Expert Witness Blog

In When the Going Gets Tough – Analyzing Concurrent Delays, Thelen Reid's Andrew D. Ness writes that "Proving or disproving a construction delay claim is a substantial undertaking in the best of circumstances. But the analysis of construction delays takes a major leap in difficulty when there are multiple sources or causes of delay with interrelated effects." The construction expert witness can opine on what Ness describes as:

One Activity – Multiple Delays

The most straightforward situation involving multiple sources of delay occurs when there are two separate causes of delay to a single work activity. For example, an owner-directed change may have caused a particular activity to be less efficient while at the same time the contractor may have used a smaller crew or less efficient equipment than planned to perform the work. How then is the extended duration of the activity to be apportioned between owner and contractor? Almost every impact claim contains issues of this nature. It may seem apparent that the owner-directed change had an adverse effect on the time to perform a particular activity, but whether the impact was substantial or insignificant is debatable, and it is a challenge for either side to quantify the effect specifically.

When working with an inexperienced expert witness, they will need to be prepared for deposition the same as a lay witness. For example, the equipment and machinery expert witness working on your case will be conversant in their field but will need to know that:

They are under oath.

They need to understand questions before answering.

They should not talk over someone else as the transcriber cannot follow.

All parties will be reviewing the transcript.

In Finding a Remedy For Renters, security expert witness John a. Harris writes:

In most inadequate-security suits, then, the first step in establishing foreseeability is to examine the criminal history of the property. Review reports of calls for police service to find how many residents reported crimes on the premises and in the immediate vicinity, when and where those crimes occurred, and their similarity or other relationship to the crime involving your client. Reported burglaries are important because future burglaries may lead to assaults against people in the apartment."

After examining the calls for service, obtain police incident reports for those that appear most pertinent. Police reports will yield more detail, including a narrative by the responding officer.

DNA expert witness Dan E. Krane of Forensic Bioinformatics, Inc. on scientific evidence:

What makes scientific evidence so powerful in court is very simple: it’s supposed to be scientific. That means that it is supposed to be objective and completely independent of the subject of an investigation (a suspect or a defendant). It is therefore absolutely shocking that DNA testing laboratories routinely put themselves in a situation where specific information about a subject’s DNA profile might influence their interpretation of an evidence sample.

Last December, eleven prominent experts from around the US and even Scotland met in Washington, DC to discuss the problem of examiner bias/context effect in DNA profiling. Given the breadth of expertise and roles of these experts it surprised many of us that we were able to not only agree about the magnitude and nature of the problem, but also to a solution. The result was the generation of a position paper that has been published in this month’s Journal of Forensic Sciences.

Our bold and surprisingly controversial recommendation is the essence of simplicity: analysts should interpret evidence samples, at least initially, without any knowledge of the DNA profile of any suspects being investigated. Arguments to the contrary are ludicrous and are generally equivalent to a student demanding to see an answer key prior to taking an exam because that makes it so much easier for them to come up with the right solutions. Information about a suspect’s DNA profile does help with the interpretation of evidence samples in the resolution of surprisingly common ambiguities that lend themselves to a variety of alternative interpretations. But, using a defendant’s profile in that way is unequivocally wrong and invariably works to their disadvantage at the same time that it seriously undermines the scientific nature of the test.

Please help us spread the word that DNA profiles should always be interpreted objectively. More information about the authors of this position paper and the opportunities for subjective interpretation of DNA evidence is available at the Forensic Bioinformatics web site (www.bioforensics.com). It will also be a topic for discussion during our annual meeting coming up in just a few more weeks.

In Finding a Remedy For Renters, security expert witness John a. Harris writes:

When crime occurs in a residential apartment building, a security expert witness can help you evaluate whether the victim has a viable case against the property owner... Security is one of the foremost problems facing apartment-community owners because apartments have become prime targets for criminals in recent years. Criminals are often drawn to a particular property because they know the owner has not taken adequate security measures. Owners may give security a low priority, choosing instead to focus on "curb appeal"amenities such as landscaping, tennis courts, gyms, and swimming pools to attract and retain tenants...

Residents are often transient and thus less likely to know one another, visitors and delivery persons come and go at odd hours, and organizations such as Community Watch are more difficult to sustain because residents are not permanent. Frequently, young residents are living away from home for the first time and are naive about the possibility of crime. Also, residents may assume, often incorrectly, that the owner is providing adequate security because the property appears well maintained, well lit, and secure with gates and fences-and because the leasing agent indicated to the residents that the property was safe when they signed the lease. Despite these challenges, landlords must make security issues a top priority.

In Your Witness, Sam Adam shares eight lessons from a lifetime as a Cook County criminal lawyer.

1) Look at the trial itself as an entity rather than as a collection of witnesses. Remember that the ultimate purpose of cross-examination is to get those gold nuggets for closing argument. Know every fact about the case - and perhaps especially your opponent's case - before you plan your cross-examination. This should usually include viewing the scene. A well-prepared lawyer who has a superior knowledge of the facts has an enormous advantage going on.

Writing an article is one of the best educational marketing tools available to you as an expert witness. In deciding what topic about which to write, answer questions such as these in your article:

• What are the key issues in your field, and how should an expert be able to address them?
• What should an attorney know when they have a case in this area?
• What things should be sought in discovery? What documents or records should be requested?
• Are there chain-of-custody issues? Sequencing issues? Scope of work issues?
• What standards of care should be used?
• What potential defendants should be identified?

In addition, make it easy for attorneys to know what questions to ask when retaining an expert, and provide information in your article that will lead them to contacting you (without making direct references to yourself). Some questions you could provide answers to include:

• Are their specific experiences an expert in your field should have?
• Is there specialized training the expert should have in this area?
• Are there specific organizations to which the expert should belong?
• Are there certain designation or certificates an expert should have?
• Should the expert have published in this area?
• Are there “specialist” designations in your field of which an attorney should know?
• How is an expert in your field licensed? Is the license good for all 50 states? Are there a certain number of years of education one must complete?
• Are there common misconceptions in your field? For example, some attorneys might not realize that a chiropractor is not necessarily a medical doctor.
• What should competent experts in your field be able to do? Site inspections? Examinations? Create exhibits? Record review?
• What type of expert should an attorney avoid?

Attorneys will likely save such articles that answer these questions, and use them for future reference.

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert's Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes on Medical Court Testimony: The Plan of Attack:

Teaching the expert how to avoid pitfalls
The attorney needs to ensure that the expert understands the tricks that the other attorney may use. He needs to teach the expert, if necessary. This should be a given, but many “expert consultants” are not experts in the medicolegal side, though they know a great deal about their expertise. These are examples of pitfalls that the expert should be aware of during cross-examination:

5. The taking the expert out of his / her area of expertise.

6. The minimal misquoting of information.

7. The misinterpretation of data.

8. The attempt to effectively allow another witness to testify by quoting him.

9. The consolidation of the other side’s witness by making him / her sound great by the expert.

10. The quoting of something said by the expert that contradicts what (s)he may be arguing.

11. The use of wrong time periods based on general questions. The global quoting of a result without taking specifics into account.

In So when do we get it over with and declare Google a monopoly?
, Charles Cooper on CNet.com quotes antitrust expert witness Richard Schmalensee, of MIT's Sloan School of Management.
'There are the standard numbers people throw around but I think most people would say you have to decide whether search ad is a market for antitrust proposes. If it is, that's a high enough share. But you also have to look at issues of entry and issues of fragility. How stable is that share and how intense is that market,' Schmalensee said.

'There's no magic threshold but with high share levels, you get to be concerned,' he continued. 'On the other hand, monopolists are allowed to compete. The question is whether the arrangement would stifle competition.'

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert's Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes on Medical Court Testimony: The Plan of Attack:

Teaching the expert how to avoid pitfalls
The attorney needs to ensure that the expert understands the tricks that the other attorney may use. He needs to teach the expert, if necessary. This should be a given, but many “expert consultants” are not experts in the medicolegal side, though they know a great deal about their expertise. These are examples of pitfalls that the expert should be aware of during cross-examination:

1. The compound question.

2. The hypothetical question.

3. The non-differentiation of quantified information which may or may not require standardized testing. For example, history-taking is often amplified indirectly via written or computerized questionnaires : This is a legitimate clinical data acquisition technique, though not standardized for a population.

In contrast, many psychological tests require sample comparisons and specific standardized norms or even percentile scores, because individual responses are based on how others of the same age, sex and demographics would respond.

4. The demonstration to the jury of all the negative data in the evaluation (if defense) or positive data (if plaintiff). Prioritizing is critical.

PointofLaw.com on expert witness reform:

It's not as if the Bayou State regularly produces good news on lawsuit reform, but a new measure applauded by Fred Shumate, executive director of Louisiana Lawsuit Abuse Watch, sounds like an exception: S.B. 308 "would establish a uniform system for eliminating 'junk science' and nonexpert witnesses from the courtroom. ... This legislation is similar to laws passed recently in Georgia, Mississippi and Michigan, and is already being called a model for possible legislation in West Virginia."

The supply chain expert witness can opine on supply chain management, product distribution, returns management, and supply chain logistics. According to Wikipedia:

A typical supply chain begins with ecological and biological regulation of natural resources, followed by the human extraction of raw material and includes several production links, for instance; component construction, assembly and merging before moving onto several layers of storage facilities of ever decreasing size and ever more remote geographical locations, and finally reaching the consumer.

In sophisticated supply chain systems, used products may re-enter the supply chain at any point where residual value is recyclable. In the 1980s the term Supply Chain Management (SCM) was developed, to express the need to integrate the key business processes, from end user through original suppliers. Original suppliers being those that provide products, services and information that add value for customers and other stakeholders. The basic idea behind the SCM is that companies and corporations involve themselves in a supply chain by exchanging information regarding market fluctuations, production capabilities.

Insurance expert witness Guy Kornblum is author of Do Lawyers Really Understand What They Need to Do to Prepare For Mediation? After a recent Mediation Roundtable, here are Kornblum's thoughts concerning mediation:

What I heard shocked me: Lawyers don’t know how to prepare for a mediation, and most of the lawyers who attend mediations just are not doing a very good job. The mediators all explained the hurdles they had to overcome. (Their chief complaints were listed at www.expertwitnessblog.com 7/7/08 & 7/14/08)....

Since courts are sending many cases to mediation and parties seem more interested in participating, we need to be more mindful that clients need to be educated from day one about this important part of the litigation mechanism. While many courts require lawyers to inform their clients about this process at the outset, it seems that at least my mediator colleagues believe we need to pay more attention to, involve and educate our clients, and make this a part of the ongoing discussion of the case.

Expert testimony is permissible in a wide range of areas when the subject matter is beyond the knowledge and experience of the jury. For example, the medical expert witness's testimony is needed to establish if the appropriate standard of care was breached. In malpractice cases, the testimony of experts may establish that the professional failed to exercise appropriate skill. When prepping your medical expert witness, remember to advise him that he has the right to not respond when asked questions that are beyond the scope of his assignment.

Insurance expert witness Guy Kornblum is author of Do Lawyers Really Understand What They Need to Do to Prepare For Mediation? After a recent Mediation Roundtable, here are Kornblum's thoughts concerning mediation:

What I heard shocked me: Lawyers don’t know how to prepare for a mediation, and most of the lawyers who attend mediations just are not doing a very good job. The mediators all explained the hurdles they had to overcome. (Their chief complaints were listed at www.expertwitnessblog.com 7/7/08 & 7/14/08)....

In my experience, the “mediation process” begins when the client first meets with our lawyers and staff to discuss the case. It is important for us to factor in mediation as part of the Litigation Management Plan, and make it an event in the process of representing the client just like a deposition or hearing on a key motion. We discuss mediation as a way of testing the case as well as posturing it for resolution. We also advise the client how a mediation works, what its advantages are, and alert the client to mediation as part of the evolution of the case – a main event for which we will prepare just like we prepare for trial. I also stress that our advocacy is not comprised by our participating in a mediation.

Indeed I tell clients (after I agree to take the case) that offering to mediate is a show of confidence and strength in our position, BUT that mediation involves looking realistically at the issues – liability, damages and collection of any judgment – and the costs of going to trial in comparison to the value of a settlement.

It is advisable to familiarize yourself with the views and opinions that your expert witness has expressed in previous cases for two reasons. 1) Earlier opinions may serve to strengthen your case and 2) opposing counsel may ask the expert about these opinions. For example, the medical expert witness may have relevant experiments, exhibits, case studies, etc. from earlier cases that may affect their testimony. Questions you will ask on direct examination should be rehearsed with the expert and you may want an associate to cross-examine them. When dealing with difficult subject matter, have the expert review how he will explain technical concepts to the jury.

Insurance expert witness Guy Kornblum is author of Do Lawyers Really Understand What They Need to Do to Prepare For Mediation?

Recently I was invited by our local legal publication to be one of five persons on a Mediation Roundtable to discuss mediation techniques. We were interviewed by a moderator on various topics about mediation. I was the only lawyer in private practice on the panel. The others were all mediators, three were lawyers who are now doing full time mediation and the other was a retired trial court judge who for the last seven years has been mediating privately with a local service.

What I heard shocked me: Lawyers don’t know how to prepare for a mediation, and most of the lawyers who attend mediations just are not doing a very good job. The mediators all explained the hurdles they had to overcome. Their chief complaints could be listed as follows:

6) The lawyers have not discussed mediation as an alternative to trial – i.e., the “present value” of money (i.e., a settlement) versus the uncertainty of a recovery in the future;

7) The client believes that the mediator is going to decide something and does not understand the role that the mediator plays as a neutral.

8) The mediators spend too much time (one said 30%) of the initial time doing what the lawyers should have done to educate the clients;

9) The lawyer is impatient with the process, so the client is as well.

When your expert witness's work is very detailed and not amenable to oral argument, a report may be useful. For example, the multimedia expert witness may be asked to opine on text, audio, still images, animation, video, and/or electronic media devices. Since multimedia involves the convergence of text, pictures, video, and sound into a single form, conveying content and information to a jury about multiple forms may not lend itself to oral argument. A possible solution is to convert the expert's testimony into a report that may be presented in an electronic format to be used as a presentation in court.

Landlord/tenant expert witness Robert Griswold offers this advice to a tenant regarding fencing:

I would advise your landlord to take responsibility and properly replace the fence. Of course, your landlord cannot force you to repair or replace the wooden fence, as it is part of the premises that he is responsible for maintaining. Not doing so puts him at increased risk for injury claims and may cause problems with his insurance carrier if it inspects the property...

I wouldn't advise you to withhold rent. Communicate with your neighbors, as I am sure you are not the only one concerned. Perhaps you can coordinate with the other residents and the landlord to work out this problem. Perhaps the costs for repair and replacement could be shared between the landlord and some of the residents through a community garage sale or other similar event. Clearly, a new fence is in everyone's best interest.

In preparing your expert for trial, it helps to have a checklist. In fact, the expert will likely appreciate a copy of the checklist as well. For example, the checklist for your nephrology expert witness might include but is not limited to:

His qualifications
A description of the expert's assignment
List of materials the expert should review
List of what the expert should bring to trial
Explanations for inconsistencies
Description of work performed
How expert will explain technical material to court
How he will answer direct examination
Compensation