Expert Witness Blog

WebWire writes that computer forensic expert witnesses:

...deal with some of the most grave and serious of criminal cases that involve digital evidence. However it may be surprising to hear that currently there is no regulatory body to ensure the quality of their work, their security, and the expert’s individual’s background.

It is a different case for those forensic companies who work for prosecuting bodies such as police forces and law enforcement agencies, as they are normally independently regulated by the instructing body and undergo rigorous vetting. Forensic companies working solely for the defence however, have the same access to the same evidence involved in these cases, yet nobody is actively monitoring their activities. In theory a one man band with a computer and the appropriate software could take on criminal defence cases which range from fraud, terrorism and drugs offences, to indecent images of children and grooming charges.

The majority of criminal cases now include at least one form of digital evidence, whether it is a mobile phone, an iPod, or a computer, and where there is a prosecution there must be a defence. Computer Forensic companies providing defences are becoming involved with seriously high profile criminal cases on a regular basis and should undergo the same monitoring and regulation that the prosecuting bodies receive.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on ensuring an effective audit process.

Extensive work goes into producing reports in litigation. The case team supporting the experts should have an audit process in place that ensures that all analyses were performed correctly and that factual statements can be verified from orignial source documents. In addition, the audit process should make certain that no information in the report is the result of only one person's input or review.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on agreeing on an outline and defining the scope of the analysis.

Experts can often help attorneys better define the questions that will advance their case, as well. From an expert's standpoint, the goal is to define questions that are sufficiently narrow to fall within his or her specialty, while also being broad enough to be useful to the client. Some experts are comfortable defining an expansive scope of research, whereas ohters prefer defining a narrow scope. Equally important as defining the questions effectively is defining them early. The expert and their support team should discuss the questions as soon as practicable, and the attorneys should provide their insights to get the team headed in the right direction with the right information. This significantly reduces the likelihood of spending time on research that ultimately does not become part of the expert's opinion.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on agreeing on an outline and defining the scope of the analysis.

In some cases, a significant initial stumbling block is defining the question or questions you want the experts to address. Choosing the right questions and establishing the scope of the analysis have obvious implications for your budget; they are also relevant to determining how many experts you retain. Experts may be helpful in guiding you on which questions they think they can answer. Expect the outline to change over time, but ensure that the experts do not stray from their area of expertise. While experts should provide the most rigourous analysis of the facts of the case, they should also know when certain matters are better addressed by other witnesses, be they fact witnesses or experts in other areas.

As reported at p2pnet.net:

Word of the new Expert Witness Defense Fund is getting around online fast, and not only on English language sites. Vivendi Universal (France), Sony BMG (Japan and Germany), EMI (Britain), and Warner Music (US), the members of the Big 4 organised music cartel, are engaged in a vicious and bitter battle with their own customers to force them into becoming compliant consumers, just as they were in the heady pre-Net days...

The fund has been created so RIAA victims can hire their own (entertainment and media) experts in what Recording Industry vs the People’s Ray Beckerman believes is a “cataclysmic event in the history of the RIAA’s litigation campaign”. Free Software Foundation Expert Witness Defense Fund will, “go a long way to at least partially levelling the playing field for the men, women and even young children currently under attack by Warner Music, EMI, Vivendi Universal and Sony BMG,” we posted yesterday. So far, among others, it’s been reported by:

Wired, Slashdot, Hard OCP, Ars Technica, TechDirt and Slyck(US)
The Inquirer (UK)
tweakers.net (Holland)
Linux.org.ru (Russia)
ZDNet.Be (Dutch)
Ratiatum (French)
Afterdawn (Finland)
Punto Informatico, (Italy)
OS News (Poland)
Tom’s Hardware (France)
p2pnet - (Canada)

Debra Cassens Weiss reports Attorney Fee Expert Angers Judge, ABA Journal, 11/19/07.

A Philadelphia judge has chastised an expert witness for his testimony challenging attorney fees in two cases, including the class action case against Wal-Mart for unpaid overtime. In opinions issued last Wednesday, Judge Mark Bernstein criticized the defense witness, John Marquess of Legal Cost Control Inc., for testimony in the Wal-Mart case and in a successful class action suit against Kia Motors America Inc., the Legal Intelligencer reports. Bernstein awarded $45.7 million in attorney fees and $3.6 million in expenses in the Wal-Mart case.

In the Kia case, Bernstein said Marquess gave a biased review that was 'intentionally factually restricted.' Bernstein had awarded $4.125 million in fees in the suit, which had contended brakes on 1995 to 2001 Kia Sephias needed to be replaced about every 5,000 miles. The jury ordered Kia to pay $5.6 million, or $600 each, to the 9,402 class members. Bernstein had been ordered by a Pennsylvania superior court to write an opinion justifying the fees.

'The professional witness testifying without integrity, saying whatever their masters pay them to say, makes a mockery of the integrity of our system of justice,' Bernstein wrote. 'The court rejects the concept that an expert is nothing more than a hired gun who applies 'expertise' to whatever material is provided by counsel without any responsibility to request available information reasonably required to render an honest, valid opinion.'

Kansas State University Professor and expert witness Bob Shoop has been writing about teacher sex abuse cases since 1984. The child sex abuse expert witness says that "consistently most studies have indicated that between 5 and 10 percent of the students in a high-school setting have had an inappropriate relationship with an adult." An AP investigation has found that more than 2,500 educators have been accused of misconduct and victims were 80% students.

Jeff Kuhner, communications director for the Thomas B. Fordham Foundation, said there are many reasons why most of the abuse goes unreported, but underneath is a bureaucracy looking out for its own. “You have public school unions who are very deeply entrenched, who are more interested in protecting the interests of their members and teachers than they are in serving students," he said.

Roy Einreinhofer, spokesman for The National Association of State Directors of Teacher Education and Certification, operates a voluntary database to track offenders and says the list is long. “The clearinghouse contains around 37,000 names," he said, "and that increases at a rate of about 2,500 or so a year.”

As reported in citizenlink.org.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on selecting the attorney to communicate with experts.

In large cases, designating a point person whose responsibilities include communicating with the experts avoids unnecessary work and ensures coordination of expert research and legal strategy. The point person should be quanitatively skilled and have some decision-making authority or direct access to a senior case manager.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on managing documents.

On smaller cases, sending all documentation to the experts and spending time reviewing the materials with them is often most efficient. On the other hand, ten boxes of documents accompanied by a two-sentence cover note - something we've experienced - is not an effective way to proceed. On the largest cases, direct access to the document management system is by far the best way to manage the process effectively.

In one recent case, the law firm we were working with installed its proprietary document management system and database program on our computers to provide us with electronic access to all documents. In real time, we could query the fully text-searchable database for documents or keywords. This saved considerable time and money (and trees) despite the initial investment. If such a system cannot be made available to the expert, try at least to provide documents in a searchable format on CDs.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on managing the information flow in your case.

When massive amounts of documents and facts are involved, it is tempting to restrict the amount of information flowing to experts. However, because the expert is independent and must consider all relevant information, such an approach can backfire, leading to surprises in deposition or testimony and potential amendments to a report. Providing access to all documents and fact witnesses while assisting the expert in the selection of relevant documents is the safer way to proceed, and can be done efficiently. Costs can be minimized by relying on those working under the expert's direct supervision (and at lower rates). Such staff can pre-screen client personnel for discussions with the expert, review documents, and develop factual summaries that consist of quoted excerpts and are devoid of opinion.

The Sun Times reports: An Ontario Municipal Board hearing into a proposed Wal-Mart in Port Elgin was suspended as lawyers and OMB officials went behind closed doors for most of the day Thursday. One of those witnesses was Laura Robinson, who was introduced as an violent crime expert witness speaking on violence against women. Robinson supports FOSS's stand that any large development on the land in question will compromise the safety of recreational trail users. "It's a story that needs to be told," she said. "As an athlete I understand that you're already taking a risk due to the inherent danger of sport . . . there is a responsibility to reduce other risks. Not knowing who is around the corner is a danger. Wal-Mart's own expert witness called the trail curve an ambush site. That's frightening."

An Expert Witness Defense Fund was established today by the Free Software Foundation and the Recording Industry vs The People blog (run by copyright attorney Ray Beckerman) to help defendants cover the costs of entertainment and media expert witnesses used to defend themselves against file-sharing lawsuits brought by the recording industry. "This could be a real catalyst in the file-sharing litigation," Beckerman said. If you agree and want to contribute to the fund, the FSF has a page set up for contributions. If you've found yourself on the wrong end of a file-sharing lawsuit, you can e-mail Beckerman with the subject "Technical Expert Funding Request."

Ars Techica reports that cases will have to meet certain criteria to benefit from the fund including the defendant's willingness to see the case through to conclusion, the importance of the case to critical legal issues, the amount of money spent by the defendant and/or the attorney fighting the infringement claims, the need for assistance and technical expertise, and the competing needs of other cases.

A San Francsico federal grand jury has indicted Barry Bonds on four counts of perjury and one count of obstruction alleging that he "knowingly and willfully" made material false statements regarding his use of performance-enhancing substances during his grand jury testimony in the into the Bay Area Laboratory Cooperative. Bonds had a grant of immunity during his 2003 testimony with one exception: If he committed perjury or made a false declaration, he could be charged.

Columbia University law professor John C. Coffee Jr., a white-collar crime specialist, said it will be hard to prove that Bonds knowingly made a false statement with the intent of misleading the grand jury. "You can imagine the defense putting on expert witnesses about how Bonds could have believed this was some of exotic" but legal product, Coffee said, reports LATimes.com.

The West Virginia Supreme Court of Appeals has ruled that Ohio Circuit Judge Arthur Recht improperly excluded neurosurgery expert witness Peter Sheptak in a trial over a car crash. The decision means Sheptak can to testify for Lambert Jones II, whose Ford Probe rear ended a Lincoln driven by George Naum in 2003. Naum claims the collision caused a concussion, headaches, dizziness, confusion, and memory problems but the expert witness said "this was an extremely low level impact with no significant discernible damage to either vehicle. I find it highly unlikely that the patient suffered a concussion during the impact," he wrote. "I also feel it highly unlikely that he struck his head on the roof as he reported to several physicians."

Naum's attorney had argued that Sheptak could not testify about any change in velocity that Naum experienced because Sheptak was not a biomechanics expert witness.

As reported in the WVRecord.com

The West Virginia Supreme Court of Appeals recently held that although a medical expert witness does not use the medical tools alleged to have caused harm does not mean he or she may not testify to the standard of care needed while using them. The court found the fact that urology expert witness Dr. Robert Lewis "uses a different method to perform a urethral dilation procedure does not disqualify him from giving testimony on the standard of care to be employed when performing this type of procedure." LegalNewsline.com also reports:

"What this case demonstrates is how this Court's decision to abandon the locality rule in medical malpractice cases in favor of a standard of care more national in approach is often misemployed to prevent qualified physicians from offering testimony in cases brought under the (Medical Professional Liability) Act," Justice Joseph Albright wrote.

"As we observed in Paintiff (v. City of Parkersburg, 1986), the need for employing a locality rule in medical malpractice cases was no longer present due to the omnipresence of medical information relative to the treatment of diseases and injuries."

The murder trial of Wilson Santiago could cause Ohio to reconsider its controversial rule forbidding defendants from seeing all of the state's evidence against them. Santiago is accused in the 2006 shooting death of Cleveland Detective Jonathan "A.J." Schroeder. Defense lawyers want the police reports in order for sanity/trial competency expert witnesses to evaluate Santiago's sanity and psychological competence to stand trial.

The prosecution argues that case law and the state's court-procedure rules explicitly state that a defendant isn't entitled to police reports but Common Pleas Judge Janet Burnside declared "Fundamental fairness compels the disclosure. The obvious means to protect a capital defendant in his trial is to provide copies of the police reports and witness statements to defense counsel so that they can be as prepared as their possible expert witnesses and can discern for themselves what exculpatory information is contained in those police reports," she asserted, according to Cleveland.com.

In Defense Medical Expert: Turning the Defense Advocate Into the Plaintiff's Witness, R. Rex Paris advises on the cross-examination of a defense doctor. Paris writes that often the defense medical expert witness creates a "mountain of rubbish" which mesmerizes the jury. Because jurors do not have the benefit of court experience, they often become confused about the severity and/or cause of the client's injuries.

The simplest way to handle this problem is by subpoenaing the defense doctor and calling them as an adverse witness. Any designated expert whose deposition was taken can be called as a witness by any party. (You have to pay them but it is worth it.)... It is essential that the defense doctor be discredited before the jury becomes convinced of their infallibility. In order to diffuse the defense doctor's testimony, we must first recognize that we are afraid of the expert. We know that if the jury believes the defense expert, the best we can hope for is a lower verdict.

South Dakota Attorney General Larry Long has hired the firm of Stinson Morrison Hecker LLP to defend the state in a lawsuit over the school-aid formula. Long described the case as countering education and schools expert witnesses from the parents and schools challenging the adequacy of the state-aid formula. "There are these pods of experts who go around the country assisting people who bring lawsuits in these matters," Long said. "This firm has experience in dealing with those experts and defending states in these kinds of cases." ArgusLeader.com also reports:

Long said the firm was brought to the case because of its experience in handling similar lawsuits in other states. The firm will help examine and cross-examine expert witnesses in the case, he said. Most recently, the firm worked with state officials in Missouri in a school-funding case, and the state won that case, Long said.

Ex-drill instructor Sgt. Jerrod Glass is standing trial in military court for allegedly hitting, slapping, and abusing dozens of recruits. Expert witness Gunnery Sgt. Rogerio De Leon, one of the depot's most experienced drill instructors, testified that even "incentive training" has strict guidelines. The military expert witness said recruits in the first weeks of training can be ordered to do push-ups as incentive training for only three minutes at a time, followed by a 30-second break. The prosecution argued that Glass treated Marine canines better than soldiers. LA Times.com also writes:

Gunnery Sgt. James Cobb, who was kennel master at the Marine Corps Recruit Depot here when Glass was assistant kennel master, testified as a dogs expert witness that Glass followed one of the cardinal rules of dog-handling: Never hit a dog...'Are you trying to argue that he treated his dogs better than his recruits?' (defense attorney) Meeks asked in an angry tone. 'Yes,' said Capt. Christian Pappas, the prosecutor.