May 1, 2015

The Value Of Economic Expert Witnesses

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

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

When is an economic expert needed?

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

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

Read more here.

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

April 28, 2015

Computer Security Expert Witness On Cyberstalking Part 1(b)

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

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

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

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

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

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

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

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

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

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

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

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

April 26, 2015

Legal Ethics Considerations for Lawyers' Use of Cloud Computing Services

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

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

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

Cloud computing and "Software as a Service" (SaaS) are two terms used to describe similar services. They allow you to access software, or store files, on computers that are not at your physical location or even in your physical control. 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."

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

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

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

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


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

April 18, 2015

Gasoline Explosion Expert Witnesses

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

http://www.cvtips.com/ writes:

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

April 16, 2015

Becoming a Better Digital Forensics Witness Part 2

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

Becoming a Better Digital Forensics Witness

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

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

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

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

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

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

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

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

April 12, 2015

Undue Influence Expert Witness On Making Bequests Part 2

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

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

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

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

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

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

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

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


April 6, 2015

Computer Security Expert Witness On Cyberstalking Part 1

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

To listen to, read, or watch the news, it is clear that there is broad misunderstanding about the right to free speech. It is not the freedom to say anything to anyone anywhere, but rather a prohibition to keep the government from denying us the right to express ourselves. The Bill of Rights asserts that we have certain freedoms simply by dint of being born human beings.

We treasure our freedoms and freedom of expression or speech is one of the most sacred. Having this right allows us to speak truth to power and to satirize fools. In fact, one of the earliest forms of protected speech may have been the Celtic bards who worked for tribal kings, satirizing poor (or opposing) rulers, but immune from retribution under Brehon law many hundreds of years ago, or even thousands of years under European Celtic tradition.

In many cases throughout history however, speaking freely has led to harassment, imprisonment and even the death of the speaker. Such events have given rise also to the protection of anonymous speech. Indeed, anonymous expression has been integral to the history and emergence of the United States itself. Although the Supreme Court has only come down firmly on the side of anonymity in recent decades, the Federalist Papers, penned anonymously at the time by Founders of our Constitution, may have only been able to bring these ideas to the public without revealing true identities of the Papers’ authors: Alexander Hamilton, James Madison, and John Jay.

As it turns out, free expression also gives rise to less noble speech that many would see as offensive, vile, despicable and dangerous but would still be protected. So we have learned to draw lines based in large part on whether or not there is harm. In general, you’re free to express yourself insofar as said expression does not hurt other people or break other laws.

But then, satire going back to the ancients was itself designed to hurt people – to topple kings from their high positions. So again, we find ourselves drawing lines within lines to distinguish the threshold level of harm.

In the USA the right to free expression is enshrined in, and guaranteed by, the First Amendment of the U.S. Constitution. The 1st Amendment is quite succinct and reads in full:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

This has come to be understood and adjudged to mean that the government can’t keep you from saying your piece, no matter how much the government, or anyone else might disagree. This applies to all government in the U.S. – Federal, State, local entities and public officials of those public entities. You are free to speak in “the Public Square.” Note that the concept of the Public Square applies only to governmental entities, property and officials. It does not apply to private or commercial property. Property owners or business owners can prohibit you from saying certain things, or from saying anything at all on or within their own property, business, or broadcasts unless it is otherwise allowed.

Also note that some broadcasts are in a gray or hybrid area. It is often asserted that the airwaves belong to the People. Corporations and private entities may use specific frequencies through the purchase of long-term, but still temporary licenses, which are sold and/or granted by the government. More on this in a later article in this series.

What kinds of speech or expression are not protected?

There are a few types of expression that are not protected and may be considered illegal by the government.

Among these are obscenity – speech which appeals to the "prurient" interest in sex, is patently offensive by community standards, and lacks literary, scientific, or artistic value. One may have noticed that pornography nonetheless is prevalent and easily accessible in print, film, and electronically. This is because the courts hold a very narrow interpretation of what can be found to be obscene and usually finds in favor of free expression - even if it is clearly pornography - over other interests opposed to pornography.

However, child pornography is not protected and is in fact, a Federal crime, likely to get the offender years in prison.

Incitement – often spoken of as “inciting to riot” - is speech that is not protected if it advocates for generating and is likely to produce 'imminent lawless action.' Again, the court tends to rule narrowly in such cases. I can think of many a 60’s protest song that in retrospect appears slightly shocking in its urging to violent revolution, but remained legal.

Fighting words – speech that is personally abusive to an individual and likely to induce physical retaliation (i.e., start a fight) is not protected.

Defamation, or libel, is not protected. These are intentionally false statements spoken or written in public that cause injury to an individual. “Joe Smith eats babies and so should not be allowed to work in the day care center,” might be an extreme example. The speaker could be sued in civil court by the injured party.

Knowingly lying in court, or perjury, is not protected and not legal.

Extortion of money or property from someone through the use of fear or threats is unprotected and illegal.

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

April 4, 2015

Expert Witness Marketing Consultant on Experts As Authors

In Publicity and Credibility Through Writing, expert witness marketing consultant Rosalie Hamilton offers her thoughts on expert witnesses as authors:

When your expertise is publicized in articles and books, it does not look like advertising, it does not feel like advertising, but, delightfully, it works like advertising. Publicity is, in fact, the best promotional avenue after networking. Even better - it is usually free.

Appearing in publications as a writer confers credibility and authority upon the author. Your profession may even demand that you have peer-reviewed, published works. One tangible benefit from writing is that attorneys search the Internet for publications related to the subjects of their cases in order to find related, qualified expert witnesses. Being a published author can create additional publicity in the form of media interviews, book signings, and book reviews. While writing requires a tremendous effort, the benefits of being published definitely make the effort worthwhile.

Legal Periodicals

Many legal newspapers, magazines and journals will accept articles from non-attorneys on a subject that will benefit their readers.

Trade Journals

Being published engenders instant respect from your peers, who know how challenging it is to write anything of substance. If an attorney consults trade journals to find experts, you will stand out.

Mainstream Publications

Reporters and editors seek out experts to comment on current news items. They maintain a large card file of people who can provide a "sound bite" spontaneously for print or air. Even one successful contact could provide valuable public exposure and enhance your credibility as an expert in your field.

Opinion Pages, Letters to Editors, Book Reviews

Keep in mind that these reach the general consumer rather than targeting the legal community. They are, however, free forums and, in many cases, widely read.

Note:Remember to identify yourself and list your contact information on any writing you submit for publication.

Excerpted from The Expert Witness Marketing Book by Rosalie Hamilton. Ms Hamilton is the leading authority on expert witness marketing and founder of Expert Communications. Rosalie provides customized marketing plans and consulting and coaching to individual experts and firms.

March 31, 2015

Immigration Expert Witnesses

Immigration expert witnesses may consult on issues involving employment based immigration, green cards, immigration policy, and asylum.The Society for Applied Anthropology (SfAA) presented Anthropologists as Expert Witnesses: Theory, Practice and Ethics at their annual meeting March 24-28. University of Cincinnati assistant professor of anthropology Leila Rodriguez has testified in immigration cases and writes:

I think the legal system's understanding of culture is very different from how anthropologists define culture," explains Rodriguez. The legal system often is looking for something with clear limits around it - the black-and-white answer - when most of our answers as anthropologists are gray.

Recorded sessions will be published at a rate of a couple a week, starting about two weeks after the annual meeting. Sign up to be notified via RSS or email.

Guilt, Innocence and Ethnography: Informants and Expert Witness Presenter: Jeffrey H. Cohen, The Ohio State University

Judicial Ignorance and Expert Witnesses in Asylum Cases Presenter: Murray Leaf, University of Texas at Dallas

The Epistemology of Expertise: Scientific Anthropology and Expert Witness Testimony in a Criminal Case Presenter: Leila Rodriguez, University of Cincinnati

The Role of Culture in Expert Witness Testimony: Presenter: Kendall Thu, Northern Illinois University

Expert Witness: Asylum vs. Criminal Proceedings with Central American Immigrants in U.S. Courts Presenter: Allan Burns, University of Florida

Can I Get a Witness? A Lawyer's Perspective on the Critical Role of Experts in Saving Lives Presenter: Virginia Raymond, immigration attorney


The SfAA promotes interdisciplinary research in addressing issues affecting human beings around the world. With over 2,000 members, the society is the pre-eminent international organization in the field. The theme for the 75th annual meeting is "Continuity and Change."

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.