Expert Witness Blog

In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on "Are good experts born, or can they be trained? In this excerpt, they write on addressing the jurors ‘heart to heart."

A third visual sign of a cooperative attitude is body orientation. A frontal orientation, where people face each other squarely, communicates interest in the interaction and a willingness to interact ‘heart to heart.’ A sideways orientation, when people literally "turn a cold shoulder" to others, indicates indifference or disinterest. And finally, when people leave the interaction, they literally "turn their back" on it, communicating their lack of interest in the other person.

Experts need to communicate clearly that they are involved in the courtroom interactions, so they will want to go out of their way to give a frontal orientation to those who address them. For instance, when addressed by the judge, it is preferable to actually turn in the chair in order to give a frontal orientation to answer the judge, instead of simply turning one’s head. When attorney clients address their experts, the experts will want to give the same frontal orientation. And even with opposing counsel, a frontal orientation is desirable because it communicates a sense of fairness and cooperation in seeking justice.

When addressing jurors, it is especially important for experts to turn in their chairs and meet the jurors ‘heart to heart.’ But this raises an interesting question: when should experts address the jury and when should they address the attorney who is asking the questions? Jurors are the more important audience, without doubt. On the other hand, experts can be perceived as rude if they ignore the person who is talking to them - i.e., friendly counsel.

This problem can be addressed by the attorney instructing his expert to "tell the jurors" the answer. Once the attorney gives the expert permission to answer to the jurors - then the expert has a justification for turning away from the attorney. This verbal prompt also establishes a pattern of behavior, so even when counsel does not give the expert the prompt, she can still turn to the jurors with her answers.

Insurance expert witness Barry Zalma and principal of Zalma Insurance Consultants writes that It is Necessary to Know Insurance to Fight Insurance Fraud.

According to the Coalition Against Insurance Fraud: “When it comes to insurance fraud, the United States is a world leader. We arguably have the most severe problem on the planet. But we also have the most sophisticated means of combating fraud. Our systems for detecting and investigating fraud are mature and much more robust than those in other developed nations.”

Although I agree with the Coalition that the ability to detect and investigate fraud is as useful as an arrest without a conviction. Detecting and investigating fraud is merely the beginning of the process. If the fraud investigators are not sufficiently trained about insurance, insurance contract interpretation, and civil defenses to attempts at insurance fraud it does not matter how robust and mature the ability to investigate and detect fraud. The mature and robust talents must be joined with civil defenses to fraud and the criminal prosecution of the perpetrators.

More to come from Zalma Insurance Consultants.

Marketing expert witness Gabriele Goldaper writes that there are BIG BUCKS IN STRIPES! She represented a leading sports apparel manufacturer which sought a declaratory judgment to allow them to continue to use stripes on their athletic apparel. The defendant took the position that stripes were a part of their trademarked logo and could not be used on any other sports apparel.

My position was that striping is used as an element of design to indicate motion and
action and no one can “own” the rights to an “element of design." Among the elements of design are: “shape”, the outline of the garment, “line”, indicating the direction of visual interest, straight lines are used to create moods and feelings and angled lines are used to suggest motion, “repetition” to create a sense of movement. A successful design is achieved when all the elements work together harmoniously. It was my opinion, supported, with documentation, that stripes, in the past and still today, are used to signal to consumers that a garment is for athletes or those wanting to look like athletes. Stripes have acquired this communicative function.

The Vancouver Sun reports:

neurosurgery expert witness Dr. George Stuart Cameron testified Thursday that whatever happened to brain-damaged Thomas McKay while in police cells was more than just a fall. "I would expect his head was traveling at a higher velocity than just a simple fall," said the expert.

McKay had a skull fracture over his left eye, extending across the top of his head. Cameron performed surgery to remove a blood clot formed underneath McKay's skull lying against his brain, part of an injury he agreed was life-threatening. McKay and his family say Victoria Police Constable Greg Smith pushed McKay while his hands were cuffed behind his back so that his head struck the concrete floor.

Marketing expert witness Gabriele Goldaper writes that there are BIG BUCKS IN STRIPES! She represented a leading sports apparel manufacturer which sought a declaratory judgment to allow them to
continue to use stripes on their athletic apparel. The defendant took the position that
stripes were a part of their trademarked logo and could not be used on any other sports
apparel. The particular logo at issue had three stripes, spaced evenly apart. The apparel
maker for whom she was rendering an opinion was using stripes, not three stripes and not
similarly evenly spaced apart for their line of athletic wear.

Goldaper argued that stripes have been used well before manufacturers were making sports related apparel. As an example we saw early in our history, slaves and prisoners clothed in garments with lots of horizontal stripes. She provided extensive information and documentation of examples to support her opinion that the use of stripes has been associated with sports and athletic apparel since the development of this category of clothing. In the Olympic games in the early twentieth century we saw runners and hurdlers, males and females, wearing shorts and tops with stripes on them. The use of stripes in athletic sportswear was seen well before either the plaintiff or defendants started to produce this category of clothing.

In Life-Care Planners Can Help Simplify Damages For The Jury, vocational evaluation expert witness and life care planner Ronald T Smolarski writes on to determine what care and how much money a chronically or catastrophically disabled individual will need for the rest of his or her life.

..based on current medical knowledge, the rehabilitation consultant strives to itemize everything the disabled person might need during his or her lifetime and to make the plan specific so the individual's needs are met. Cost is established using a two-step process. In the first step, a monetary sum that will compensate for actual loss and encompass all foreseeable expenses is determined in current dollars.

In the second step, a rehabilitation consultant qualified in economic damages evaluation determines present and future values of damages. To do this, cost is given in current dollars. Through this process, future cost increases can be more easily seen, understood and met.

For the attorney representing a plaintiff, a life care plan strengthens the argument for a truly realistic settlement sum. A rehabilitation consultant with specialized skills and training, accredited in life care planning, can testify in court as an expert or work as a consultant and assist the attorney in formulating his or her argument.

A life care planner can be of similar value to the defense. In such cases, the life care planner can advise the attorney on records to request and reports to use. The life care planner can also provide expert advice and testimony disputing the need for requested items or services and unnecessarily high settlements. Given the current tendency of some courts to put a cap on settlements, attorneys will probably find the expertise of a life care planner increasingly beneficial.

ChannelWeb reports:
Attorneys for Cisco (NSDQ:CSCO) and one of its solution providers on Friday presented closing arguments to the jury in the breech of contract lawsuit between the two, with the solution provider's attorney characterizing Cisco as purposely throwing its partner overboard and destroying its business and Cisco's attorney claiming the vendor is really the victim.

Infra-Comm, a San Juan Capistrano, Calif.-based solution, alleges Cisco breached its Indirect Channel Partner Agreement (ICPA) and the terms of its deal registration program by passing a potential large deal with the Irvine Company, a property development company, toAT&T (NYSE: T). Networking and IP telephony vendor Cisco, in return, is accusing Infra-Comm of harming Cisco's business and misusing its brand name....

Daucher then asked the jury to award Infra-Comm damages of $6,381,446, which he called a very conservative estimate by an expert witness and attorney based on the amount of business Infra-Comm lost as a result of losing its Cisco ICPA and its business with the Irvine Company.

In Life-Care Planners Can Help Simplify Damages For The Jury, vocational evaluation expert witness and life care planner Ronald T Smolarski writes on to determine what care and how much money a chronically or catastrophically disabled individual will need for the rest of his or her life.

Some attorneys representing either the plaintiff or the defendant in such cases are now getting the expert help they need from specially trained rehabilitation consultants called "life care planners". Life care planners do exactly what the name implies: they formulate life care plans - detailed descriptions of special damages the disabled individual suffered, what progressive disablement can be anticipated and, most importantly, the present and future monetary costs of all necessary care.

In doing this, the life care planner deals in actual dollar figures, not "guesstimates". This allows the jury to understand what the disabled person needs, currently and in the future, and why. As a result, the specialized training of a life care planner can simplify the plaintiff attorney's job, strengthen the case and make the settlement more realistic in terms of future needs. For the defense attorney, the life care planner can point out case weaknesses, exaggerations and unnecessary costs.

Steve Roensch, President of Roensch & Associates and metallurgy expert witness, discusses Finite Element Analysis:

FEA is applied to many types of problems, such as temperatures in consumer electronics, airflow around aircraft, and magnetic fields in electric motors. By far the most common application is structural FEA -- determining how a solid body responds to various forces.

The structural problem amounts to writing down some "governing equations" that describe the material and how it behaves, and then solving those equations for the physical part being analyzed subject to how it is held and loaded. This can be done on paper for some simple part shapes. The resulting "closed form solution" is another equation that provides the answer in terms of the basic variables, such as the part's dimensions.

But reality intervenes, and most parts are too complicated to solve in closed form. FEA comes to the rescue by providing a "numerical solution" for each individual problem. This is a large gathering of numbers approximating the desired answers, such as displacements and stresses, across the part. But each solution is unique to a specific case; there is no simple answer in equation form.

In FINITE ELEMENT ANALYSIS: Post-processing, Steve Roensch, President of Roensch & Associates and failure analysis expert witness, discusses FEA:

The finite element method is a relatively recent discipline that has quickly become a mature method, especially for structural and thermal analysis. The costs of applying this technology to everyday design tasks have been dropping, while the capabilities delivered by the method expand constantly. With education in the technique and in the commercial software packages becoming more and more available, the question has moved from "Why apply FEA?" to "Why not?". The method is fully capable of delivering higher quality products in a shorter design cycle with a reduced chance of field failure, provided it is applied by a capable analyst. It is also a valid indication of thorough design practices, should an unexpected litigation crop up. The time is now for industry to make greater use of this and other analysis techniques.

Steve Roensch, President of Roensch & Associates and metallurgy expert witness, discusses Finite Element Analysis:

Many legal professionals are exposed to Finite Element Analysis (FEA) in the courtroom and hire metallurgists to study failures across many industries..Finite element analysis is regularly applied to a vast array of products when something bending or breaking is an issue. FEA is applied to many types of problems, such as temperatures in consumer electronics, airflow around aircraft, and magnetic fields in electric motors. By far the most common application is structural FEA -- determining how a solid body responds to various forces.

Having a fundamental understanding of how the method works can help an attorney (i) recognize when FEA can strengthen a case, (ii) choose a capable expert and (iii) develop meaningful challenges to the opposition's expert. As discussed in the last issue of Courtroom FEA, if a loss, injury or death is due to something bending or breaking, FEA can help identify the cause of failure and hence the responsible party.

Next from Steve Roensch: But how does it work?

Judge Tom Yeager will preside over the seating of a grand jury in St. Tammany Parish, LA, which will determine if Amanda Gutweiler Hypes is re-indicted in connection with the 2001 Tioga house fire that claimed the lives of her three children. Hypes' 2002 indictment was thrown out in 2006 when the judge said that the lead prosecutor with the Rapides Parish District Attorney's Office had erred in showing secret grand jury proceedings to a fire expert witness.

Hypes' attorney, Mike Small, has said the expert witnesses expected to testify before the grand jury are "absolutely convinced the fire is not arson."

In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on "Are good experts born, or can they be trained? In this excerpt, they write on showing an open posture to the jurors:

Show an Open Posture to the Jurors
The first ingredient of a winning courtroom style is to show an open physical attitude, which illustrates an open psychological attitude. The jurors’ perceptions of an expert’s honesty, sincerity, self-confidence and leadership is formed by how open or closed the expert presents herself to them. The expert who exhibits an open attitude will elicit openness from the jurors; the expert who closes off from the jurors will see the same posture mirrored back from them. The following gestures communicate an open, honest, cooperative attitude:
Keep the abdomen open

People have a natural urge to cover up their abdomen, especially when under stress. Man’s soft, vital organs are located in this part of the body, so when the abdomen is exposed, people feel unprotected and vulnerable. One sees this behavior in the courtroom when witnesses fold their arms over their chest, wear vests and buttoned jackets, hold papers in front of them and generally try to cover up the front of their body. These obstructions, however, close them off from the jurors and create a psychological distance.

Sequestered in their chair behind the bar, experts are closed off from jurors, so they need to make a special effort to keep open. They will want to put their arms on the arm of the chair, instead of folded over their chest or in their laps; unbutton their suit jacket; and avoid stacking papers and/or books in front of them. Keeping an open abdomen is a courageous, receptive posture reflecting self-confidence and sincerity.

In Lemon Law Resources: Litigation Process, Attorney Sergei Lemberg writes regarding discovery:

Discovery is the longest part of a lemon car case: it begins soon after a lawsuit is filed and often does not stop until shortly before trial. During discovery, each side asks for information about the facts and issues of the case. Information is gathered formally through written questions (known as interrogatories), requests for documents, and requests for admission (which ask each side to admit or deny statements of fact).

Discovery includes questioning the dealer personnel, representatives of the manufacturer and/or any expert the manufacturer may have hired. Often, a claim or defense requires support from expert witnesses to explain technical information or validate an argument. One or more experts might be needed to testify about the connection between the manufacturer’s and the dealer’s conduct, the defects in the vehicle, and the loss suffered by the plaintiff or the existence and amount of the plaintiff’s damages. Expert witnesses work closely with representatives and attorneys to prepare the case. The plaintiff’s attorneys may retain and ASE Certified Master Mechanic to inspect the lemon vehicle and write a report.

A Louisiana District Court judge acquitted two men of 48 counts of dogfighting on Wednesday. Although Kathy Strouse, a superintendent for the Chesapeake Animal Control Unit in Virginia, was brought in as a dog expert witness by the United States Humane Society, the judge said a state prosecutor failed to provide substantial evidence of their involvement in the illegal sport.

Floyd Boudreaux Guy faced charges after an investigation led Louisiana State Police officers on March 11, 2005, to seize 57 pit bulls the officers believed were being used for illegal dogfighting. The dogs were seized from the men's Youngsville home. Expert witness Strouse was involved in the dogfighting prosecution of Atlanta Falcons quarterback Michael Vick. Dogfighting has been illegal since 1982.

In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on "Are good experts born, or can they be trained? In this excerpt, they write on showing an open posture to the jurors:

Show one’s hand

Some people approach life like a poker game: cautious, leery and holding their hands close to their chest so no one can see what’s up their sleeve. This attitude may be appropriate in some places, but not inside the courtroom.

Experts want to keep their hands visible, indicating that they come before the jurors hiding nothing. Let go of a balled fist and show an open palm. The open palm is an especially appropriate expression of cooperation; people use this gesture when they greet each other, shake hands, and ask for understanding. When addressing jurors, experts will want to use the open palm as an expression of their good will.

Defense witnesses began testimony Tuesday in the case against Brian Nichols. On March 11, 2005, Nichols was on trial for rape when he allegedly overpowered a deputy, took her gun, and went into the Fulton County, Georgia, courtroom and shot both the judge and a court reporter. Nichols is also charged with killing a sheriff's deputy outside the courthouse and a federal agent a few miles from the courthouse.

In his taped confession, Nichols said Federal Agent David Wilhelm pulled a gun on him. He also said actually pulled the trigger to try to shoot him. Nichols claimed he heard a click, that the gun misfired and he shot and killed Wilhelm in self-defense but prosecutors say that is impossible. Wilhelm wore thick rubber work gloves that night and it would have been impossible to fire a gun while wearing them. According to ballistics expert witness Bernadette Davy, Wilhelm's weapon did not misfire.

In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on "Are good experts born, or can they be trained?

The nonverbal language is powerful; more powerful than the verbal because it is the primal language of feelings. Most of the attributes of a good expert witness are nonverbal attributes, i.e., self-confidence, politeness, sincerity, preparedness, awareness, relaxed excellence. These are nonverbal attributes because they are based on other people’s perceptions of a person, rather than what the person says about himself. For instance, an expert can declare to the jury that he is credible, but that declaration does not make him credible. The jurors make an expert credible; their perceptions determine who is or is not credible.

In How the Daubert-Kumho rulings Effects Medical Expert Witnesses, internal medicine expert witness Dr. Perry Hookman

Daubert teaches that one should not just rely on the credentials of the medical expert. The medical expert in Federal court, and increasingly in the State courts, must be more than credible, as evidenced by Board Certification. Testimony must continue to be based on medical knowledge within the physician’s expertise. But whenever possible, the medical expert must currently also support all methodology and opinions with objective documentation and “reliable methodology”. The important questions now are: Has the expert’s theory or technique in question been tested? Has it been subjected to peer review and publication? What is its error rate? Do standards exist? Is there widespread acceptance in the medical community? In summary with what learned treatises from peer reviewed medical publications can the medical expert document and thus support his opinions or theories? The Daubert test applies to all scientific evidence. (509 U.S. at 593,n.11) The Daubert-Joiner-Kumho trilogy has in practice raised the bar for admissibility of expert testimony in every category. Additionally it is difficult if not impossible, for even an experienced medical clinician or practitioner to offer an expert opinion based on technical or specialized knowledge obtained through experience or education alone.

In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on "Are good experts born, or can they be trained?

Good experts are good performers, without being theatrical. They keep an eagle’s eye on their jurors - checking out the level of interest, noting which juror is asleep, which is bored. The worst time for experts to testify is after lunch, between the hours of 1:30 and 3:00. So during that time, they have to be especially innovative - talk louder, show an interesting prop or exhibit or get out of the witness chair and address the jurors directly (with the judge’s permission, of course.) All the while, these tasks must be carried out maintaining a demeanor of "relaxed excellence," an attitude which communicates control, leadership and power.

So, is it possible to learn the skills involved in communicating these subtle nuances? Or do you have to be born with a special sensitivity and natural talent? As complicated a job as it is, being a good expert witness can be learned. And most of the learning has to do with making the nonverbal language - which is spoken on an unconscious level - conscious. By bringing the silent, subtle messages that are communicated nonverbally to light, and examining them through the lens of reason, one can gain control over that language and begin to use it in an intelligent, purposeful way.