October 21, 2014

Expert Witness Marketing Consultant Rosalie Hamilton On Expert Pay

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

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

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

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

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

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

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

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

The most important points in getting paid are:

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

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

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

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

October 12, 2014

Medical Malpractice Expert Witness On Legal Medical Causation Part 1

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

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

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

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

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

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


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

October 9, 2014

Economic Damages Expert Witness On Future Earnings Part 1

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

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

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

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

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

October 5, 2014

Cross-examining the Expert Witness by Dean Brett Part 2

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

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

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

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

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

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

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

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

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

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

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

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

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

- Dean Brett

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


The next installments of this article series will be:

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

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

September 29, 2014

Forensic Expert Witness Association's 2015 Annual Conference

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

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

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

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

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

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

September 27, 2014

Business Valuation Expert Witness Answers FAQ For Attorneys

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

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

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

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

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


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

September 24, 2014

Neurosurgery Expert Witnesses

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

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

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

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

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


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

September 20, 2014

Automotive Expert Witnesses & Recalls

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

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

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

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

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

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

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

More information: Latest Recalls Announced by Manufacturers.

September 17, 2014

Business Expert Witness On Coming To Grips With Risk

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

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

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


September 15, 2014

Cross-examining the Expert Witness by Dean Brett Part 1

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

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

Part 1 - Why cross-examine an expert witness?

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

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

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

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

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

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

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

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

The next installments of this article series will be:

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

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

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.