December 31, 2007

Law & Legal Expert Witness Opines On Legal Status of Osama bin Laden’s Captured Driver - Part 1

UMass Dartmouth Professor Brian Glyn Williams has been called as a law and legal expert witness in the judicial proceedings to determine the legal status of Osama bin Laden's driver, Salim Hamdan. Hamdan is being held as an "alien unlawful enemy combatant," which denies him Geneva Convention rights as prisoner of war. Glyn's role is to shed light on the military command structure of the Taliban and Al Qaida armies. "As an expert witness I was supposed to be above the fray, to shed some light and personal professional knowledge" into an area that he says is routinely oversimplified, he said. SouthCoastToday.com also reports:

Most people in government and the military, he said, "discovered this zone after 911. Their view is shaped by images of people falling out of buildings on 911," he said. As a result they have a "reductionist approach" in which every Arab, every person connected with Al Qaida or the Taliban army is considered a terrorist. "If you were caught, you had something to do with 911," he said.

Excerpted from UMD professor testifies as expert witness at trial of bin Laden's driver, Steve Urbon, Standard-Times senior correspondent, December 30, 2007.

December 29, 2007

How Attorneys Can Best Utilize Their Medical Expert Witnesses #4

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert's Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with the preliminaries of retaining an expert.


Choosing a medical expert consultant requires critical evaluations of numerous features beyond obvious medical expertise. This is even more so for the key witnesses in a case. Medical experts need to be located, assessed for preliminary suitability, retained and later declared as an expert. The procedure is very active to maximize the value of your medical expert consultant. Once one has decided that a particular expert is the logical one to retain, one has to assess the match of the medical aspects of a case with the expert’s suitability in the context of the opinions (s)he will express. This means that retaining an expert does not mean a commitment to proceed with that expert through the case.

A carefully worded pre-retaining phase may ensue where the attorney very briefly describes the key facts in the case. The expert usually will not be able to express an opinion at that stage. Sometimes, however, I have been able to indicate to attorneys that the particular case does not fall within my experience range or my expertise; and at times, I indicate the converse.

The attorney must ensure that it cannot be claimed that the expert formed his / her opinion from the attorney or was unduly influenced by the attorney. Consequently, more commonly, this means initially giving the expert preliminary key documents about the case and obtaining feedback, generally oral, from the expert as to preliminary opinions. Such an early step may save substantial costs if the expert is not regarded as appropriate for the particular case as a full review of documents could take many, many hours and yet the key elements could be assessed in two or three.

More to follow on assisting civil litigation attorneys with medical experts from Dr. Neppe, Director, Pacific Neuropsychiatric Institute, Seattle, WA, www.brainvoyage.com.

December 28, 2007

How Attorneys Can Best Utilize Their Medical Expert Witnesses #3

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert's Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with credibility of your expert.

Choices are complicated by knowing that a credible expert will express an honest opinion. This may lead to the expert expressing an opinion that is unfavorable to the particular case. However, this may not be a disadvantage. The key is knowing your case’s strengths and limitations.

You should respect your expert’s thoughts. (S)He is generally trying to assist you, and his / her adverse opinion usually is well founded. If the expert’s opinion is entirely adverse, this may be a reason not to declare him / her further and find another expert provided a gray zone of opinion legitimately exists for that issue. On the other hand, it may be a strong clue, unless there are other cogent circumstances, to cut one’s losses and to settle the case or not bring it to trial or even not to file it.


More to follow on assisting civil litigation attorneys with medical experts from Dr. Neppe, Director, Pacific Neuropsychiatric Institute, Seattle, WA, www.brainvoyage.com.

December 27, 2007

How Attorneys Can Best Utilize Their Medical Expert Witnesses #2

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert's Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony begins by finding an appropriate match.

Clearly there are specifics that lead some experts to be retained above others. Expertise in a health care specialty is only one component to consider. Respect in the medical discipline is often a major index of success as an expert. The components of such esteem are predicated on peer respect, appropriate qualifications and recognition in the area.

Several other qualities should be relatively self-evident, but appear commonly neglected. All
characteristics are important, and could sometimes be critical, to a case. The balance of importance of each feature may depend on the specific case. Real expertise involves experience combined with knowledge ultimately translated into being credible to a jury, clear in guidelines for the judge, and able to truly advise the retaining counsel.

Factors that are more obvious are:
Experience in the forensic arena with appropriate testimony.
Mix of plaintiff and defense testimonies.
Indestructibility of the expert’s CV.
Clinical experience with the particular issues relevant to the case.

More to follow on assisting civil litigation attorneys with medical experts from Dr. Neppe, Director, Pacific Neuropsychiatric Institute, Seattle, WA, www.brainvoyage.com.

December 26, 2007

How Attorneys Can Best Utilize Their Medical Expert Witnesses #1

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert's Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony begins by finding an appropriate match.

Finding the correct medicolegal expert for a case is clearly dependent on, not only their expertise in the area, but their forensic proficiency at review, advisory and testamentary levels, as well as the respect they will command, their geographic location and the costs involved. Attorneys have to find medicolegal experts very carefully. Choices not only relate to skills in court, but the assistance that can be given prior to any testimony.

In choosing, one should create a list of what is needed and a shortlist of who can fill that role. You should list the strengths and limitations of your potential expert. This involves not only knowledge and expertise with the specific medical problems being analyzed, but skills such as incisive thinking, quick responsiveness, communication skills, responsibility, integrity and ability to work efficiently but rapidly.

More to follow on assisting civil litigation attorneys with medical experts from Dr. Neppe, Director, Pacific Neuropsychiatric Institute, Seattle, WA, www.brainvoyage.com.

December 23, 2007

Law & Legal Expert Witness Testifies Re: CIA Tapes

Law and legal expert witness Stephen Saltzburg told the House Judiciary Committee Thursday that the CIA's official explanation for destroying at least two videotapes depicting severe interrogation techniques "fails the straight-face test." Expert witness Saltzburg is general counsel for the National Institute of Military Justice and a George Washington University Law School professor. RawStory.com also writes:

'The rationale for destroying the tapes to protect the identity of the interrogators is almost as embarrassing as the destruction itself,' said Saltzberg. He said that the tapes could easily have been modified to obscure the faces of those involved, and that regardless, the CIA keeps a written record of which officers interrogated detainees.

'And so the explanation for destruction fails the straight-face test,' he said. "The only plausible explanation, I believe, is that the CIA wanted to assure that those tapes would never be seen by any judicial tribunal -- not even a military commission -- and they would never be seen by a committee of Congress.'

Continued Saltzburg, 'With [the CIA tapes] gone, we have the ultimate cover-up. The indisputable evidence no longer exists, and memories will undoubtedly differ about what happened.'blockquote>

December 22, 2007

Police Procedures Expert Witness Testimony Helps Cop

Crookston, MN Police Officer Donald Rasicot was found not guilty Wednesday of misconduct and assault during a 2006 arrest of a drunken man. The man's injuries were not consistent with a kick to the head, according to police procedures expert witness, Joe Dutton, a 30-year veteran of the Golden Valley Police Department who has trained thousands of law enforcement officers, including FBI agents, on proper use of force. He was the final expert witness and said Rasicot used appropriate force and that he would have done the same in similar circumstances. GrandForksHerald.com reports the:

Former Marine and veteran police officer who has been in trouble once before over his use of force, Rasicot faced possible time behind bars. He was charged early this year with two counts of misconduct by a public officer, both gross misdemeanors, and a count of fifth-degree assault, a misdemeanor. The first two counts each carried a maximum penalty of a year in jail and a $3,000 fine. The charges came from allegations made by Jason Knutson, 24, Crookston, after Rasicot arrested him in August of last year.

December 21, 2007

Optimizing Your Engineering Expert Witness's Testimony #5

In Get the Most From Engineering Experts, Christopher L. Brinkley writes on how thorough preparation of engineering expert witnesses is the key to winning your case. In this excerpt Brinkley discusses the reliability of the expert witness's work.

The reliability of an engineer's work may also be supported by testimony from defense witnesses. The defendant's in-house engineers and testifying expert should be questioned regarding the processes they followed in drawing their conclusions about the product and the materials on which they relied in performing their work. When the engineering experts testfiying on behalf of both the plaintiff and the defendant have used the same type of methodology and data, you can make the inference that the work is reliable, notwithstanding any difference in the ultimate conclusions.

More to follow.......
Excerpted from Trial Magazine, November 2007

December 20, 2007

Optimizing Your Engineering Expert Witness's Testimony #4

In Get the Most From Engineering Experts, Christopher L. Brinkley writes on how thorough preparation of engineering expert witnesses is the key to winning your case. In this excerpt Brinkley discusses challenges you may face regarding their expert witness testimony.

It is good practice for the expert to conduct his or her analyses in a manner that will satisfy a Daubert challenge. The expert should rely on materials and methods that are used by engineers working in the relevant industry. These include:
6) raw test data, test reports, applicable test protocols, photographs and videotapes, and equipment calibration reports
7) mathematical formulas, input data, and calculations preformed
8) notes, photographs, videotapes, and other materials related to inspections, measurements, examinations, or analyses
8) other factual information relevant to the engineer's analysis
10) diagrams, animations, models, charts, or illustrations of the engineer's work and the underlying engineering concepts.

Find #1-5 on previous blog entry.
More to follow.......
Excerpted from Trial Magazine, November 2007

December 19, 2007

Optimizing Your Engineering Expert Witness's Testimony #3

In Get the Most From Engineering Experts, Christopher L. Brinkley writes on how thorough preparation of engineering expert witnesses is the key to winning your case. In this excerpt Brinkley discusses challenges you may face regarding their expert witness testimony.

It is good practice for the expert to conduct his or her analyses in a manner that will satisfy a Daubert challenge. The expert should rely on materials and methods that are used by engineers working in the relevant industry. These include:
1) industry or government treatises, studies, and other publications referencing applicable engineering principals
2) engineering and design and performance standards related to the product at issue
3) engineering reports and drawings related to the product at issue, similar products, and products with alternative designs
4) patents related to the product at issue and improved designs

More to follow.......
Excerpted from Trial Magazine, November 2007

December 18, 2007

Optimizing Your Engineering Expert Witness's Testimony # 2

In Get the Most From Engineering Experts, Christopher L. Brinkley writes on how thorough preparation of engineering expert witnesses is the key to winning your case. In this excerpt Brinkley discusses challenges you may face regarding their expert witness testimony.

As a threshold matter, engineering experts must satisfy the jurisdiction's criteria for the admissibility of expert testimony and must support their work accordingly. In the federal courts, Federal Rule of Evidence 702 and the Daubert trilogy of cases provide the prerequisites for admissibility. Under Daubert, expert evidence must be relevant and based on sound reasoning and methods. To determine if an expert's analysis is reliable, the trial court must consider whether the underlying methodology has been tested, has been subjected to peer review and publication, has an identifiable error rate, has standards controlling the application of the technique, and has been generally accepted in the field.

Excerpted from Trial Magazine, November 2007

December 17, 2007

Optimizing Your Engineering Expert Witness's Testimony

In Get the Most From Engineering Experts, Christopher L. Brinkley writes on how thorough preparation of engineering expert witnesses is the key to winning your case. In this excerpt Brinkley discusses challenges you may face regarding their expert witness testimony.

Virtually every products liability case requires the assistance of one or more experts in the field of engineering. To use thse expert effectively at trial, you must be prepared to contront and overcome the unique legal and practical challenges associated with their testimony.
The law views expert engineering evidence from a unique perspective. Whether an engineer's work constitutes sound practice within the engineering community is often of secondary importance to how the law evaluates the engineer's methodology. As a result, you must make sure your engineering experts are aware of the procedural and substantive law that is applicable to their testimony.

Excerpted from Trial Magazine, November 2007

December 15, 2007

Appraisal and Valuation Expert Witnesses Have Bad Day in Court

Two expert witnesses in Louisville, KY had a bad day in court this week. First, antique weapon expert witness R.L. Wilson, along with Michael Salisbury, and Karen Salisbury, were charged with conspiring to defraud Owsley Brown Frazier and his International History Museum by taking commissions and kickbacks totaling $1.75 million.

Second, appraisal & valuation expert witness C.W. Slagle was forced to admit on Friday that he had fabricated part of his resume and admitted that he had falsely described himself as a University of Illinois graduate in civil engineering. Courier-journal.com also reports:

In response to questioning, Slagle claimed he attended the university though he didn't finish -- but an attorney for one of the defendants showed the jury letters from the university saying there was no record that he'd ever enrolled.... Slagle, of Scottsdale, Ariz., was hired to appraise weapons in September 2002, after museum officials began to suspect that Wilson may have inflated his valuations.

December 14, 2007

Orthopedic Surgery Expert Witness Opines in Hospital Case

Boston orthopedic surgery expert witness Dr. Brian Awbrey testified Wednesday that a succession of issues would have been avoided if Dubuque podiatrist Dr. Michael Arnz had avoided his use of a circular frame. Daniel Day is seeking monetary damages from The Finley Hospital. "There would have been no infection of the tibia, and we wouldn't be here today," Dr. Awbrey said. A former team doctor for the New England Revolution professional soccer team, Awbrey testified as an expert witness for Day's attorneys. THonline also reports:

Day subsequently developed osteomyelitis, a serious bone infection that required four surgical procedures to remove dead bone. 'The exposure of these additional risks (from the pins of the circular frame) is what led to his osteomyelitis directly,' Awbrey said. Awbrey testified it would be unwise to operate on Day's foot or tibia in the future, because any procedure would run the risk of reawakening any dormant osteomyelitis. However, on cross-examination, Awbrey did admit that a leg amputation could be performed and that this procedure would eliminate the risk of future osteomyelitis.


December 11, 2007

Are Criminalistics Expert Witnesses Compared To CSI?

Reporter Jennifer McPhee writes that some people say the “CSI effect” raises jurors’ expectations about what kind of forensic evidence they can expect criminalistics expert witnesses to deliver from every crime scene in the real world. “If I only come to court with a single fingerprint or a single piece of DNA, they are either going to think I’m stupid or lazy,” says Richard Devine, team leader at the Ontario Police College’s forensic training unit. In LawTimes.com McPhee also reports:

And even when the science on television is realistic, the scenarios aren’t, Devine later tells Law Times. “The bad guys in this province just drive by and shoot you. There’s nothing special about that. A good forensic investigator should be able to place the shooter. But I don’t want any bias that says a good forensic officer would have done this because that’s what they do on television.” Devine says one impact of these shows is they’ve made real world forensic investigators more professional and careful. Jurors are coming in looking for what they’ve seen on television, and also want to know how the Crown got the evidence and what it means for the trial, he says. Where people used to go to sleep during the forensic stuff, they don’t anymore. They are wide awake and they are listening. And they have a standard and that standard is created by the media,” says Devine.

December 10, 2007

Expert Witnesses' Crucial Role in Litigation #15

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 striving for an objective tone on direct and cross examination.

Otherwise strong experts sometimes may fail to present their testimony in a professional manner. On direct examintation, they are friendly and expansive with the attorney, but on cross examination, they clam up or become adversarial. This change in tone (or even body language) can create an impression that the expert is a "hired gun" ranther than an independent and objective authority.
Attorneys should help experts to convey objectivity when they testify. In practice, this means that experts should answer questions - on both direct and cross examination - in a way that conveys that they are helping the fact finder to understand their opinion fully. There is no reason for experts to change their demeanor when responding to direct or cross examination, thereby reminding the court that they were hired by one of the parties and not the other.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

December 8, 2007

Internet Expert Witness Opines Re: Cyber-Pirate's Website #2

More on Searchsystems.net v. Musselman:
U.S. District Court Judge Maxine Chesney awarded SearchSystems.net $780,000 in damages against convicted Cyber-Pirate Mark Musselman and his website, courtsonline.org. Internet expert witness Carole Levitt stated that "Searchsystems was an original and unique website which defendants copied--both the content and organization--and thus violated Search Systems intellectual property rights." California News Wire reports Pacific Information Resources, Inc.’s President/CEO Tim Koster, whose Thousand Oaks, California company operates www.searchsystems.net as stating :

'Hundreds of thousands of consumers have discovered, in purchasing their ‘public records access subscriptions’ from websites such as courtsonline .org, websherlock .com, detectivechoice .com, webinvestigator .org, restrictedonly .com, cisworldwide .com and datahounddetective .com, that eventually their subscription does not ‘work.’ Their access to the full data base is ultimately denied,' Koster explained. 'These confused consumers do not realize that they purchased their subscriptions from a website that had no authorization to sell access to Search Systems’ content.' In response to the flood of e-mails from angry and confused consumers, SearchSystems.net initiated a series of lawsuits against these alleged cyber-pirates.... 'Our website pioneered the concept of providing easy access to online public records,' Koster continued. 'We work hard daily to add to our database and keep our information current. Not only does cyber-piracy damage us and defraud consumers, but the presence of such a large number of these sites creates a public perception that all public records web sites are ’scams’.'

December 7, 2007

Internet Expert Witness Opines Re: Cyber-Pirate's Website

SearchSystems.net, a highly regarded site for researching public records, obtained a judgment of $780,000 in San Francisco U.S. District Court this week against convicted Cyber-Pirate Mark Musselman and his website, courtsonline.org. Internet expert witness Carole Levitt stated that "Searchsystems was an original and unique website which defendants copied--both the content and organization--and thus violated Search Systems intellectual property rights." California News Wire reports:

Musselman was sentenced earlier this year to 12 years in prison and over $4.6 million in criminal fines and penalties on a 47 count cyber-fraud conviction in Montgomery County, Ohio Common Pleas Court. Subsequently, he was declared liable under a ten count complaint for Internet consumer fraud by the Miami County, Ohio Common Pleas Court, under a similar set of facts as those presented to the Federal District Court in San Francisco, which entered this week’s Judgment and Permanent Injunction.

December 6, 2007

California Fuels Expert Witness Testimony Upheld In 244 Page Vermont Decision

In How They Can Squeeze More Miles From the Gallon, December 05, 2007, Marianne Lavelle writes on how car manufacturers can make more fuel-efficient cars. In her article, Lavelle tells us about the 244-page decision handed down in September by Vermont Federal Judge William K. Sessions regarding California's effort to force carmakers to limit their greenhouse gas emissions. Lavelle writes:

The short version is that the judge agreed with California's (fuels) expert witness, who estimated that the initial increased vehicle cost for consumers would be about $1,500. Not only would this be offset by about $5,000 in fuel savings over the car's lifetime, if fuel is $3 per gallon, but the judge said it is likely the premium would be only temporary. "The automobile industry has historically been very effective at improving the quality of necessary technology while decreasing its cost," he said. Sessions said the estimate by the automakers' expert witness, that more fuel efficiency would cost consumers $5,000 per car, was inflated because he had not considered these already available technologies.

For more please see Beyond the Barrel.

December 5, 2007

Virginia Supreme Court Says Food Expert Witness Testimony Allowed in Wendy's Hamburger Lawsuit

In 2004 Clinton San Francisco and his wife, Jessie, sued Wendy's over what they said was a bad hamburger bought in Charleston. In 2006 Kanawha Circuit Judge Paul Zakaib said the doctor who treated Clinton and a food expert witness were not qualified to serve as experts in the case under state trial rules but the State Supreme Court justices handed down a recent decision saying that a jury can hear the expert witness testimony and decide whether or not it's credible.
The Charleston Daily Mail also reports:

Chief Justice Robin Davis said in a separately written opinion that she hoped the state's lower courts would take heed of the San Francisco decision.

"All too often this court is called upon to decide a case in which the trial court has been reluctant to permit an expert witness to testify despite the fact that the witness's credentials qualify him/her as an expert and the matters about which the expert is called to testify are both relevant and reliable to the case at hand," wrote Davis.

"Rather than freezing like a proverbial deer in the headlights, however, trial courts should be mindful that scientific evidence presented through expert witnesses is presumptively admissible."


December 4, 2007

Georgia Supreme Court Rules On Medical Malpractice Expert Witnesses

The Georgia Supreme Court decided last week in favor of tighter expert witness rules. Their 5-2 decision on the SB 3 provision (O.C.G.A. § 24-9-67.1(c)), is a rare defense victory in the state. Atlanta defense lawyer R. Page Powell Jr. says the state Supreme Court’s ruling is “a very fair, very reasonable threshold requirement for expert competency.” The ruling says that medical malpractice expert witnesses must have “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.” The Daily Report also writes:

The court hasn’t decided an unrelated state Supreme Court appeal, Mason v. Home Depot, S07A1486, challenging another part of the law establishing a more general rule that tightens standards for admission of expert testimony in all civil cases. That rule is sometimes known as the Daubert rule for the 1993 U.S. Supreme Court case to which federal rule makers responded in crafting a similar, but not identical, rule of evidence.

December 3, 2007

Expert Witnesses' Crucial Role in Litigation #14

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 that testimony is based on science.

Contrary to what many believe, expert testimony in litigation is not always based on rigorous quantitative analysis of the data involved in a case. Too often, we hve seen experts provide analysis that does not scientifically demonstrate the validity of their claims.

For example, we were recently contacted by a lawyer seeking an industry expert who could opine on the impact that a particular song on a CD had in influencing sales of that CD. We stressed that the question should be addressed in a scientifically rigourous way, and therefore the client decided to retain an economist. The plaintiff side retained an industry expert who formulated an opinion based solely on her experience, not on science. Her testimony was stricken on a Daubert challenge and consequently the plaintiff could not present damages testimony at trial.


Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007