Expert Witness Blog

In How to Choose the Right Expert Court Witness Chris Robertson gives quick tips on how to narrow your search for the right expert witness. Robertson, of Majon International, an internet marketing company in Los Osos, CA, writes "For court matters involving real estate, business partnerships, Board of Directors, wrongful terminations, minority shareholder rights, and other related subjects, finding the right expert court witness for the job is not always a simple process." Bias and conflict of interest should be considered in researching and hiring the best expert witness for your case.

Bias and Conflict of Interest

Before hiring an expert court witness, be sure that he does not have a conflict of interest or any potential reasons to be biased in the case (past or present). Even if the expert is not biased, there may be things in his past that the other side could point out and weaken his influence and evidence in the eyes of the court.

Most importantly, make sure the expert has a history of being balanced in every case. The expert court witness in your case will be one of the major players, and could make the difference between winning and losing.

In How to Choose the Right Expert Court Witness Chris Robertson gives quick tips on how to narrow your search for the right expert witness. Robertson, of Majon International, an internet marketing company in Los Osos, CA, writes:

Choosing a Court Witness for Complex Cases

With complex cases, be sure the court witness you are considering is willing to work closely with your team. Keep him informed of every development in the case, and involve him in important decisions that would benefit from his opinion. But even during a complex case, please do respect his privacy and independence.

Choosing the Same Court Witness Again

If you need to hire the same expert court witness you've used before, do another check on credentials. He could have even more beneficial credentials than before. Ask your colleagues or counsel if anything has changed (for better or worse) in the expert's background.

Writing Skills

As courts move more toward the "written report" than experts actually taking the witness stand, you'll need to be sure your expert has the correct skills to write a comprehensive report.

Friday's arguments in the class-action lawsuit against DuPont and New York-based T.L. Diamond & Co. mark the end of the first phase of what could be a four-part trial. Both sides attempted to discredit each other's expert witnesses in the lawsuit which alleges that DuPont and Diamond dumped arsenic, cadmium and lead on the site of a former plant. The plaintiffs are seeking long-term medical monitoring, property damages, and punitive damages paid to thousands of people in and around Spelter, W. Va. Environmental expert witnesses testified on testing methods, comparison standards, and dangers to humans. According to BusinessWeek.com:

An attorney for some of the residents said the former zinc-smelting plant left "a big cancerous tumor" in a small West Virginia community, and DuPont should be required not only to clean up the mess but also to monitor the health of the people living around it.

Defense attorneys, however, say there is no evidence to support that claim, and DuPont capped the site so it might someday be redeveloped. "It cannot be denied that DuPont did good things here," insisted defense attorney Jeffrey A. Hall.

In How to Choose the Right Expert Court Witness Chris Robertson gives quick tips on how to narrow your search for the right expert witness. Robertson, of Majon International, an internet marketing company in Los Osos, CA, writes:

For court matters involving real estate, business partnerships, Board of Directors, wrongful terminations, minority shareholder rights, and other related subjects, finding the right expert court witness for the job is not always a simple process. There are many factors to consider. Here are some quick tips to narrow your search for a dependable court witness in these fields.

The Right Qualifications

The term "expert" is crucial. Find a court witness with a solid background in the areas needed for the case. A qualified witness will usually be able to bring clear, concise information to the case. Check the witness' background as an expert to be sure he is qualified in the field. This will also help you discover his or her strengths and weaknesses, and to avoid major surprises at the last minute. For instance, both sides may have contacted the same court witness. Or, the expert may have already taken a view in a previous similar case, which may be unhelpful in your client's case.

Also, ask to be sure the witness will accept instructions from both defendants and claimants. Many courts do not favor one-sided experts, and will choose one with a reputation of being even-handed.

If the other side chooses their own expert court witness, be sure your expert has similar qualifications so theirs doesn't appear to be "more qualified" than yours.

More to come from Mr. Robertson including "Choosing a Court Witness for Complex Cases." Article Source: articleboy.com

The Oklahoma State Bureau of Investigation plans to open its lab for a rare weekend testing to accomodate expert witnesses hired by defense attorneys in the murder case against Clint Baker. Baker is accused of beating and cutting the throat of Todd Rich in March. The small amount of blood found for DNA testing would not be sufficient for separate tests. Previously the OSBI had told the court it was not permitted to allow outside DNA expert witnesses into its lab to observe testing due to "confidentiality requirements.” NewsOK.com also writes:

A few days after the OSBI alerted prosecutors that the forensic evidence would be consumed during testing, attorneys for Baker protested the testing and asked that an expert hired by the defense be allowed to test the samples. In July, a judge ruled that experts hired by the defense should be allowed to be present when forensic testing was done on the DNA evidence.

In Ten Ways to Torpedo Your Expert, Dr. Joni Johnston, President and CEO of Work Relationships, shares strategy on how to avoid "torpedoing" your expert witness.

Strategy #1B: Avoid the expert who is biased in their presentation. Johnston describes two common pitfalls: 1) the use of treating clinicians and 2) the hiring of the one-sided testifier.

A treating clinician relies on self-reported information from his or her patient. That's very different from someone whose mission is to find corroborating or contradictory evidence in the total breadth of available data. A treating clinician should only be a fact witness, basing his or her testimony solely on a report of what they did, thought, and documented during therapy.

Problems with the one-sided testifier are obvious. The expert who focuses exclusively on plaintiff or defense work is vulnerable to challenges for bias. Worse yet, such an expert may have become an advocate, whose agenda will be obvious to the jury.

In Ten Ways to Torpedo Your Expert, Dr. Joni Johnston, President and CEO of Work Relationships, gives strategy on how to avoid "torpedoing" your expert witness.

Strategy #1A: Avoid bias. Don't use a misguided bias in selecting the expert. Dr. Johnson describes one of the most common biases in expert witness selection is "the belief that the most impressiviely credentialed expert is alwsays the best witness. In reality, the ivory tower academic who looks good on paper can windup boring the jury to tears. Or worse, come across as arrogant or unfeeling." She describes a psychiatry expert witness who infuriated the jury by dissecting a distraught plaintiff. The expert's unfeeling demeanor resulted in actually harming the defense.

Strategy #1B- 10 to follow.

Environmental expert witness Erwin Iskandar said Thursday that Sutiyoso's Jakarta administration should be held responsible for the massive floods that crippled the city in February. Iskandar is the head of Trisakti University's research institute and said the local administration should have been able to properly anticipate the February floods. The governement has been criticized for failing to anticipate the floods. The JakartaPost.com also reports the expert witness stating:

'Jakarta has been flooded for the past 400 years. With the help of his advisors, the governor should have been able to anticipate (the floods) through a number of efforts, including fixing the flood gates built during the Dutch colonial era'... The February floods inundated around 70 percent the national capital, paralyzing transport and commerce and forcing many to move to makeshift shelters... Thursday's hearing was part of a court case filed by Jakarta residents represented by non-profit organization Jakarta Residents Forum (Fakta) against the administration and Sutiyoso. The residents alleged both the governor and his administration had been negligent in their efforts to prevent and deal with the consequences of the flooding.

Fracturing her skull and suffering permanent disabilities while ice skating, a patron of the Ice House Skating Rink in Carey, NC, filed a liability suit against the rink. The expert witness in her case testified that the skating rink should have had an employee patrolling the ice to stop unruly skaters and post signs warning against horseplay. The sports and recreation expert witness said the Ice House was negligent in not having a rink guard on the ice surface as required by the Ice Skating Institute of America. However injuryboard.com also reports:

Upon a motion made by lawyers for the Ice House Skating Rink, the trial judge dismissed the case without allowing a jury to rule on whether the Ice House was liable to the patron for her injuries. Because of her head injuries, the injured customer has no memory of the fall and could not locate any witnesses who saw the accident. However, her family members testified that a boy told the clamant that he was sorry shortly after the accident. In holding that the claimant's evidence was not sufficient, the Court of Appeals wrote: "Given the lack of information about how plaintiff fell, the current record is devoid of evidence that supports an inference that a rink guard could have prevented the fall. Accordingly, the statement by teenage boy does not establish that an act or omission by defendant caused the plaintiff's damages."

This case demonstrates the difficulty of proving liability when there are no eyewitnesses to the occurrence in question.

Linda Moreno, defense lawyer for the Holy Land Foundation for Relief and Development, rested their case by asking the federal jury to look beyond what she described as "fear-mongering and politically motivated charges against a Muslim charity." Much of closing arguments was spent trying to discredit the other side’s expert witness testimony. Nathan F. Garrett, a federal prosecutor, told the court “I just don’t think they (the terrorism expert witnesses for the defense) know much about what matters in this case.” NewYorkTimes.Com also reports:

Stressing her client’s years of work helping impoverished Palestinian children, a defense lawyer on Wednesday asked a the government has accused of financing the terrorist group Hamas. Her client, Ghassan Elashi, the former chairman of the charity, the “did not support Hamas,” said the lawyer. “He supported his people,” who are living amid poverty and violence.

But the government, in its conclusion to this closely watched prosecution, said the foundation was, from its inception, linked to radical groups promoting jihad. Like Hamas, it was “born in the bosom of the Muslim Brotherhood,” said Nathan F. Garrett, a federal prosecutor, using a phrase he repeated several times during his almost three-hour summation.

The Holy Land foundation, which was based in a Dallas suburb, and five of its officials are charged with conspiracy, money-laundering and providing financial support to a foreign terrorism organization by sending more than $12 million to Palestinian charities.

Buffalo, NY, attorney Joseph J. Marusak writes:

This tribute is written to acknowledge the debt Western New York owes to Erie County’s former chief medical examiner. I first met Uku as a homicide prosecutor in the late 1980s...You soon learned that if Uku did the autopsy, there would be no reasonable doubt as to the cause of death. Defense counsel’s skills were irrelevant. Cross-examination only enhanced Uku’s credibility, for he always carried himself with an impeccable medley of modesty, candor and dignity....

His integrity was unmatched. It was not surprising to learn that O.J. Simpson’s lawyers reached across the country to solicit Uku to testify as their expert witness. Yet it was even less surprising to learn that Uku politely declined the offer, which would have given him the opportunity to close out his career on the national stage, testifying in perhaps this nation’s most celebrated murder trial. His testimony would have opened the proverbial doors of fame and fortune to him. Yet Uku simply said 'no.'

Based on his logical understanding of the facts, Uku had no reasonable doubt as to Simpson’s guilt. That was reason enough to remain in Buffalo, away from the prestige.

Dr. Alex Zakharia, a Florida surgeon, admitted Tuesday to creating the impression that he was the lead surgeon for numerous coronary artery bypass grafts - when he had never performed such surgeries. The expert witness testified at the trial of a doctor accused of medical malpractice at the Ann Arbor Veterans Administration. Zakharia pled guilty to contempt of court and under a plea agreement, he faces up to a year in custody. He must also make restitution with affected parties and retire from medical practice by the end of the year. mlive.com also reports:

Authorities said he testified as an expert witness in 2002 on behalf of a plaintiff charging a doctor at the VA with medical malpractice in connection with a coronary artery bypass graft.

...felony charges pending against him for perjury, mail fraud and wire fraud will be dismissed. He will be sentenced Dec. 11.

In Prescription for Powerful Expert Testimony, Trial Magazine, May 2007, Deborah J. Gander advises to take these steps in order to get the most powerful testimony from your expert:

1) Make sure that your expert understands the legal elements that you have to prove in order to win your case.

2) If the deposition was months or years before the trial, refresh the expert's memory before they get on the stand.

3) Set up a mock trial and have another lawyer cross examine your expert. This will help lessen surprises at trial.

4) Start direct examination by having your expert explain their qualifications. This will include schools and areas studied, degrees, awards, certifications, & honors, employment history, job functions that relate to your case, literature or text books that they have written, presentations, teaching, or other academic work.

Accident reconstruction expert witness Glen Urquhart says Robert Farquharson, a man accused of killing his three sons by driving his car into a dam, would have steered the vehicle toward the water. The expert witness says Farquharson made three distinct steering movements before the car entered the dam at between 60 to 80 mph. Urquhart testified that the car made an initial sharp turn to the right, then straightened and finally made a more subtle turn to the right before it entered the water. HeraldSun.com also writes:

Farquharson, 38, was at the wheel of his car with his three children inside when it plunged into a farm dam in Winchelsea, south-west of Melbourne, on Father's Day 2005. The children - Jai, 10, Tyler, seven, and Bailey, two - drowned in the dam at Winchelsea while he swam to safety. The court has heard Farquharson said he had a coughing fit, blacked out and woke as the car was in the dam. However, the prosecution alleges he deliberately drove into the dam to get back at his estranged wife.

Buccino & Associates, Inc. was hired in 2003 as an expert witness in the Just For Feet (JFF) Chapter 7 case. Their forensic accounting expert witness report resulted in the largest out of pocket payment by outside directors in history. The former JFF directors will pay $41.5 million, more than the combined payments of former directors in the Enron and WorldCom cases. EarthTimes.org describes Buccino as being hired to:

...perform forensic analysis, opine on corporate governance matters, evaluate Chapter 11 options, opine on insolvency issues, value the pro-forma reorganized company on a fair market operating basis, and, finally to determine financial damages. From 1996 to 1999, earnings were overstated by tens of millions of dollars. In 1999 alone, pre-tax income was reported as $43 million; and, if properly stated would have been a loss in excess of $100 million. In November, 1999, JFF filed for Chapter 11 and in early 2000 the case was converted to a Chapter 7 and its assets auctioned.

When hiring an expert witness, make sure to review their prior testimony and opinions. Obtain and review transcripts of the expert's testimony to evaluate the strengths and weaknesses that may affect testimony in your case. Has the expert given inconsistent testimony? Has the expert previously given verbose or confusing testimony? If so, that expert may not be right for your case.
Good credentials are appreciated by juries. The best expert witness for your case should be active in their field and up on recent developments but other factors are important as well. Demeanor and personal characteristics are also to be considered. Juries lean towards an expert who has no apparent bias. Does the expert give a clear and focused presentation? Is their testimony straight forward and not too long? The bottom line is...it is imperative to carefully evaluate the expert witness for your case.

No matter the verdict in Phil Spector’s criminal case, his defense team will be back in court in two weeks defending him in a civil suit filed by Clarkson’s mother, Donna. Forensic pathology expert witnesses from the criminal trial would be called again. CourtTVNews.com reports:

Should Spector be acquitted, lawyers for Donna Clarkson would have to start from square one with the civil jury...'We would have to retry the whole case,' said John Taylor, a civil lawyer for the Clarkson family. The bartender from Trader Vic’s, Dr. Pena, Lynne Herold, Adriano DeSouza — they’d all be back on the witness stand. The defense may call some of Spector’s expert witnesses from the criminal trial, as well as Clarkson’s friends, like Punkin Pie and Jennifer Hayes-Riedl.

Christian Nielsen is charged with quadruple murder in western Maine. His lawyers want to have the 32-year-old cook declared incompetent to stand trial for the 2006 killings. Expert witness Dr. Ann LeBlanc, director of the state forensic service, testified Nielsen suffers from schizoid personality disorder but it does not make him incompetent to stand trial. Assistant Attorney General Andrew Benson says Nielsen comprehends the charges against him, understands what's at stake in the legal process and is capable of assisting in his defense if he chooses to while defense lawyers Ron Hoffman and Margot Joly say Nielsen is emotionally detached and disinterested in his legal defense. MaineToday.com also reports:

Forensic psychology expert witness LeBlanc acknowledged Thursday that "he's not a mentally healthy person at all." But she said there's no evidence that he has ever sunk into psychosis or that he was delusional, two signs of bigger mental health problems. Asked if he was capable of "logically organized thinking," LeBlanc responded that "he could do it." Nielsen is aware enough of his situation that he thinks he's "going to spend the rest of his life in prison or in a mental institution," she said.

Four organized-crime figures and a retired police officer were convicted Monday on federal racketeering charges in connection with 18 mob-related slayings dating back to the 1970s. Two of those convicted were Joseph "The Clown" Lombardo, 78, and Paul "The Indian" Schiro, 69. Expert witness James W. Wagner, president of the Chicago Crime Commission and past supervisor at the FBI's organized crime unit in Chicago, testified for the prosecution. The RICO and racketeering expert witness said, "All that matters is that those who committed the murders be brought to justice, no matter how old the files might be or how long the case takes to get to court." LATimes.com also reports:

The first of the 18 mob-related killings -- forgotten by many amid this city's notoriously corrupt and violent history -- happened more than three decades ago. Two of the men connected to the so-called Family Secrets mob conspiracy case, designed in part to solve these cold-case killings, died before the case ever went to trial. A third was deemed too old and infirm for a courtroom...Frank Calabrese Sr., the 70-year-old convicted loan shark believed to be involved in more than a dozen slayings, also was found guilty of extortion and running a sports-bookmaking operation.