February 29, 2008

Accounting Expert Witness Opines on San Francisco Bay Guardian Case

The San Franciso Bay Guardian reports:
An expert witness for the SF Weekly put a bunch of charts before the jury Friday, trying to undermine the Guardian’s predatory pricing case – but every one of the charts seemed to prove exactly what we’ve been trying to say.

The Guardian is suing the Weekly and its corporate parent, Village Voice Media, for predatory pricing. The claim is that the 16-paper chain poured millions into propping up the San Francisco paper, which for 12 years has lost money while it sold ads below the cost of producing them. That, we argue, was done to harm the locally owned competitor.

Clifford Kupperberg, the Guardian’s accounting expert witness put the damages at between $5 million and $11 million.

February 28, 2008

Distribution & Dealers Expert Witness Shares Top Ten Mistakes To Avoid With Distributor Agreements - Part 4

In Avoiding the Top 10 Mistakes with Distributor Agreements, Glen Balzer, management and forensic consultant and expert witness in domestic and international marketing and sales, shares a checklist of ten common mistakes to avoid when drafting your next distributor agreement. Mistake #4 is entitled Exclusive or Nonexclusive.

Distributor franchises may be either exclusive, where there will be no other distributor franchised in the territory; or nonexclusive, where the new distributor might be one of several distributors franchised in the territory. Distributors sometimes make an appeal for an exclusive territory, arguing that without an exclusive territory, the distributor has no incentive to allocate adequate resources toward development of sales for the manufacturer. Once a supplier agrees to an exclusive territory, it forfeits the opportunity, for a period, to franchise an additional distributor. Assignment of an exclusive distributor in a territory represents an unnecessary leap of faith on the part of the supplier. One alternative to assigning an exclusive territory is to draft the distribution agreement in such a way that the distributor is nonexclusive, but to franchise only one distributor. A verbal understanding would suggest that if a supplier's objectives were met, no additional distributor would be added to the nonexclusive territory. Such an arrangement provides encouragement for the distributor to perform without restricting options of the manufacturer.

Glen Balzer, President of New Era Consulting, can be reached at glen@neweraconsulting.com.

February 27, 2008

How Jury Consultant Expert Witnesses Can Improve Your Trial Strategy Part 2

In Jury Psychology Can Undermine Plaintiffs' Expert Witnesses authors Neil Goldberg, John Freedenberg, Joseph Mooney, and Joseph Hanna write that cross examination of plaintiff's expert witness should be geared to thwart the emotional hijacking of jurors that plaintiffs endeavor to secure. This strategy includes hiring a jury consultant expert witness. In this excerpt they explain the role of jurors in analyzing the credibility of expert witnesses:

Even before the Enron scandal, a survey found "that a majority of jurors are predisposed to believe an individual's version of events in any dispute with a corporation." The Wall Street Journal, Nov. 13, 1991 at B5. After the litany of scandals that followed Enron, the problem was compounded. The Wall Street Journal verified what many trial lawyers have recognized; increasingly we are confronted with a "new class of jurors."

The members of this class have been displaced by economic chaos - environmental disasters, and "down-sizing" - and they are now feeling insecure, vulnerable and bitter. They blame, among others, Corporate America for their plight. These individuals contribute sigificantly to the volatility of jury verdicts.


Excerpted from Jury Psychology Can Undermine Plaintiffs' Expert Witnesses, For the Defense, December 2007.

February 26, 2008

Distribution & Dealers Expert Witness Shares Top Ten Mistakes To Avoid With Distributor Agreements - Part 3

In Avoiding the Top 10 Mistakes with Distributor Agreements, Glen Balzer, management and forensic consultant and expert witness in domestic and international marketing and sales, shares a checklist of ten common mistakes to avoid when drafting your next distributor agreement. Mistake #3 is entitled Annual Termination and Semiautomatic Renewal.

Parties that are inexperienced with distributor agreements sometimes attempt to minimize the opportunity for termination. Calling for annual termination and semiautomatic renewal is a routine procedure among experienced players. In theses cases, there is a provision in the agreement calling for termination of the agreement at the end of the first full calendar year after the agreement is placed in effect, and each year thereafter. Terms and conditions allow either party to submit a Notice of Intention to Not Renew 30 days prior to the end of the calendar year.

When annual termination and semiautomatic renewal is written into the agreement, both parties have the opportunity to exit the agreement, without proving cause, once per year. The partnership is held together, using this methodology, by performance and not with a collection of words in the agreement. Experienced partners always prefer to have performance as the binding force in the partnership.


Glen Balzer, President of New Era Consulting, can be reached at glen@neweraconsulting.com.

February 25, 2008

Life Care Planning Expert Witnesses Crucial In Proving General Damages - Part 2

In Using Vocational Rehab Experts and Life-Care Planners to Prove General Damages, author Geoffrey S. Wells discusses the use of vocational rehabilitation and life-care planning experts. He begins by telling us that the use of a vocational rehabilitation expert and a life care planning expert witness is even more important today than it has been in the past.

The use of a vocational rehabilitation expert should be implemented anytime your clients have permanent injuries that either impair their ability to do their old jobs or impair their ability to do any job. One of the most importatnt aspects of a good vocational rehabilitation plan is assessing the loss of earning capacity. The loss of earning capacitiy is not just the loss of a particular job, but it is the inability to be able to earn what a person would have been capable of earning had he or she never been hurt. Many defense lawyers gloss over the lost earning capacity component of the vocational rehabiliation plan. I think it is very improtant that the jury understands through the testimony of your expert the whole issue of lost earning capapcity.

More to follow from The Advocate, November 2007.

February 24, 2008

Crime Scene Analysis Expert Witnesses Testify in Reiser Murder Case

The trial of Hans Reiser, a 44-year-old Oakland, Calif. computer programmer accused of killing his wife, has become "stranger than fiction." Reiser's prominence in developer circles as the founder of the ReiserFS file system software available for Linux, the fact that the body of his estranged wife has never been recovered, and national TV coverage, all add to the drama. Crime scene analysis expert witnesses have testified about biological and trace evidence found, suggesting Nina Reiser is dead, and also tying her husband to the death. Beverly Parr, a psychiatry expert witness who has known Reiser since he was a toddler, testified for the defense that he showed all the signs of having Asperger's syndrome, which is marked by impaired social skills and a fixation on things. News.com reports that Hans Reiser's defense portrays:

...his estranged wife Nina Reiser as an adulteress and a possible embezzler. Hans Reiser has long suggested that Nina Reiser might not be dead after all, but could be hiding in her native Russia after stealing money from her husband's former company Namesys. The couple's 8-year-old son and 6-year-old daughter now live with their maternal grandmother in St. Petersburg, Russia.

February 23, 2008

Life Care Planning Expert Witnesses Crucial To Prove General Damages

In Using Vocational Rehab Experts and Life-Care Planners to Prove General Damages, author Geoffrey S. Wells discusses the use of vocational rehabilitation and life-care planning experts. He begins by telling us that the use of a vocational rehabilitation expert and a life care planning expert witness is even more important today than it has been in the past.

This is due in part to the jury's overall skepticisim on general damage awards. It is not uncommon today to hear a juror during jury selection say something to the effect that "I have no problem awarding damages that are actually provable, such as lost wages or medical costs in the past and the future, but I have a real problem with pain and suffering damages." The plainfiff lawyer's ability therefore to provide actual economic numbers for the jurors is more important today than it has ever been in the past.

More to follow from The Advocate, November 2007.

February 22, 2008

Transplant Organ/Donor Expert Witnesses to Testify in Organ Harvest Case

Transplant surgeon Dr. Hootan Roozrokh of San Francisco is charged with three felonies alleging he attempted to hasten the death of a potential organ donor, 25-year-old Ruben Navarro. In the San Luis Obispo trial, County prosecutor Karen Gray has yet to reveal the names of transplants - organ/donor expert witnesses she plans to call who are coming from out of town. Roozrokh’s attorney, M. Gerald Schwartzbach, threatened to ask for delays throughout the preliminary hearing because he says that without an expert witness list, he hasn’t been able to prepare the defense‘s case. A delay would cause scheduling problems for Gray and Superior Court Judge Martin Tangeman, who both have other criminal and civil court proceedings on the calendar. San Luis Obispo.com also writes:

A visibly frustrated Tangeman said no one should assume anything about how the preliminary hearing will proceed. He told Gray that not knowing the witnesses’ names and tentative timeline for the prosecution case has become “horribly problematic.”

February 21, 2008

Pollution Expert Witnesses to Opine on Illinois River

Oklahoma Attorney General Drew Edmondson told a federal judge in Tulsa that the poultry industry has "infested” waterways in northeastern Oklahoma with pollution that is a risk to the public's health. The state is seeking an injunction from Federal Judge Gregory K. Frizzell barring the spread of poultry litter in the million-acres Illinois River watershed that stretches from northwest Arkansas through northeast Oklahoma.

According to NewOK.com, opening statements in the hearing were delayed as attorneys wrangled over three motions that involved the expected testimony of pollution expert witnesses and the state's request to eliminate some data prepared by one of its witnesses. Edmondson outlined the state's case and the list of expert witnesses it expects to call over the three days that Judge Frizzell has given it to make its case. Next will come the poultry industry defense.

February 20, 2008

How Jury Consultant Expert Witnesses Can Improve Your Trial Strategy

In Jury Psychology Can Undermine Plaintiffs' Expert Witnesses authors Neil Goldberg, John Freedenberg, Joseph Mooney, and Joseph Hanna write that cross examination of plaintiff's expert witness should be geared to thwart the emotional hijacking of jurors that plaintiffs endeavor to secure. This strategy includes hiring a jury consultant expert witness. They explain:

Most trial attorneys are familiar with the Chicago study that found that 85 percent of jurors vote after deliberation in a manner consistent with the impressions they developed after the opening statements. A study conducted by Angela Abel of Decision Quest distributed at DRI's 2006 Preeminent Trial Lawyer Seminar found that the ultimate evaluation a juror reaches in a case on both liability and damages essentially remained unchanged by the voir dire process. One interpretation of these two poignant nuggets of information is that at the moment of accountability, when many jurors engage in the deliberation process, the critical factor that most significantly influences how they analyze the case is their longstanding predispositions.
Determining what those longstanding predispositions are and what themes will influence jurors the most are reasons defendants in catastrophic injury cases more and more find that there is great value in engaging in "mock jury" exercises.

Excerpted from Jury Psychology Can Undermine Plaintiffs' Expert Witnesses, For the Defense, December 2007.

February 19, 2008

Working With Your Products Liability Expert Witness

In How to Use Experts to Prove the Plaintiff's Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations such as products liability cases Demsey states that "Too often the initial consideration is not well thought-out." Demsey gives tips on lines of communication with your products liability expert witness.

....experts often become, or give the appearance of, advocates for your position. This will also detract from the wtiness's impartial credibililty and is easily picked up by a jury. Your expert should be willing to concede to points that are well taken during cross-examination because this adds to his or her credibility. During the rehearsal of testimony, however, you must emphasize that the main thrust of yor expert's opinion must be consistency, and he or she must have the courage to stand by their opinions no matter the vigor of the cross-examination or the onslaught of deeming questions. This is the true test of the ability of an expert to testify and clearly separates the "wannabes" from the "real deal."

From How to Use Experts to Prove the Plaintiff's Case, Thomas M. Dempsey, The Advocate Magazine, January 2008.

February 18, 2008

Pathology Expert Witnesses Testify in Jensen Trial

Mark Jensen, 48, of Pleasant Prairie, WI, is accused of poisoning and suffocating his wife Julie Jensen, 40. Dr. Barry Rumack, a medical toxicologist and former director of the Rocky Mountain Poison and Drug Center in Denver, testified as a poison expert witness that he read many of the prosecution experts' reports and believes Julie Jensen committed suicide. Pathology expert witness John Scott Denton backed up Rumack's testimony. Denton has handled dozens of ethylene glycol deaths.

The prosecution called computer expert witness Martin Koch. Koch showed the Internet history on the Jensen's computer, which included a number pornagraphic Web sites which had been deleted by the user days before Julie Jensen died.

February 17, 2008

Medical Expert Witnesses Central to Hazing Case

Chico State students Chris Bizot and Mike Murphy and Butte College student Matthew Krupp face charges for hazing pledges in 2007. All three belonged to Beta Theta Pi, a fraternity that lost university and international recognition after the police were contacted about hazing activities. Bizot's lawyer, Bill Mayo has requested the names of medical expert witnesses used in the prosecution's argument saying he wants time to bring in his own expert witnesses to argue for the defense. OrionOnline.com also reports:

Krupp, Murphy and Bizot allegedly forced pledges to submerge themselves to their necks in a bathtub filled with ice water, locked them in a stairwell closet, threw beer and "other disgusting things" at them and forced them to run through mud and do calisthenics, District Attorney Mike Ramsey said....Although these activities may be humiliating, there was no risk of serious bodily injury and they can't be considered hazing under the current definition, Mayo said..."It's a new case, it's a new law and these guys are really trying to stretch it and make the shoe fit," Mayo said.

February 16, 2008

Surgery Expert Witness Needed in Aggravated Sexual Assault Case

Vermont prosecutors say they need more time to find an expert witness to testify against a Colchester orthopedic surgeon charged with performing improper examinations on nine young female patients. According to WPTZ.com:

Joseph Abate, head of sports medicine at Fletcher Allen Health Care's orthopedic and rehabilitation department, is facing 14 felony charges from aggravated sexual assault to lewd and lascivious conduct. Assistant Attorney General Cindy Maguire said the surgery expert witness the state had lined up to question Abate's examinations now could not testify. Abate's lawyer, Eric Miller, who has called the charges a "tragic mistake," said the state's case is falling apart.

Despite his objections, the judge on Monday gave state prosecutors 60 days to find replacement expert witnesses.

February 15, 2008

Alcohol, Drug & DUI Testing Expert Witnesses Can Save Clients

Alcohol, Drug & DUI Testing expert witnesses can save clients in a DWI case and they would not have easy access to these expert witnesses without the criminal defense attorney. If the client chooses a public defender, they will not get the best possible defense. American Chronicle.com writes on the advantages of hiring an experienced criminal lawyer.

Public defenders, no matter how experienced they are, are only Jack of all trades. It means they handle all sorts of cases and not specific ones that need to specialized skills. They do not have specialization in handling DWI cases... You would want the best possible defense for your case, and this is possible only if you hire a specialized DWI legal professional...When you hire a DWI legal representative, you get an opportunity to take advantage of their specialized knowledge of the various aspects associated with DWI cases. They know the in and out of the DWI laws and they can easily use the same to handle your specific case in the most efficient

February 14, 2008

Must Plaintiff Have Automotive Expert Witness in Lemon Law Cases?

Maryland's highest court is deciding whether a consumer suing a car company under the federal lemon law needs an expert witness to testify about a defect in the car. Mary Crickenberger, represented by Kimmel & Silverman, says she had numerous electrical problems with her Hyundai in the three years after she bought it, with the car sputtering to a stop one day. Hyundai filed a motion to exclude Kimmel & Silverman’s automotive expert witness. Kimmel & Silverman withdrew the expert but did not substitute another. The Maryland Daily Record also reports:

The defendant, Hyundai Motor America, wants the court to hold that not only did Kimmel & Silverman need an expert in plaintiff Mary S. Crickenberger’s case, but that the firm must show a defect in Crickenberger’s case and all of the firm’s other cases...

A group called the Product Liability Advisory Council Inc., which represents manufacturers, filed an amicus curiae brief in the case, arguing that permitting Kimmel & Silverman to pursue lemon-law cases without requiring expert testimony will drastically alter the landscape of product-liability law.

February 13, 2008

Quantanamo Accused Are Guaranteed Terrorism Expert Witnesses Under Military Law

The Defense Department announced Monday that charges have been sworn against six detainees at Guantanamo, alleged to be responsible for the planning and execution of the attacks upon the United States of America which occurred on Sept. 11, 2001. Those attacks resulted in the death of nearly 3,000 people. The charges allege a long term, highly sophisticated, organized plan by al Qaeda to attack the United States. Under the Military Commissions Act the defendants are guaranteed the right to obtain evidence and to call witnesses on his own behalf including terrorism expert witnesses.

The accused are: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohamed al Kahtani. Each of the defendants is charged with conspiracy and the separate, substantive offenses of: murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism. The first four defendants, Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin ‘Attash, Ramzi Binalshibh, and Ali Abdul Aziz Ali are also charged with the substantive offense of hijacking or hazarding a vessel.

In the military commissions process, every defendant has the following rights: The right to remain silent and to have no adverse inference drawn from it; the right to be represented by detailed military counsel, as well as civilian counsel of his own selection and at no expense to the government; the right to examine all evidence used against him by the prosecution; the right to obtain evidence and to call witnesses on his own behalf including expert witnesses; the right to cross-examine every witness called by the prosecution; the right to be present during the presentation of evidence; the right to have a military commission panel of at least five military members determine his guilt by a 2/3 majority, or in the case of a capital offense, a unanimous decision of a military commission composed of at least 12 members; and the right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court.

These rights are guaranteed to the defendant under the Military Commissions Act, and are specifically designed to ensure that every defendant receives a fair trial, consistent with American and international standards of justice and the rule of law.


For more, see http://www.defenselink.mil/releases/release.aspx?releaseid=11682.

February 12, 2008

Physical Medicine and Rehabilitation Expert Witness Opines on Faked Car Accident

Gary Dodds, a former New Hampshire congressional candidate, is accused of faking his disappearance after a car crash in April 2006 in a plot to attract attention to his campaign. Dodds claims he wandered away dazed from the car accident with a head injury, crossed a river and collapsed but Murray Hamlet, a phycial medicine and rehabilitation expert witness who specializes in cold weather injuries testified that the damage to Gary Dodds' feet was far more severe than what he would have suffered from crossing a river and spending the night outdoors.

Expert witness Murray Hamlet, a veterinarian and retired Army officer who spent decades studying cold weather injuries and training military and medical personnel on the subject said that based on Dodds' medical records and reports from those who examined him, Dodds' foot injuries were more serious than what one would expect given the scenario he described. Boston.com also reports that "Dodds faces up to seven years in prison if convicted of falsifying evidence, creating false public alarm and leaving the scene of the crash. He continued campaigning after the crash but came in third in the four-way Democratic primary."

February 11, 2008

How Attorneys Can Best Utilize Their Medical Expert Witnesses #9

n 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 computerized materials.

Experts’ styles vary. For example, my specific preferences may not be generalizable, particularly if the expert is not very computer savvy. Personally, I like to summarize information as I read it, extracting key information. This I will do digitally by dictation, generally referencing dates, pages and medical professionals. This saves enormous time in reviewing cases later. I also like to use text documents (e.g. in Microsoft Word). This allows me to fashion the detail and extract what is relevant without wasting time rewriting.

In this regard, scanning by the attorney is worthwhile, particularly if text (as opposed to pictures [e.g. TIFF, PICT]) is produced. This text is editable in summary documents, and can be searched almost instantaneously. It becomes a great time saver. Depositions should always be ordered in text form so they can have the relevant facets extracted. Hard copies should also be available. The attorney should ensure that the expert knows what has been duplicated on CD and paper. However, scanned computerized material supplied as PDFs that cannot be converted into text has an enormous downside of taking up time in locating particular pages. Consequently, an index is essential for any scanned non-text documents, and additionally
duplicate hard copies of the text are valuable.


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

February 9, 2008

Statistics Expert Witness Aids Human Rights Prosecution

Patrick Ball was the first expert witness called in the case against the former Serbian president, who was representing himself against mass atrocity charges at the International Criminal Tribunal for Yugoslavia. The statistics expert witness spent 10 months crunching numbers about migration patterns in Kosovo. Ball's findings suggested that hundreds of thousands of refugees who fled to Albania were spurred by the violence of Mr. Milosevic's army. CSMonitor.com also writes:

When the analysis showed the movements were neither random nor likely to follow NATO or KLA activities, Ball wrote: "The migration patterns of Kosovar Albanians are consistent with the hypothesis that there was a coordinated and organized effort to drive them from their homes." In layman's terms, the data suggested ethnic cleansing. In fact, the migration patterns matched killing patterns "so unbelievably perfectly" that he concluded that the two situations might be explained by the same external influence.

Ball also wrote software that allowed a human rights commission to aggregate and analyze the human rights records of officers in the El Salvadoran Army. The results forced a quarter of the military leadership to retire. He has also worked on finding ways to uncover the scale and pattern of human rights violations in South Africa, Haiti, Guatemala, East Timor, and Peru.

February 8, 2008

Terrorism Expert Witnesses Will Testify Against Former Lobbyists

Former lobbyists for the American Israel Public Affairs Committee Steve Rosen and Keith Weissman are charged with passing classified information. The government has hired three expert witnesses to show that the former lobbyists broke the law and exposed America to a national security threat. The first terroism expert witness is Dale Watson, who headed the FBI’s counter-terrorism operation until 2002, was in charge of investigating early Al Qaeda attacks against the United States in Saudi Arabia, as well as the bombing of American embassies in Kenya and Tanzania and the assault on the USS Cole in Yemen. Forward.com also writes:

While details of what Watson will be asked to testify about were kept under seal, sources following the case said that he will be asked about the importance of the information given to Rosen and Weissman in terms of fighting the war against terror.

Another expert witness who will be called by the prosecution is William McNair, the former information review officer for the CIA’s directorate of operations. McNair, who retired in 2003, was the CIA’s lead official in dealing with issues regarding the release of classified information. He appeared many times in court, opposing requests based on the Freedom of Information Act. According to press reports, McNair was one of only a few officials within the agency who had access to all classified documents.

The third witness the government intends to call is Paul Dettmer, assistant deputy chief of staff for the U.S. Air Force’s Department of Intelligence, Surveillance and Reconnaissance. All three expert witnesses are expected to be part of the prosecution’s attempt to prove that information communicated by the defendants was “potentially damaging to national security” and “closely held.” This was the bar set by the judge in the case, T.S. Ellis III. The witnesses, each of them an expert in the field of intelligence, will be asked for their views about the importance and classification level of the information.


February 7, 2008

Software Expert Witnesses to Testify in Oracle Case

Oracle says it may file an amended complaint alleging what its attorneys are calling "a broader program of copyright infringement" by SAP (Systems Applications and Products in Data Processing) beyond the allegations it has already made against SAPs subsidiary TomorrowNow. Oracle discovered some TomorrowNow employees were downloading Oracle customer files and claims SAP violated the Federal Computer Fraud and Abuse Act as well as the California Computer Data Access and Fraud Act. Both sides are limited to three software expert witnesses in the case. The internetnews.com also reports:

SAP acknowledged that some TomorrowNow employees were guilty of some "inappropriate" downloads but dismissed the vast majority of Oracle's allegations. In November, SAP announced that TomorrowNow CEO Andrew Nelson and other senior executives had resigned and that it was considering a number of strategic options, including the possible sale of services subsidiary.

Ahead of next week's case management hearing, Judge Jenkins gave both sides a limit of 20 depositions, 150 document requests, three expert witnesses to evaluate forensic evidence and determine potential damages and an August 8 deadline to submit its expert disclosure reports. He also said the last day he will hear pre-trial motions will be November 13.


February 6, 2008

Get the Most From Your Medical Malpractice Expert Witness

In How to Use Experts to Prove the Plaintiff's Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations Demsey states that "Too often the initial consideration is not well thought-out." Finding the right medical malpractice expert witness involves optimizing lines of communication.

Make sure you go over in detail the theories of your case about which your expert will testify. Success often relies upon you laying out precise legal language for your case so that your expert can phrase his or her testimony accordingly.

Make sure that your expert does not go beyond the realm of his or her area of expertise. This means that you may need multiple experts to deal with a particular issue. It is better to have two creditable experts whose testimony may somewhat overlap, than to have one expert who is so stretching the limit so his or her expertise that even in the areas in which he or she is comfortable are suspect and not believable.


From How to Use Experts to Prove the Plaintiff's Case, Thomas M. Dempsey, The Advocate Magazine, January 2008. Mr. Dempsey is past president of Consumer Attorneys of Los Angeles.

February 5, 2008

Hiring the Right Products Liability Expert Witness

In How to Use Experts to Prove the Plaintiff's Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations such as products liability cases Demsey states that "Too often the initial consideration is not well thought-out." Finding the right products liability expert witness involves asking for recommendations from other attorneys and making sure you can afford the expert.

Not only must the expert be available for consultation and advice during the discovery part of your csae, but you should not feel that you cannot afford to seek this consultation when it is necessary. This does not mean you are constantly running to the individual for consultation on trivial matters, but you must be able to contact this person whenever the need truly arises.

Sometimes an expert will not be able to testify for you, but that same expert can lead you to others who would be able to testify in your case. Furthermore, an expert can be used as a consultant, and this alone is often worth the time, effort and expense of consulting an expert.


From How to Use Experts to Prove the Plaintiff's Case, Thomas M. Dempsey, The Advocate Magazine, January 2008.

February 4, 2008

Find the Right Medical Malpractice Expert Witness

In How to Use Experts to Prove the Plaintiff's Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations such as medical malpractice cases Demsey states that "Too often the initial consideration is not well thought-out." Finding the right medical malpractice expert witness begins with meeting the expert.

This has several purposes, one of which is to evaluate this person's ability to analyze, communicate, and deal with adversity (e.g cross-examination). Make sure your theories and personality mesh with the expert. This is someone with whom you will be associated for the duration of the lawsuit, so it should be someone with whom you feel comfortable in approaching and discussing various aspects of the case. In addition, it will help you to know whether or not he or she will have the time and willingness to help you prepare and conduct your trial.

From How to Use Experts to Prove the Plaintiff's Case, Thomas M. Dempsey, The Advocate Magazine, January 2008.

February 3, 2008

Pediatrics Expert Witness Opines In Child Abuse Case

Dr. Joseph Maytal, expert witness and specialist at Schneider Children's Hospital on Long Island, testified Friday that an infant boy taken away from his parents amid allegations that he was shaken was not the victim of child abuse. "I think that we have enough here to at least doubt that there is child abuse," said the pediatrics expert witness. Dr. Maytal testified in St. George Family Court during the trial to determine whether Qundeel Sajjad and her husband, Sohail Sajjad, can regain custody of their two young boys from the city Administration for Children's Services. silive.com also reports:

Mrs. Sajjad, 31, was the first Islander to be accused under Cynthia's Law when prosecutors alleged that she violently shook her 7-month-old and caused him to be hospitalized with internal bleeding on the brain in December 2006. The mother of two and her husband claimed the infant fell 3 feet from a baby swing onto a hard kitchen floor....

Dr. Maytal, who reviewed the child's hospital and follow-up medical records, said the baby suffered from "external hydrocephalus," a condition that can cause bleeding on the brain in infants. "It means the child is susceptible to bleeding," Dr. Maytal said. 'Infants with external hydrocephalus] don't need to have a major trauma to have a subdural hematoma,' Dr. Maytal explained, noting that the baby's condition could have been the result of genetics rather than a violent shaking.


February 2, 2008

Distribution & Dealers Expert Witness Shares Top Ten Mistakes To Avoid With Distributor Agreements #2

In Avoiding the Top 10 Mistakes with Distributor Agreements, Glen Balzer, management and forensic consultant and expert witness in domestic and international marketing and sales, shares a checklist of ten common mistakes to avoid when drafting your next distributor agreement. Mistake #2 is entitled Termination for Cause Only.

Most distributor agreements involving seasoned distributors and manufacturers allow for termination for cause and termination for convenience, (or no cause at all). Less experienced partners sometimes attempt to allow for termination for a limited set of specific causes. Termination for cause is sometimes straightforward and without controversy, as when one partner declares bankruptcy. However, partners sometimes disagree over the presence of cause. Partners often disagree over responsibility for cause.

The best distributor agreements allow for termination for cause and for termination for convenience. When an agreement allows termination for convenience, a partner wishing to disengage from the agreement serves Notice of Termination to the other partner with 30 days notice. When the convenience clause is invoked, cause and responsibility for cause need not be argued. More important, the distributor agreement does not end in a legal skirmish. Without a legal confrontation, the distributor and manufacturer are able to focus on their respective customers and businesses without consuming management time, corporate focus and financial resources on attorneys, courts and arbitration.


Glen Balzer, President of New Era Consulting, can be reached at glen@neweraconsulting.com.

February 1, 2008

Boxer Claims Nevada Athletic Commission Tampered With Sports Medicine Expert

31-year-old boxer Joey Gilbert was temporarily suspended in October when the Nevada Athletic Commission announced his positive drug tests. Now Gilbert has filed a motion with the commission to remove its executive director, Keith Kizer, from all further involvement in his case. The commission says Gilbert tested positive for a steroid, amphetamine and three other drugs before and after a fight on Sept. 21. Gilbert alleges that Kizer tampered with a witness when he e-mailed Voy, a respected sports medicine expert witness and author of "Drugs, Sport and Politics" who had agreed to draft a response to the commission, specifically Kizer. RGJ.com also reports:

After receiving Kizer's e-mail, Voy informed Gilbert he would not complete the draft for him. 'Contacting our expert witness with an accusation and intimidating e-mail is beyond comprehension,' (Gilbert's attorney) Schopper said. 'I can't speak for Mr. Gilbert, but I think the unfairness with which he's proceeded against him in the media ... It's just appalling.' At the end of the motion, Gilbert offers a partial explanation for a number of positive tests. He reveals he had a prescription for Valium, a sleeping aid that can remain in the system for up to 42 days and that can metabolize into nordiazepam, temazepam and oxazepam, three of the initial six drugs Gilbert tested positive for.