April 30, 2009

Hydrology Expert Witness On The Perfect Storm Part 2

In THE PERFECT STORM: The Science Behind Subrogating Catastrophic Flood Losses, hydrology expert witness Richard Van Bruggen writes:

The term “100-year flood” still seems to cause confusion among public lenders, professionals, and insurance companies. Many continue to believe it is a description of a flood that occurs only once every 100 years. In truth, the term “100-year flood” is an abbreviated way of describing the magnitude of a rainfall and subsequent flood event that has a one percent chance of occurring. It is important to note that the same statistical chances apply for any storm at any time and any given year. The “return period” (or recurrence interval) of an annual maximum flood event has a return period of X years if its magnitude is equaled or exceeded once, on the average, every X years. A reciprocal of X (1/X) is the exceedance probability of the event, meaning the probability that the event is equaled or exceeded in any one year. As an example, a 100-year return period (1/100) means that there is a 1% probability of an occurrence in any one year. A 10-year return period (1/10) means that there is a 10% probability of an occurrence in any one year. A 500-year return period (1/500) means that there is a 0.2% probability of such an occurrence in any one year. This is why many hydrologists have tried to change the terminology from “100-year flood” to a “1 percent flood”.

April 29, 2009

Software Expert Witness In RealNetworks Case

Software expert witness Robert Schumann testified yesterday for a group of Hollywood studios in the case against RealNetworks. Plaintiffs allege that Real identified and actively worked to remove the copy protections from DVD discs with its software product, RealDVD. The expert stated that he was able to copy seven movies to a thumb drive that was completely unprotected and lacked the device key that a DVD drive included. Plaintiff's attorney Rohit Singla implied that RealDVD had circumvented the device key. PCMag.com reports:

Singla tried to make the point that DVDs contain several copy-protection mechanisms, which RealNetworks allegedly methodically identified and worked to supercede. The protections included both device and bus encryption, part of the Content Scrambling System (CSS) code that must be included with every DVD. But Singla also attempted to point out that many DVDs come with two third-party pieces of copy-protection software licensed by Macrovision and Sony DADC, called ARccOS and RipGuard, which have been placed on DVDs to give them additional copy protection.

April 28, 2009

Hydrology Expert Witness On The Perfect Storm Part 1

In THE PERFECT STORM: The Science Behind Subrogating Catastrophic Flood Losses, hydrology expert witness Richard Van Bruggen writes:

Natural disasters, especially major flood losses, remain the nemesis of most insurance carriers. The damages can be astronomical and the chances of subrogation appear slim when everyone has suffered similar damage. However, when it seems that only God is responsible for sending devastation of such magnitude, it is time for subrogation professionals to roll up their sleeves and get to work. It is also time to hire an expert in hydrology or hydraulics. With the help of a hydrology expert, Matthiesen, Wickert & Lehrer recovered more than $7 million for Lloyds of London in the Great U.S.A. Flood of 1993. Five years later, with the help of expert, Rick Van Bruggen, Matthiesen, Wickert & Lehrer recovered more than $2.5 million for Transportation Insurance Company after the Great California Flood. With perfect storms such as these, subrogation recovery almost always seems impossible. In reality, however, quite the contrary is true. Flood waters, just like pieces on a chess board, never lie. The subrogation professional’s distinct advantage is that while God may send the rain, what happens to the flood waters once they reach Earth is almost always affected by man.

The behavior of water is predictable. It is affected by gravity, seeks its own level, and follows the contour of the Earth’s surface – whether natural or man-made. As a result, with the use of a qualified hydrologist, subrogation counsel can accurately map, mimic, and image the exact behavior of the flood waters, before, during and after the flood event. This ability to prove what happened to the water means that we can accurately point to the effect that man-made objects, construction projects, barriers, and other obstacles had on the water, and show precisely how the specific flood damage being subrogated was affected or caused by these man-made conditions. It is, therefore, critical that the subrogation professional have a working knowledge of and understand the behavior of water and the science behind hydrology.

April 27, 2009

Psychology Expert Witness On Therapist-Patient Sex Part 4

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

A conservative, risk management backlash against unethical psychotherapists has developed. Because of the increased number of lawsuits against psychotherapists over the past twenty years, malpractice insurance companies have led the charge to bring continuing education on ethics and risk-management to all psychotherapists. Numerous such courses are offered, some resulting in a discount on the therapist’s malpractice policy and some required for state license renewal. This represents a substantial change from the approach to ethics in the earlier era. Many psychotherapists of the Baby Boom generation, who trained in the nineteen sixties and seventies, had never even been exposed to a course on ethics, let alone risk management, as part of their professional training. The insurance companies support today’s continuing education courses, or even sponsor them themselves, in the hope that those who complete such courses will engage fewer of the behaviors that resulted in lawsuits and insurance payouts.

Risk management training is somewhat different from ethics education. Ethics, briefly, is about doing what is right. Risk management is about avoiding doing that which is risky—meaning that which is likely to provoke a lawsuit. Risky behavior by a psychotherapist is not necessarily unethical. Indeed, under certain circumstances, risky behavior may be the most ethical course of action. (See the recent book by Ken Pope and Melba Vasquez, “Ethics in Psychotherapy and Counseling: A Practical Guide,” Jossey-Bass, 2007, for a more complete discussion of the interplay between ethics and risk management.)


Excerpted from National Psychologist, March 2008, with the author's permission.

April 26, 2009

How Can I Get Out Of A Case As An Expert Witness Without Being Sued?

A first time expert witness asks: how can I extricate myself from a case without getting sued? Here is an answer from attorney Edward Hoffman:

Being an expert witness is tough -- especially the first time. I happen to know a very renowned scientist who recently was deposed as an expert for the first time. My scientist friend has the kind of credentials that would floor most people, and he has a real gift for explaining complex concepts clearly. Given that he was being deposed about a question well within his expertise, I would have expected him to handle the depo in stride and I would have expected the attorney deposing him to be a nervous wreck. In fact, it was quite the opposite -- simply because the experience was so new to him. My point is that your reaction to the deposition is quite normal and you should not let it affect you too much.

Backing out, if that is what you decide to do, will potentially cost you a great deal. You contracted (either orally or in writing) with this attorney to be his expert at trial, and if you do not cooperate you will be in breach of the contract. You will then be responsible for all the costs foreseeably arising out of your breach, which may be astronomical. For example, if his clients would win a million dollars with your testimony but lose without it, you will potentially be on the hook for a million dollars. Worse yet, they might sue him for malpractice as a result of your breach and he could then sue you to pay not only the damages he is required to pay out but also to reimburse him for his attorney fees defending that lawsuit.

From LawGuru.com.

April 25, 2009

Psychology Expert Witness On Therapist-Patient Sex Part 3

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

One of the most significant changes over the years has been the advent of malpractice attorneys becoming knowledgeable about non-sexual boundary violations. Indeed, a specialty of lawyers has emerged—lawyers who sue psychotherapists—and these attorneys tend to know more about the ethics codes and practice guidelines of the American Psychological Association and other relevant professional organizations than many, if not most, of the professionals belonging to these associations. These attorneys file suits over non-sexual boundary violations—non-sexual touching, excessive self-disclosure, sessions outside the office, and non-sexual multiple relationships. A lawsuit against a psychotherapist for a non-sexual boundary violation was unheard of twenty years ago.

One very significant causal factor in the rise of lawsuits over non-sexual boundary violations was the termination or limitation of professional liability coverage for sex claims. One of the reasons attorneys took on the earlier cases of therapist-patient sex was the profit motive. Therapist-patient sex cases would reap million dollar or even multi-million dollar awards for plaintiffs. Large attorney fees came to an end when the malpractice insurers, who typically wrote policies with million dollar or higher coverage limits, recognized that therapist-patient sex was not a reasonable risk of psychotherapy, was not part of psychotherapy, and, consequently, did not need to be covered as part of the malpractice policy. Most malpractice policies today have a coverage limit of $25,000 for damages resulting from therapist-patient sex.

With the new coverage limits in place, the lawsuits for therapist-patient sex did not stop. Instead, attorneys adapted to the language of the new malpractice policies. Because numerous ethics experts have opined that non-sexual boundary violations precede therapist-patient sex, and because these non-sexual boundary violations are seen by many as harmful in and of themselves, a new kind of lawsuit arose: Therapists who had been sexually involved with patients began to be sued for all the non-sexual boundary violations that had preceded the sexual involvement. These boundary violations included sessions that focused on the therapist’s problems rather than the patient’s (excessive self-disclosure), meetings that were social and of no therapeutic benefit, exchanging gifts of substantial value as the relationship devolved from therapeutic to social, and a host of other activities that were incompatible with meaningful psychotherapy. The case was made that these non-sexual boundary violations had caused great harm to the patient—at minimum, depriving the patient of the needed treatment. The result of this new strategy was that cases of therapist-patient sex came to trial with hardly any mention of the sexual aspect of the relationship. Instead, they were tried based on the non-sexual boundary violations—the violations that were covered by the malpractice policy.

Not only did this provide attorneys with a new strategy to sue for sexual violations and recover damages, it opened the door for these same attorneys to become knowledgeable about non-sexual forms of malpractice and negligence. This, in turn, gave rise to a new set of lawsuits that focused on claims of harmful non-sexual boundary violations or non-sexual multiple relationships. These behaviors had always been unethical when they were harmful or exploitative, but they had not previously been the focus of lawsuits because attorneys and patients had been unaware that they could be.

Excerpted from National Psychologist, March 2008, with the author's permission.

April 24, 2009

Postponing A Court Date & The Expert Witness Part 2

If something unexpected happens to an expert witness what are your rights about postponing the court date? Answer by attorney Michael R. Nack:

Part of the problem is that your change of heart may have come too late to correct. It may be that, if the trial date is coming up soon, it is too late to properly designate another expert to take your place. Some judges will not allow a delay in situations like this, and if your testimony is critical it is possible that your actions will cost his clients their case.

Even if there is still time to replace you and an adequate substitute can be found, replacing you will cost money and you will likely have to reimburse the lawyer for those funds. The new expert may charge more than you, for example, and the other side will expect to be reimbursed for the added costs and attorney fees involved in reading the new expert's reports and taking his deposition. At the same time, your friend will have to perform additional work and you will be on the hook for his added fees. Even this limited exposure would be considerable in most cases.

Of course, the specifics of your situation might lead me to predict a less dire outcome. In general, though, experts who back out after they have been designated and deposed face some serious risks. You might want to re-think your position very carefully here, and first I strongly urge you to have a detailed consultation with a qualified attorney.

This question and answer regarding expert witnesses appears on Law Guru.com

April 23, 2009

Psychology Expert Witness On Therapist-Patient Sex Part 2

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

In the current era, the patient, like the therapist, is probably aware that sexual behavior in the context of psychotherapy is considered unacceptable. Patients are more sophisticated today. They have likely read newspaper or magazine articles about therapist-patient sex or heard discussions on television talk shows, and are aware of the low regard with which the psychotherapy professions greet this behavior. Because no scientific methods of survey research can possibly determine how many unreported cases of therapist-patient sex exist, the following is my own unsubstantiated speculation. Therapist-patient sex, when it occurs, is more likely to be reported today than in the earlier era because patients are more likely to know that it is a licensing violation. Nowadays, I suspect there are far fewer victims of this practice who, believing themselves to have been harmed by the sexual relationship, elect to go off and suffer in silence without filing a licensing complaint. For one thing, in California, any subsequent therapist who treats a victim and learns of a prior instance of therapist-patient sex is required by law to provide a pamphlet that describes courses of legal and professional action that are open to the victim.

In an unusual case about which I testified at a California Board of Psychology hearing, the female patient intended, for whatever psychological reason, to have a sexual relationship with her male psychologist. She was knowledgeable about the laws and actually went to an attorney and attempted to draw up papers that would make it impossible for her later to sue or file a licensing complaint. Her purpose in creating this document was to reassure her intended sex partner, her therapist, that he could proceed without fear of subsequent repercussions. She was unable to find an attorney who would draw up such papers and was apparently legally unable to waive those rights. Ultimately, the two did become sexually involved, and she did later file a licensing board complaint.

One potential consequence of a more knowledgeable population of consumers is the possibility of false complaints being filed. Unfortunately, with more patients being aware of the massive harm that can be done by a compliant—even an unsubstantiated complaint must be reported to professional staff associations and malpractice insurers—the likelihood would seem to increase for false complaints. Why would someone file a false complaint? A variety of factors could serve as motivation: hope of financial gain, acting-out of the patient’s pathological anger or of other aspects of a personality disorder, or freeing the patient from unwanted, or court mandated, treatment. I cannot say for certain how many cases of false complaints I have consulted on. After all, the jury’s verdict for the defense does not necessarily resolve such questions, as juries are fallible.


Excerpted from National Psychologist, March 2008, with the author's permission.

April 22, 2009

Postponing A Court Date & The Expert Witness Part 1

If something unexpected happens to an expert witness what are your rights about postponing the court date? Answer by attorney Michael R. Nack:

In any given lawsuit it may become necessary or advisable to seek a postponement. Sometimes, and at some stages of the proceedings this can be achieved through the consent of the parties with the approval of the Judge. In other cases, a formal Motion is required to be filed and argued with the Judge deciding whether to grant the Motion or not. There are occasions when the case simply can not be continued by any method. If the plaintiff is not prepared to proceed to trial, the plaintiff may dismiss the case "without prejudice" which means that the suit may be refiled within one year. Perhaps this is what your attorney was suggesting.

I would certainly make an appointment, sit down and get answers to all of your questions before you consider changing attorneys at this stage of the proceedings. However, if you do come to a decision to change attorneys, you have the right to terminate your employment of your present attorney. You should do so in writing, and you should make arrangements to pick up your complete file from that attorney. Then, you should by all means obtain another attorney to take over. By the way, your first attorney may be legally entitled to some compensation for the time and effort put into your case even if you do decide to change attorneys. Please consult with your attorney before making any changes.


This question and answer regarding expert witnesses appears on Law Guru.com

April 21, 2009

Psychology Expert Witness On Therapist-Patient Sex Part 1

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

Despite the current ethics and enforcement climate—a climate that can best be described as zero tolerance for sex with patients—cases of therapist patient sex still occur. But while the cases continue to arise, they are different in certain regards from the earlier cases that came to light in the 1970’s and 1980’s. What follows is a description of some differences I have observed in my own consulting practice between therapist-patient sex as it occurred in the earlier, more naive era (let’s say, before 1980) and the current era (let’s say after 1995). One caveat is that numerous types of sampling error and bias are built into any such first-person account. I hope to provide illustrative examples that might lead to further discussion, and I acknowledge this is by no means a scientific survey.

In the earlier era, the therapist could convince himself—the male pronoun is used intentionally because most of the offenders were men—that the sexual behavior might be a helpful part of treatment. I believe that some, if not most of the offenders, who pitched this line to their female patients, actually believed it themselves. They told their patients that the patients needed to open up to intimacy, needed to overcome their fears regarding their sexuality, needed to break out of their shells, needed to learn body-acceptance, trust and so on.

While these arguments in support of sex with the therapist may have been cynical manipulations created by the therapist merely to seduce the patient, they also may have been sincerely stated—however false such arguments may be viewed by the rest of the professional community. Because in the former era there had been so little discussion of therapist-patient sex, the therapist could convince himself, as he convinces his patient, that this particular intervention had not been studied, could result in benefits to the patient, and had been rejected out of hand due to an anti-sexual, puritanical bias. Note that many of the known cases of therapist-patient sex occurred during the so-called “sexual revolution,” a time in our society when sexual experimentation of all kinds was seen as more acceptable. Indeed, during the 1970’s, Masters and Johnson and other sex therapists incorporated “sex surrogates” into their treatment. Perhaps, at the time, it was seen as only a short leap for the therapist himself to offer to serve as a male sex surrogate as a way to directly resolve the patient’s sexual issues. The therapist may have told himself that he was forward-thinking, if not cutting edge, and that lowering the barriers to sexual expression would benefit both therapist and patient. Like much else that went on in the name of the sexual revolution, today these ideas seem dated, wrongheaded and destructive.

Excerpted from National Psychologist, March 2008, with the author's permission.

April 20, 2009

What Constitutes An Expert Witness?

LawGuru.com poses the question "What constitutes an''expert witness''? Attorney Jonathon Moseley answers:

This is an interesting question, and this is one of the biggest reasons why "pro se" plaintiffs (without an attorney ) often lose in court. A "fact witness" is someone who simply testifies to what they saw, or heard, or know. "The light was red, when the car went flying through." That is simply a fact. ANYTHING which requires some opinion or analysis or conclusion, however, requires an "expert witness." For example, "If the brakes were in good condition, the driver should have been able to stop in time and avoid the accident." Says who? That is not a fact that can be observed and testified about. That is an opinion (says the law). Actually it is an engineering and scientific conclusion based upon the laws of physics and the characteristics of cars. However, it takes an "expert" to testify to that, or you cannot introduce any such evidence into the trial.

Or: "It will cost $5000 to repaint the house because the contractor botched the job." Says who? The court will not allow such testimony, to establish the cost of repainting, unless you have an "expert witness" to express his educated OPINION as to how much money it will cost to repaint (how much time, how big the house is, whether painting certain areas are easy or hard, etc.)

An expert can be an expert without any training, because of simple experience. Someone who dropped out of high school but spent 8 years painting houses can testify as an expert on the cost of repainting a house after a contractor damaged it or botched the paint job. A high school dropout who repairs pianos can testify to the cost of repairing a piano after the moving company DROPPED it while moving it.

April 19, 2009

Business Expert Witnesses & Michigan Rule of Evidence

In The Michigan Law Blog, Michael J. Hamblin writes:
Required Qualifications for Expert Witnesses in Michigan Business Litigation Cases

In many business litigation cases, winning depends on the testimony of an expert witness who supports a party's theory of the case or damage calculations. When testifying, the expert gives his or her opinion on one or more topics at issue in the case.

Michigan Rule of Evidence 702 lays out the requirements for a witness to be qualified as an "expert" witness in Michigan court cases. That rule states that such a witness must demonstrate expert "knowledge, skill experience, training, or education". But, that's not the end of the inquiry.

Michigan Rule of Evidence 702 further provides that the opinion testimony of an expert witness will be admitted only if "(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles or methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

In other words, it's not enough for an expert witness to rest his or her opinion on legitimate data. Rather, it must be shown that the expert's opinion is based on legitimate data and expresses conclusions that are themselves based on reliable principles and methods.

">Expert witnesses are an important part of many business litigation cases and have a significant responsibility. They must be chosen with care and properly qualified in order to support a party's case. If properly chosen and qualified, an expert witness can provide a basis for a court to adopt a particular party's case theory or damages calculation, which will then lead to a successful conclusion of that party's case.

April 18, 2009

Arizona Supreme Court On Medical Experts

In March the Arizona Supreme Court upheld the constitutionality of a 2005 law establishing minimum qualifications for medical liability expert witnesses who testify in. The court rejected arguments from the state trial bar that it was up to the courts -- not lawmakers -- to set rules governing expert witness testimony and that the statute violated the separation of powers between the legislature and the judiciary. The opinion states:

Although we maintain plenary power over procedural rules, we do not believe that power precludes the legislature from addressing what it believes to be a serious substantive problem -- the effects on public health of increased medical malpractice insurance rates and the reluctance of qualified physicians to practice here -- by effectively increasing the plaintiff's burden of production in medical malpractice actions.
Amednews.com reports: "Because Arizona's constitution prohibits any type of cap on damages in liability cases, "this is a very important decision for us," said Chic Older, Arizona Medical Assn. executive vice president.

April 17, 2009

Key Toxicology Expert Witness Excluded in Grace Trial

A federal prosecutor dropped key toxicology expert witness Christopher Weis from the case against W.R. Grace & Co. saying the move would significantly curtail the government's case after U.S. District Judge Donald Molloy had told the parties to “move the case along.”

Weis, a toxicologist for the U.S. Environmental Protection Agency arrived on Libby's front lines in 1999 to investigate reports of widespread asbestos contamination. He and other emergency response workers were the impetus behind government efforts to clean up Libby and investigate Grace's alleged criminal conduct. Grace, a global chemical and building materials company, and five former company executives are charged with a federal conspiracy involving Clean Air Act violations and obstruction of justice.

Excerpted from Missoulian.com.

April 16, 2009

Marketing Expert Witness On Representative Agreements.

Marketing expert witness Glen Balzer is a widely published author on distributor and representative relationships and agreements, as well as sales organizations and commissions. Here he writes on traits of successful representative agreements.

Suppliers and manufacturers' representatives often seek to gain advantage over their partners by incorporating a bias into the representative agreement favoring the author, placing the other party at a disadvantage. This technique rarely enjoys the benefits intended. The best agreements set balance as an objective between supplier and representative. If the relationship begins with a biased agreement, that bias works against development of a solid relationship. Since the agreement is the foundation of the partnership, it must flourish with words and phrases that elicit a spirit of trust and cooperation.

Each clause of a representative agreement should seek to strike a balance between the power of the supplier and the manufacturers' representative. If there is a clause of indemnification protecting the supplier for a specific set of conditions, there should also be a clause protecting the representative on a different set of conditions. If there is a paragraph outlining the duties and obligations of the representative, there should also be a paragraph outlining the duties and obligations of the supplier. A unilateral phrase only works to the ultimate distrust of one party by the other. Distrust always works against development of the relationship and ultimately against sales, growth, and profits, the original purpose of the relationship and the agreement.


More to follow from Glen Balzer.

April 15, 2009

Security Expert Witness On Strip Shopping Centers Part 7

In Security Solutions for Strip Shopping Centers, author and security expert witness Karim H. Vellani discusses risks and solutions for strip shopping center security:

Conclusion

A crime analysis case study was recently completed by the author’s firm and is pending publication in the American Society for Industrial Security’s (A.S.I.S.) Security Business Practices Reference, Volume 6. The results of the case study indicated that a sizable return on investment was realized within a year of implementing a crime analysis program. The first year’s savings, or cost avoidance, was $9.2 million, or 41% of the security budget. This savings reflected a number of changes to the security program, but primarily constitutes the deployment of security personnel during higher risk times. There is another category of cost avoidance that cannot yet be measured. That category is generated by reducing crime and avoiding security litigation.

The necessity to develop and maintain a well-balanced security program is elementary and essential to the protection of customers and other assets. Crucial to such a program are the balanced applications of crime analysis, security selection & implementation, and monitoring. In addition, potential liability can be avoided if management responds appropriately to the property’s crime experience. Premise security cases are much less supportable if management conducts crime analysis, anticipates certain activity, and implements reasonable crime countermeasures.

Like most other tasks that security managers must do, there are two solutions. The first is to hire, train and supervise a person or team of people to pull the data from each police department where we have a store. The other option is to out-source this task. Outsourcing appears to be the most common alternative as it reduces costs substantially and brings third-party objectivity to the project. Also, the expertise to conduct crime analysis is somewhat limited given the high demand for it today.


April 13, 2009

Forensic Expert Witness Association Meeting Announcement

The topic for the April 20th meeting of the Forensic Expert Witness Association (FEWA) is “The NAS Report on Forensic Science and Legal Challenges to Scientific Testimony.” The presenter is attorney and UCI Professor William C. Thompson, PhD.

In February, the National Academies of Science issued their 254 page report, Strengthening Forensic Science in the United States: A Path Forward, that is quite critical of the state of forensic science in the United States. Professor Thompson is quoted in this report several times and will speak on how attorneys challenge science and the impact of this report for experts and the legal system.

William C. Thompson is Professor and Chair of the Department of Criminology, Law & Society at the University of California, Irvine. He has a Ph.D. in psychology from Stanford University and a J.D. from the University of California, Berkeley. He studies the way people interpret (and sometimes misinterpret) scientific and statistical data and has also written extensively about the use and misuse of DNA evidence.

Although primarily an academic, Thompson occasionally represents clients in cases involving novel scientific and statistical issues. He argued the first case on admissibility of DNA evidence before the Supreme Court of New Mexico and was a member of the “dream team” that represented O.J. Simpson during his criminal trial. He has consulted with police departments, coroners and lawyers on a variety of cases involving scientific evidence in the US, the UK, and Australia. He has also assisted in several important journalistic investigations of crime labs, including the investigation that exposed problems in the notorious Houston Police Department Crime Laboratory. It was Thompson who discovered the DNA typing error that falsely incriminated a Houston man named Josiah Sutton.

Thompson served as Reporter for the American Bar Association Standards Committee Study Group on DNA Evidence and was a member of the ABA Task Force on Biological Evidence. He co-chairs the Forensic Evidence Committee of the National Association of Criminal Defense Lawyers (NACDL). He is also a member of the California Crime Laboratory Task
Force, a body created by the state legislature to recommend ways of improving forensic science in California.

Monday, April 20th, 5:30PM - Radisson Hotel, corner of MacArthur Blvd. & Birch St., Newport Beach, CA 92660
Reservations Required: info@forensic.org or 949.640.9903
Non Members must prepay in advance MC or Visa with exp. date,
FEWA Members $45, Non-members $60

April 13, 2009

Security Expert Witness On Strip Shopping Centers Part 6

In Security Solutions for Strip Shopping Centers, author and security expert witness Karim H. Vellani discusses risks and solutions for strip shopping center security:

Temporal analysis is the third query. This analysis tells us when the risks are high and helps us efficiently allocate our security resources when threats are more likely. Various methods for learning a property's crime patterns can be considered including time of day, days of week, week of month, seasonal trends, and, on the extreme, crime trends during full moons. Temporal analysis is where security managers will gain the highest return on investment.

You will find that crime analysis does not stop with these analyses and applications of security measures, but takes further steps to monitor the crime situation. Crime analysis continually monitors the crime picture, typically on an annual basis so we can test the program’s effectiveness and revise if necessary. Crime analysis makes a static security program dynamic, providing for change.

April 12, 2009

Gaming Industry Expert Witness On PartyGaming Plc

The parent company of one of the most popular poker sites on the Internet said yesterday it has agreed to pay the U.S. government $105 million to settle charges that it illegally offered gambling to players in the U.S. PartyGaming Plc said it would pay the money over three years as part of a "Non-Prosecution Agreement" it recently reached with the U.S. Attorney's Office for the Southern District of New York.

The Justice position is considered controversial with gaming analysts and some members of Congress arguing it has steered U.S. players to unregulated offshore sites. "The U.S. government has now succeeded in driving out the reputable publicly-traded Internet gaming operators," said Joseph M. Kelley, a professor of business law at the State College at Buffalo, who has also served as an expert witness for gaming and government interests. "It has not decreased online gambling, but has reduced the ability to monitor suspicious transactions."

Excerpted from The Washington Post.

April 11, 2009

Security Expert Witness On Strip Shopping Centers Part 5

In Security Solutions for Strip Shopping Centers, author and security expert witness Karim H. Vellani discusses risks and solutions for strip shopping center security:

Analyzing the Information

Once we have our database of actual crimes, we can analyze the specific risk at each site. There are a number of queries that will assist in creating an effective security program. The first is a property-specific analysis which helps us differentiate between crime risks when comparing sites. For resource allocation, it is imperative that the analysis is focused at the property level. Given a security budget of $1,000,000 per year, this analysis allows us to compare risks at each site and allocate accordingly.

The next query is a crime-specific analysis which focuses on the type of crimes committed on the property. Knowing what crimes have occurred on the property will aid loss prevention managers in selecting specific prevention measures to prevent future occurrences as it tells us what particular asset is being targeted.

April 10, 2009

Hydrology Expert Witnesses In Irrigation District Fraud Case Part 2

U.S. District Court Judge James Mahan recently postponed the criminal trial of officials who run the Truckee Carson Irrigation District until February 2010 at the request of defense lawyers who said they need more time to prepare for such an "unusual and complex case.” The officials are accused of defrauding the federal government for years so they could deliver more water from Lake Tahoe and the Truckee River to area ranchers and farmers than was rightfully theirs.

A 2008 flood triggered dozens of lawsuits from more than 100 homeowners and questions about the amount of water flowing through 370 miles of canals. Hydrology expert witnesses estimate it would cost $3.1 million to build an 11.7-mile long concrete barrier on the Truckee irrigation canal to protect against a breach such as the one in 2008. Environmentalists and others question whether taxpayers should subsidize a century-old irrigation system that uses precious water resources to grow crops in the desert.

Excerpted from SierraSun.com.

April 9, 2009

Security Expert Witness On Strip Shopping Centers Part 3

In Security Solutions for Strip Shopping Centers, author and security expert witness Karim H. Vellani discusses risks and solutions for strip shopping center security:

As an industry best practice, the objectives of crime analysis are:

1. To reduce crime on the property.

2. To evaluate and aid in the selection of security measures.

3. To justify security expenditures.

4. To provide a system of monitoring the effectiveness of security measures.

5. To provide a continual evaluation system of the site’s crime situation.

6. To reduce liability.

Having outlined the objectives of crime analysis, we should take a look what crime analysis is and is not. Crime analysis is not demographic data that determines risk for an area using unknown data points and some far reaching social disorder theory, nor is it data from other unrecognized sources. To the contrary, crime analysis is based on actual crime data pulled from law enforcement databases. The difficult part here is accessing those databases from each and every police department where a store is located. Despite the difficulty in some jurisdictions, it can be done.

April 8, 2009

Hydrology Expert Witnesses In Irrigation District Fraud Case

Officials who run the Truckee Carson Irrigation District are accused of defrauding the federal government for years so they could deliver more water from Lake Tahoe and the Truckee River to area ranchers and farmers than was rightfully theirs. It is alleged that district officials trained workers how to disable some water meters and manipulate others. The investigation comes after the failure of an earthen canal in northern Nevada that sent flood waters into hundreds of homes in January 2008. The flood triggered dozens of lawsuits from more than 100 homeowners and questions about the amount of water flowing through 370 miles of canals.

Hydrology expert witnesses estimate it would cost $3.1 million to build an 11.7-mile long concrete barrier on the Truckee irrigation canal to protect against another breach. The Bureau of Reclamation estimates that system wide upgrades could cost hundreds of millions of dollars.

More to come from SierraSun.com.

April 7, 2009

Security Expert Witness On Strip Shopping Centers Part 4

In Security Solutions for Strip Shopping Centers, author and security expert witness Karim H. Vellani discusses risks and solutions for strip shopping center security:

Using Police Data

Given that we now know that crime analysis uses actual crime data, we should define, step by step, the methodology that is proven, considered a best practice, and most important, accepted in court. The first step is to obtain the police department data for each store. This data usually comes in the form of Calls for Service (CFS), which provide a fairly accurate portrayal of criminal and other activity and consist of each call to the police to report crimes or other activity from the location. With this initial data, we can begin to build our database of crime at each store.

To get to 100% accuracy, we have to go one step further by obtaining the offense report for each incident that concern us. Offense reports are the written narrative of a call for service that resulted in an actual crime. Offense reports are especially important at shopping centers for a number of reasons. First, it is common for people to use the pay phones at shopping centers to report crimes that may not have occurred at the store. Offense reports give us the critical information to weed out those crimes that happened elsewhere. Second, shopping centers often have inflated crime levels because police dispatchers and officers use the main address of the shopping center. The police report will disclose the business where the crime actually occurred. Third, crimes are sometimes misreported by victims and witnesses. Offense reports disclose the actual crime, not the reported crime. For example, offense reports may tell us that a reported robbery from the shopping center was actually a burglary at an apartment complex across the street.

April 6, 2009

Trademark Expert Witness On Branding Part 5

Trademark expert witness William D. Neal is Senior Executive Officer at SDR Consulting and in Modeling Brand Equity, he writes on branding:


Measurement Issues

The challenge to both marketers and marketing researchers is determining how we measure and manage the intrinsic value of a brand (its equity) and how do we tie that value and our attempts to improve value to customer loyalty.

Recent literature addressing brand equity indicates that there are several different approaches to measurement. Brand equity can be addressed at either the corporate level or the category level and can also be addressed using internal data or external data. At the corporate level, brand equity can be assessed using internal financial data from the firm's accounting system, or it can be assessed using comparative financial performance data from similar firms (i.e. external). At the category level, a firm can address brand equity using unit profit margins in comparison to unit marketing costs, and in comparison to the costs of other products in the category. Alternatively, the firm can use consumer surveys to measure the perceived value of the product/brand compared to other products/brands in a category.

April 5, 2009

Security Expert Witness On Strip Shopping Centers Part 2

In Security Solutions for Strip Shopping Centers, author and security expert witness Karim H. Vellani discusses risks and solutions for strip shopping center security:

Having outlined some of the concerns at strip centers, it should be noted that the focal point of this article is how to determine the true risk at these facilities, rather than the reasons for the risk. As such, we turn to the way in which risk can be determined.

Shopping center managers face a formidable challenge in determining the true risk at their properties because their addresses are often used by crime victims, witnesses, and even the police to report criminal incidences. Adding to this problem is the fact that many people without phones in their residences use the payphones at shopping centers to report crimes that happened elsewhere. Even crimes that occur on the public street can get reported using the center’s address. These issues necessitate the need to thoroughly investigate each crime of violence to determine the true location.

The most accurate method for determining crime risk at a site is police crime data, which, not surprisingly, is the most commonly accepted method in court. This crime analysis methodology far surpasses the reliability of other methods, such as demographic data and security reports. Crime Analysis, as defined in Applied Crime Analysis, is the logical examination of crimes which have penetrated preventive measures, including the frequency of specific crimes, each incident’s temporal details (time and day), and the risk posed to a property’s inhabitants.

April 4, 2009

Trademark Expert Witness On Branding Part 4

Trademark expert witness William D. Neal is Senior Executive Officer at SDR Consulting and in Modeling Brand Equity, he writes on branding:

We believe the total value of a brand in a particular product/service category is composed of three parts. One part is due to the physical and readily identifiable (and replicatable) features of the brand that delivers specific, tangible benefits to the purchaser, thus impacting purchase choice. We call these the tangible product features. The second part is due to some perceived intrinsic value associated with the brand name due to such things as the image transferred to the purchaser, trust, longevity in the marketplace, social responsibility, consistent performance, and so forth (i.e. the intangibles), impacting purchase choice. We refer to this as the brand's image, or the brand's equity. The third component is the price of the product. Thus, the total value (or utility) of a product or service is a function of 1.) its physical, tangible, deliverable features, 2.) its brand equity, and 3.) its price.

In addition, we believe that a brand's value is directly related to customer loyalty. That is, if a particular brand maintains a significantly higher perception of value to a consumer than any other brand in the category, that consumer will consistently purchase that brand and consistently recommend that brand to others. Conversely, as brands in a category become less differentiated in terms of both tangible and intrinsic features, price becomes the major differentiator of value, and thus, there is little loyalty.

April 3, 2009

Security Expert Witness On Strip Shopping Centers

In Security Solutions for Strip Shopping Centers, author and security expert witness Karim H. Vellani discusses risks and solutions for strip shopping center security:

Strip shopping centers face unique threats not common to other properties. Often considered a safe haven by customers, strip centers contain various types of businesses and stores that create high traffic levels of both vehicles and pedestrians. Shopping centers often contain an anchor store which draws the bulk of the traffic, such as grocery stores and department stores. Grocery stores, in particular, face numerous crime challenges as they meet many customer needs beyond groceries.

The two biggest threats to shopping centers are victimization of employees and customers and the liability associated with such events. The inherent nature of the facility lends itself to high traffic, because diverse businesses are located within the center. This high traffic creates an abundance of targets for criminals. Other factors that can contribute to higher traffic and higher risks are external payphones, banks and automated teller machines (ATM), and the location of the center at major cross streets or near highways. These factors along with other considerations are typically what the real estate department is looking for when selecting and planning new shopping centers as the factors also contribute to marketability. Thus, a fine line exists between marketability and security.

April 2, 2009

Trademark Expert Witness On Branding Part 3

Trademark expert witness William D. Neal is Senior Executive Officer at SDR Consulting and in Modeling Brand Equity, he writes on branding:

A brand's equity therefore becomes part of the tradeoff exercise a consumer considers as they first select their consideration set, then decide which product to purchase. That is, purchasers actively trade off both the perceived tangible benefits and the perceived intrinsic benefits delivered by products in their consideration set, against price, to arrive at their value hierarchy, and ultimately their purchase decision.

Brands that have high perceived value are always included in a purchaser's consideration set. If a brand's combined tangible and intrinsic equities are consistently higher than any other brand in the category, that brand will have the highest customer loyalty in terms of purchase, repurchase, and recommendation. Competing brands can only improve their loyalty against the brand equity leader by lowering price in the short term, improving their product's tangible features in the mid term, or improving their brand's intrinsic benefits, or equity, in the long term.

April 1, 2009

Attacking Independent Medical Examination Expert Witnesses Part 4

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert, attorney Anthony Colleluori writes on what he calls "the lack of attack on prosecution experts" in criminal trials that involve IME expert witnesses and police personnel. Here he writes on what he looks for in a testimonial expert.

In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.
Remember, to get this witness qualified you are going to need:
1. Educational/academic degrees
2. a present position in the field, or recognition within the field.
3. Board Certification
4. Publication
5. Peer review of research
6. A lengthy career
7. Teaching/Lecturing within the field to other experts or at least to beginners.
8. Professional Associations and time within them.
9. Positions held in these associations.
10. Awards and honors achieved within the field and with in any sub-specialty.
11. Available and testifies for all sides not just one or the other. (This is to be able to make the argument that he is not some hired gun but that his testimony is consistent and he will help whoever is right, as opposed to the Prosecutor's "paid parakeet who will repeat anything the Prosecutor says like his livelihood depends on it... because it does..." (You get the idea.)

Assuming that the expert has some, if not all of these qualifications and more, I then look to the intangible aspects that make for a good witness. Testimonial experts are best if they can relate information to a jury without "speaking down" to them. Juror's know the expert is smart, at least smart about something. Hence the expert should not speak to jurors as if they were freshmen in an advanced organic chemistry class, nor should he speak so "high falutantly" that no one but a Nobel Prize Laureate understands him.


Excerpted from Long Island (Criminal) Trial Law.