubt is harmful to the grieving and healing process. I spend many hours counseling these families and I am grateful for my role in helping them find closure, and while I understand why well-meaning people can sometimes unintentionally cause more grief, it still pains me to watch.

What can be done about this? Well, if you are attending a funeral and have no idea why the person died, don't ask the family "what happened?" You'll find out soon enough. I love the Jewish tradition at a shiva (the equivalent of a wake) to bring food and not speak unless you are spoken to. When my father died the sustenance was appreciated and I was glad not to have to talk to anyone. If you feel really sad and want to share that with the bereaved you can always go with "I'm sorry for your loss," though I personally prefer sharing a happy story about something the deceased did that meant a lot to you or made you smile. That will have resonance and truly give comfort. If you are a family member and have been told things that disturb you about the circumstances surrounding the death of a loved one and are starting to have concerns, start by calling the officer who gave you their card at the death scene or informed you of the death. Tell them what others are saying, and ask them to help you have some closure. They may refer you to the forensic pathologist who did the autopsy, or maybe they will just reassure you that a thorough investigation was already done. If you don't get the answers you need, you can always ask to speak to their supervisor or to the pathologist yourself. In most cases, you will eventually be able to find someone to answer your questions, but please understand that death investigations take time. Just because you haven't heard back from the Coroner's office doesn't mean they have forgotten about you or about the case. The doctor may be waiting for the lab results before proceeding further. The Deputy Coroner may have received no replies when calling people to follow up on your concerns. Find out who the lead investigator is on the case, and what their hours are. If you call the office once every two to three weeks during their shift and always ask to speak to the same person, you will be able to get a progress report on what is going on with the case. I hope this helps you find closure.

Dr. Melinek is a American Board of Pathology board-certified forensic pathologist practicing forensic medicine in San Francisco, California as well as an Assistant Clinical Professor of Pathology at the UCSF Medical Center.

September 2, 2014

Chiropractic Expert Witness On Standard Of Care Part 2

In Defining the Chiropractic Standard Of Care, chiropractic expert witness Richard K. Skala, D.C., writes:

IS THERE A LEGAL DEFINITION OF THE CHIROPRACTIC STANDARD OF CARE?

Based on the definitions above, as well as my medical legal experience, the chiropractic standard of care can be summed up as follows:

"What a prudent, competent state licensed chiropractic physician in the same general region (state) would do under the same or reasonably similar situations or circumstances."

HOW IS THE CHIROPRACTIC STANDARD OF CARE DETERMINED?

Like all health care professions, chiropractic physicians are trained in schools/colleges of chiropractic (43 worldwide)*. In the USA, each of the 17 chiropractic colleges are accredited based on a number of criteria, not the least of which is their respective basic science, and clinical science curriculum. Within these curriculum is contained the foundation for the Chiropractic Standard of Care. In addition to college curricula, the chiropractic profession is supported by established scientific, empirical, and clinical evidence. Over the course of time, a consensus of opinions and conclusions regarding things such as the scope of use of various forms of chiropractic treatment, where these methods are taught, and the clinical utility and proper application for any specific condition(s) for which the treatment is applied are all factors of consideration. In certain cases or jurisdictions Case Law may prove relevant in defining specific aspects of the standard of care on a legal basis.

REAL WORLD OCCURENCES

So what are the more common lapses in standard of care that end up in a law suit or board compliance action? (This list is by no means complete.)

1. Lack of informed consent given to the patient signed by the patient
2. Adverse consequence resulting from treatment
3. Negative side effects of the treatment employed
4. Misdiagnosis
5. Failure to diagnose
6. Failure to reexamine
7. Failure to refer
8. Failure to keep adequate records
9. Altering patient records

SO WAS JUSTICE POTTER CORRECT?

In any case involving breach of “Standard of Care” there are going to be advocates on either side of the question diligently working to advocate their side of the argument. Each case will largely depend on the condition of the chiropractic records, and the impressions, opinions and conclusions of the experts who review those records and eventually give testimony. This article is by no means a treatise on the subject of the “Chiropractic Standard of Care.” It does set forth my experience and the general concepts relating to questions that arise over the “Chiropractic Standard of Care.” Each and every case is unique with its own set of facts. At the end of the day, even with the availability of the outline above, and others like it, the best I can say is not too far afield from Justice Potter (and I in no way compare my intelligence to his intelligence and wisdom when I say this): “I shall not today attempt further to define the kinds of material I understand to be embraced within the medical records reviewed and perhaps I could never succeed in intelligibly doing so. But I know what breach of the Chiropractic Standard of Care looks like when I see it.”

* http://en.wikipedia.org/wiki/List_of_chiropractic_schools

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. www.drskalachiroexpert.com.


August 30, 2014

American Institute of CPAs Expert Witness Skills Workshop

Expert Witness Skills Workshop offered by The American Institute of CPAs

Do you have the confidence and communications skills necessary to serve as an effective expert witness under pressure? Are you often chosen to serve as an expert witness by outside clients? How do you communicate to jurors today that are more technical and have different expectations of testimony and witnesses? Limited to just 36 participants, the AICPA Expert Skills Workshop answers all of these questions and covers the expert witness process from qualifications to depositions to mock trial. In three intensive days, you will:

• experience a real-life courtroom atmosphere

• present to practicing experts and attorneys

• be personally critiqued

• benefit from hands-on training

• testify in a mock trial

This blend of classroom lectures and instant personal feedback will provide the key framework for developing the “real life” skills you need to succeed as an expert witness. Ensure your spot at this interactive workshop, and register today!

WHO SHOULD ATTEND
• Practitioners with minimal to no testifying experience who need a safe environment to develop their skills
• Experienced testifying experts who wish to refine and advance their skills

Date: Sep 11 - Sep 13, 2014
Location: Hotel Palomar
Washington D.C., DC
Recommended CPE Credit: 28
More info.

August 27, 2014

Arbitration & Mediation Expert Witnesses

Arbitration and mediation expert witnesses may consult on American Arbitration Association rules, binding arbitration, nonbinding arbitration, and alternative dispute resolution. On June 16, 2014, the American Arbitration Association released new rules on construction disputes.

NEW AMERICAN ARBITRATION ASSOCIATION SUPPLEMENTARY RULES ENABLE PREDICTABLE TIME-AND-COST CONSTRUCTION ARBITRATION June 16, 2014 Parties involved in construction disputes now have the option of selecting supplementary rules that will limit the cost and duration of their arbitration proceedings. The new supplementary rules developed by the American Arbitration Association (AAA®) took effect on June 15, 2014. Working with its National Construction Dispute Resolution Committee (NCDRC), the AAA created new Supplementary Rules for Fixed Time and Cost Construction Arbitration that will allow parties to calculate the maximum time to complete the arbitration, the number of hearing days, and the arbitrator costs. For example, for cases in the $250,000 to $500,000 range, the rules prescribe a maximum of 180 days from filing to award, with no more than three hearing days. Arbitrator compensation for hearing days and study time (limited to 12 hours) is capped at $275 an hour. Administrative fees to the AAA are fixed at $5,000.

“Parties involved in certain construction dispute cases now can be more certain about the time and cost associated with their arbitration,” says Rodney Toben, AAA Vice President, Construction Division. “We believe this solution responds to many concerns that arbitration costs in terms of dollars and time may have grown unpredictable. We see the new supplementary rules as innovative, reasonable, and clearly defined so that all parties benefit,” Mr. Toben said.

The supplementary rules also encourage client participation by requiring that each party representative provide contact information for a “designated employee,” such as in-house counsel or senior level executive, and require that the AAA and/or arbitrator include such designated employees on all communications related to the arbitration.
“We’ve put significant thought into these rules with input from some of the best construction dispute resolution experts from around the country and expect that they will be an attractive option to parties in many cases,” Mr. Toben concluded.

August 25, 2014

Forensic Accounting Expert Witness On Asset Misappropriation

In Preventing Damaging Effects of Asset Misappropriationforensic accounting expert witness Alan D. Lasko and accountant Bradley Kaye write:

Honest mistakes can occur that resemble fraud. One company may lose the receipt of the transaction, but the other company involved can provide the necessary information to prove that the expense was legitimate. This mistake would be uncovered by an external audit performed under Statements of Auditing Standards No. 99, Consideration of Fraud in a Financial Statement Audit; however, in instances of actual fraud, standard financial audit procedures may not prove any wrongdoing without a confession or a report from another employee. Instances such as this may have a company utilizing the use of a forensic accountant, since a small company will not have an internal audit staff.

A forensic accountant may also be able to infer that fraud has occurred based on his experience with repeated transactions of this type. These types of suspicious transactions should be checked with scrutiny to ensure legitimacy. A forensic accountant can for example, analyze the cash flows and compare different sets of statistics to determine whether fraud may have been committed.

If the forensic accountant's investigation determines that there is significant asset misappropriation, legal action could be taken to return the losses. As the accusation of fraud could have significant conse-quences for both the individual and the company, it is imperative that the forensic accountant be able to provide expert witness testimony for the pending deposition and/or trial. Though asset misappropriation cannot be completely eliminated, there are certain steps which any company can take to mitigate the damaging effects that it could create. Some of these steps include:

• Strong internal controls
• A competent, relatively independent external or internal audit function
• An active and responsible audit committee
• A history of conservative accounting practices
• Stable management
• An overall corporate emphasis on ethical behavior
• Absence of new external pressures on management
• Notify all employees about the con-sequences of asset misappropriation
• Make available employee guidelines about fraud, including reporting any suspected fraud and the necessity to keep records of all transactions
• Encourage honest and high ethical standards throughout the company
• Have random investigations performed by a forensic accountant to ensure all levels of management are being honest

Asset misappropriation is a problem that will not go away on its own. Constant evaluations need to be performed from both internal and external perspectives through-out all levels of a company. This will help ensure that the effects caused by asset misappropriation do not become too damaging to a company and its investors. It will also send a message to the employees that management's philosophy is that this type of activity is not acceptable.

Alan D. Lasko & Associates, P.C.

August 23, 2014

Documents & Handwriting Expert Witness On Handwriting Analysis

In Forensic Handwriting Analysis – Expert Introduction to Handwriting Analysis, documents and handwriting expert witness Mark Songer writes that “the science of handwriting analysis is based on the premise that no two individuals can produce exactly the same writing and that an individual cannot exactly reproduce his own handwriting, otherwise known as variation. Variations are natural deviations that occur in a person’s handwriting.”

The first step is to analyze the known writing sample and the unknown writing sample for distinctive characteristics. The examiner looks for unique qualities such as letters and word spacing, letter and word slant, size and proportional-ity of letters, unusual formations of letters, flourishes, and other individual attributes.

2) Comparison
The next step is to differentiate elements from the known sample to those of the unknown sample. The examiner considers spelling, grammar, punctuation, and phraseology as well.

3) Evaluation
The final step is to evaluate the similarities in the known and unknown samples. While differences are a good indication of a non-match, no single similar characteristic, no matter how unique, can determine a match. Therefore, all likenesses must be considered. The examiner must make a judgment in each case by evaluating the totality of the documents.

Mark Songer is a Forensic Criminologist and Handwriting Expert. He provides investigations, reports, and testimony towards the resolution of matters involving disputed documents or signatures, including: wills, checks, contracts, deeds, account ledgers, medical records, and autograph authentication.

August 19, 2014

Child Abuse Expert Witnesses Part 2

Child abuse expert witnesses may advise regarding child abuse and neglect, including the physical, emotional, or sexual mistreatment of children. On its website, the Child Welfare Information Gateway describes the process of proving child maltreatment in court. CWIG is a service of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services.

Proving Child Maltreatment in Court... Relevant and Material Evidence To be usable in court, evidence must be material and relevant. Evidence is material when it has a logical connection to any of the issues that need to be proved in the case. It should be clear from a particular State's law exactly what must be proved. For example, whether a parent cheated on his/her income taxes would be immaterial to any issue in a child abuse case. Evidence will be relevant when it increases the likelihood that a particular fact in question occurred. For example, the fact that, prior to the incident in question, the parent failed to provide his/her child with adequate medical care is irrelevant to the question of whether he/she molested that child. Evidence must also be competent. This means that the evidence does not violate any rules of evidence and is not more prejudicial (unfairly harmful or beneficial) than it is probative (tending to prove or disprove) on any given issue.

The Hearsay Rule
Although relevant evidence is generally admissible, some relevant evidence that is thought to be unreliable will be excluded from judicial consideration. One such evidentiary rule is the rule against hearsay. Hearsay is a statement made outside the courtroom that is presented in court by someone other than the original speaker to prove the truth of the original speaker's statement. So, the hearsay rule sometimes prevents a witness from testifying about what another person said. In other situations, because the purpose of repeating the statement in court is not to prove the truth of the statement, hearsay may be admissible.

For instance, a witness would not be permitted to testify that he/she heard another person say "I am the President," to show that that person was, in fact, the President. Such testimony could be used, however, to show that the speaker was mentally unstable. In a child abuse case, it is not uncommon for a witness to be told by the child's teacher, neighbor, or relative that "the child gets beaten up at home all the time." However, because of the hearsay rule, that witness may not testify that "Mr. X told me that the child gets beaten up at home all the time," to prove the abuse. If Mr. X has something to say about the child's home life, the judge will want to hear directly from Mr. X, so that Mr. X can be questioned fully, cross-examined, and observed on the witness stand.

There are a variety of exceptions to the hearsay rule which permit the use of some hearsay in court. The underlying reason for these exceptions is that some hearsay statements, when made under certain circumstances that suggest that they are especially trustworthy, are reliable enough to be used in court. The rule against hearsay is tricky, and sometimes lawyers and judges have difficulty applying it correctly.

The following are among the hearsay exceptions most commonly used in child abuse and neglect cases.

Admissions of a Party
When a person accused of some type of wrongful conduct makes an out-of-court admission, it may be testified to by another under an exception to the hearsay rule. For example, an allegedly abusive parent might confess to an investigating caseworker: "I know I hit her too hard but I won't do it again." Although the parent may deny in court that he/she ever made such a statement, the caseworker would be permitted to recount it under this hearsay exception. The reason for this exception is that an admission is considered reliable hearsay, since an alleged wrongdoer (for example, an abusive parent) has nothing to gain from making up such a damaging statement. In addition, the parent probably would not say something contrary to his/her own interests if it were not true.

Excited Utterances
An out-of-court statement that is made spontaneously under extreme emotional excitement is also admissible as an exception to the hearsay rule. The excited utterance is viewed as trustworthy because the speaker's excitement is thought to prevent him/her from reflecting long enough to fabricate a story. For example, in a child abuse case, courts will usually look at the length of time between the startling event and the child's statement when deciding whether it is an excited utterance. However, the time lapse alone is not determinative; it is just one factor among many that the court can consider.

Some States apply a more relaxed standard for admitting excited utterances when they are made by children. Very young children, particularly if they are victims of sexual assault, may be found to remain under the influence of the assault for an extended period of time.72 Thus, for example, the statement of a 4-year-old made several hours after he/she was raped may be considered sufficiently reliable to be admitted as an excited utterance, given the child's very young age, the degree of trauma to which he/she was exposed, and the level of excitement under which he/she made his/her statement. However, a court might find that the same statement, made by an adult rape victim, does not qualify as an excited utterance, since an adult (or even an older child) might be capable of reflecting on and fabricating a story during a time lapse of that length. Even when similar statements are made by children of similar ages and under similar circumstances, courts in different States vary widely as to what they will consider an excited utterance by a child.

August 16, 2014

Corporate Strategy Expert Witness On Marketing Research

In Using Marketing, Business & Competitive Research to Win Cases, business and corporate strategy expert witness Don E. Smith, President, American Consulting Group, Inc., writes that marketing research is a powerful tool that helps lawyers win cases.

Many market research expert witnesses have an undergraduate degree in their specialty (engineering, business, marketing) and an MBA or PhD. They average over twenty years of business experience. Unfortunately, some lawyers do not recognize the value of marketing research...and put their cases at risk. For example, many lawyers bring in an expert to express an opinion based on his/her experiences. In many cases, this experience is narrow; the expert’s testimony is weak. With effective research, numerous facts from a range of sources provide a far more convincing argument.

Advertising effectiveness
Market share
Agent performance
Market size & growth
Best effort evaluation
New product opportunity
Competition
Pricing
Competitive analysis
Profit loss
Dealer performance
Sales loss
Distributor performance
Sales performance
Effectiveness of programs

Strategy
The keys to the selection and use of marketing research professionals include:
1. Define the hypothesis and the information required to win the case. This
guides you in the selection of your researcher and keeps the research
focused and affordable.

2. Define key words that define the background and experience you
require from your researcher. Such finetuning is now possible through
the use of ExpertLaw.com’s search capability.

3. Use researchers with extensive (a) Business experience and (b) Expert
witness experience. Unfortunately, many market researchers are (a)
Academically strong but do not have in-depth experience in line
management of a business or (b) Not comfortable or practiced in public
speaking and are not effective during the stress of a deposition or trial.

4. One of the strengths of market researchers is attention to detail. This
Can also be a weakness. An experienced researcher recognizes when
details are not required; this saves both time and money.

5. Secure several research-in-progress verbal reports. The information will
provide you with valuable insight to the case and your strategy. It also
helps focus the researcher.