Expert Witness Blog

In More effective use of experts in slip-and-fall cases -
The right expert will help you to better prepare the case and win it at trial, attorney David Reinard writes:

Why to retain an expert
There are two main reasons to retain
experts in a slip-and-fall case. The primary
reason to retain any expert is
because you will need an expert to educate
and persuade your jury. In slip-and-fall
cases, this is vital. In fact, not retaining
the right kind of expert can be devastating
to your case. Starting from the premise
that there is always a reason someone
falls, your expert needs to explain not
only what the defendant did wrong, but
why the plaintiff fell. It is this second
aspect of expert testimony that plaintiffs
often fail to present, and without it, the
jury will use their “common sense” to
answer the why question.
(The Advocate Magazine, March 2012)

David Reinard is AV-rated by Martindale-Hubbell, a member of ABOTA, and is regularly designated a Super Lawyer. He has tried dozens of cases throughout California.

Criminal law expert witness Richard Leo testified last week regarding what he believes was the false confession of Angelica Swartout. The Oregon woman is accused of killing her newborn baby. Dr. Leo is a University of San Francisco law professor recognized for his research on police interrogation practices, the impact of Miranda, psychological coercion, false confessions, and wrongful convictions.

In Businesses find greater need for cyber liability insurance, Mark Schwartz, CEO of Corporate Insurance Advisors, says many small businesses are not aware that their traditional general liability insurance policies do not cover cyber liability claims. Cyber liability insurance expert witnesses may opine on coverage for malicious code or viruses, loss of data, and correlated matters.

Read more: miamiherald.com.

Insurance expert witnesses may testify on commercial liability policies, risk management, and insurance class actions, as well as associated matters. In The Next New Thing: Coverage Issues from Fracking Claims, Brian S. Martin, partner in the Insurance Litigation and Coverage Practice of the law firm of Thompson Coe Cousins & Irons LLP, writes that the next litigation surge may be over the use of fracking in the oil and gas industry.

Read more: insurancejournal.com.

DNA expert witness Alan Keel testified this week in the case against Roger Clemens who is charged with lying to Congress about using steroids. The expert is with Forensic Science Associates in California and testified in the case against the former pitching star.

Defense attorney Joe Amendola requested more time to work with child sexual abuse expert witnesses in the case against Jerry Sandusky. Judge John Cleland denied the request in the trial against Sandusky, retired assistant coach at Pennsylvania State University.

In What Should an Expert Witness Look for in an Attorney or Law Firm?, Dr. Gerry Goldhaber, Goldhaber Research Association, LLC, writes:

Recently, a lawyer’s group discussed in quite a bit of detail, the topic of what criteria a lawyer should consider when retaining an expert witness. While it is important for a lawyer to find a good expert to work with in litigation, it is also important for an expert to find a good lawyer.

My 33 years as a warnings expert has taught me that there are at least five rules that should help the expert maintain a healthy relationship with the lawyer.

Click here to read more, including 1. Clear Statement of Objectives, Timetable and Fees: duiexpertwitness.wordpress.

In Peaks and Valleys for Expert Witnesses construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

“The worst part of a tight economy is a lack of funds to properly represent clients [President Carmen Roberto of the Ohio State Bar Association]. As a defense attorney he has had to forego hiring his own expert witness and relied on cross-examination of the prosecution’s witness. A possible upside is that tools like mediation, designed to ease court dockets, are being used now to save money.” (“Economy has ripple effect on lawyers,” J.D. Bruewer, October 5, 2010, www.limaohio.com.)

There you have it from the source: Attorneys do cut back on expenses in a bad economy and may even forego hiring an expert that they would otherwise have hired in a better economy. This equates to a lower retention rate for experts. That said, and with all due respect to Mr. Roberto, this is generally a big mistake in most cases. As Melvin Belli Sr. said, “The cost may be high to employ the expert, but it may be well higher not to employ one. Indeed, counsel who chooses to proceed without an expert may be flirting with malpractice.” (Melvin Belli Sr., Trial Magazine)

William Gulya, Jr., President & CEO, Middlesex Trenching Company for more than 35 years, specializes in excavation & construction site preparation – earthwork and grading, water mains, sewer installation, trenching, containment, underground utilities, dike repair, heavy equipment rentals. www.siteworkexpert.com

Forensic engineering expert witness Brad Shepherd, P.E., writes on power line incidents:

Overhead electrical power lines are installed on almost all major roadways and many other public and private rights-of-way. They are not insulated from contact (with few exceptions). When installed and maintained in accordance with the National Electrical Safety Code (NESC), they are safe as long as they are not approached (within certain limits) or touched by unskilled hands. However, contacts do occur and the result is always serious injury or death. These incidents usually result in litigation. The determination of why and how the contact was made and its preventability are the purview of the Forensic Electrical Engineer.

Mr. Shepherd has practiced professional engineering for forty years as an electrical engineer and engineering manager in industry.

The jury in the San Francisco Oracle v. Google trial have asked to have the transcripts of testimony from computer experts John Mitchell and Terence Parr reread. Dr. Mitchell is a Professor of Computer Science at Stanford University and and Dr. Parr is a Professor of Computer Science at the University of San Francisco.

Airline industry expert witness Daniel Akins testified in New York bankruptcy court that American Airlines will need to merge with US Airways to recover from bankruptcy. Akins is a transportation economist with over 20 years of industry experience and has been involved in the restructuring of U.S. airlines including American, Continental, US Airways, United, and Hawaiian.

In Peaks and Valleys for Expert Witnesses construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

One would initially think slower business might mean cost cutting on safety or reduced staffing causing overworking of employees, and higher productivity demands by management causing haste and a greater margin for error or bad judgment. Moreover, while some of this may occur, these are not the main reasons for a reduction in the retention of experts. When business slows, the incidents of product failure, construction accidents, personal injury, etc. slow with it. It comes down to simple math -- less opportunity equals fewer occurrences.

Experts who have been practicing for several years, through bad or slower than usual economies, report having experienced increased negotiation of expert fees. Attorneys and referral agencies will actively negotiate in an attempt to lower the expert’s hourly fee. “It’s not personal; it’s just business.”

William Gulya, Jr., President & CEO, Middlesex Trenching Company for more than 35 years, specializes in excavation & construction site preparation – earthwork and grading, water mains, sewer installation, trenching, containment, underground utilities, dike repair, heavy equipment rentals. www.siteworkexpert.com

In More effective use of experts in slip-and-fall cases -
The right expert will help you to better prepare the case and win it at trial, attorney David Reinard writes:

We all know slip-and-fall cases are
among the most difficult to win. We also
know that many people get seriously
injured in falls, so we often are called to
consider these cases and we are often
tempted to take them. Some lawyers wisely
use a “no breaky, no takey” rule to determine
whether to even consider accepting a
slip-and-fall (or trip-and-fall) case. And
unless the case has catastrophic injuries,
most lawyers prefer that some theory of
liability is obvious from the get-go.

Assuming you’ve made a decision to
try your luck, you must take every step
possible to make your slip-and-fall case
different from so many others – you have
to make it a winner. And you have to do
that while managing the cost-benefit
analysis you face in every case. One key
to winning a slip-and-and fall case is to
retain the right experts, on the right
issues, and then use them the right way.
(The Advocate Magazine, March 2012)

David Reinard is AV-rated by Martindale-Hubbell, a member of ABOTA, and is regularly designated a Super Lawyer. He has tried dozens of cases throughout California.

Insurance expert Ty Leverty was in the news reporting that customers pay up to 31% more for insurance when insurance companies have to comply with regulations in more than one state. The University of Iowa professor of finance has also studied how tort reform laws lower insurance premiums and save consumers money, dependent upon where the consumer lives.
Leverty’s paper, “The Cost of Duplicative Regulation: Evidence From Risk Retention Groups,” was published recently in the Journal of Risk and Insurance.

Securities expert witness and Columbia Law School professor John Coffee commented this week on JP Morgan Chase & Co.'s $2B loss. The director of the Center on Corporate Governance at Columbia University Law School says the JPMorgan loss will incentivize the passage of banking regulations, i.e. limitations similar to the Volcker Rule.

Captive insurance expert Stewart A. Feldman is lecturing at the University of Delaware's Captive Insurance Risk Management Certificate Program, April 18 - June 6, 2012. Feldman, CEO of Capstone Associated Services, Ltd., is an expert on insurance companies established with the objective of insuring risks emanating from their parent group(s).

In Peaks and Valleys for Expert Witnesses construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

No matter which field of expertise you specialize in, as an expert witness you will experience peaks and valleys in the number of cases you are retained to opine on in a given year.

This may lead you to question your marketing efforts. And that is not, in and of itself, a bad idea. Your marketing plan should be reviewed every six months anyway. But your marketing program may not be the problem -- it may be the economy. Yes, even expert witness practices are subject to the effects of a bad economy.

Why, however? Let’s take a look at this question in depth. For most businesses, a bad economy or slow economy translates to lower sales and thus lower profits overall. Experts are not exempt from this common phenomenon.

When the economy slows, certain aspects of litigation do, in fact, increase. A case in point is the payment of debt. Business and individuals can have difficulty paying their debts in a bad or slow economy, sometimes resulting in litigation. As a consequence, some experts in the fields of forensic accounting and economics may actually see an increase in their retaining percentage.

William Gulya, Jr., President & CEO, Middlesex Trenching Company for more than 35 years, specializes in excavation & construction site preparation – earthwork and grading, water mains, sewer installation, trenching, containment, underground utilities, dike repair, heavy equipment rentals. www.siteworkexpert.com

The Paralegal Knowledge Institute is presenting Practical Legal Ethics (Four Webinars)

Live Webinars Designed Specifically for Paralegals
Every year, more and more paralegals are facing critical ethical decisions and more and more responsibility for alleged negligence. In a litigious society, no one is immune. Knowing what is required and how to identify problems before they happen is vital.

This intensive ethics program will provide you with proactive strategies for spotting and avoiding potential areas of liability. Find out how simple changes to your routine can make ethical legal practices second nature - enroll today!

Confidentiality - Wednesday, May 15th

Conflict of Interest - Wednesday, May 23rd

Unauthorized Practice of Law - Wednesday, May 30th

IOLTA, Overzealousness & Advertising - Wed, June 6th

More information: http://www.paralegalknowledge.com/.

Insurance expert Robert Desaulniers, who contracts with FEMA, says extra coverage will be required for Newburyport, MA, homes that are now mapped in a higher risk area. The previous maps are from 1985 and over the years, many of the flood insurance maps have become outdated due to urban growth, changes in river flows and coastlines, and even flood mitigation efforts.

Lee County, AL, Circuit Court Judge Jacob A. Walker approved up to $10,000 in state funding for expert witness research and testimony in the bizarre case of a retired Texas state trooper who is charged with poisoning 150-year-old trees on the Auburn University campus. Both a chemist and an arborist expert witness will be working on the defense of Harvey Updyke Jr., a University of Alabama fan who allegedly used the pesticide Tebuthiuron on the old-growth southern live oak trees.

In Pathology of Blunt Force Traumatic Injury, forensic pathology expert witness William A. Cox, MD, writes:

In this article we will review the gross and microscopic appearance of Blunt Force Traumatic Injuries and the mechanisms which causes them. The Blunt Force Traumatic Injuries covered are abrasions, contusions, lacerations, fractures, compression and hemorrhage.

General Concepts
The appearance of blunt force traumatic injuries is determined by the physical characteristics of a moving object, which has an impact on the victim or the nature of the surface, which the moving victim strikes. Whether an impact results in injury is
depended upon its components, one of which is the kinetic energy displaced by the object in motion. This kinetic energy is expressed by the formula MV²/2g, in which M is the weight of the object in pounds, the weight of the object in pounds, V is the velocity in feet per second and g is the acceleration of gravity which is 32 ft. per second. Thus, the ability of an object to induce injury is dependent on its weight and velocity.

Read more: http://forensicmd.files.wordpress.com/2011/05/blunt-force-traumatic-injuries.pdf.

In Challenges in Recovering Deleted Email computer forensics expert witness Steve Burgess writes:

Both computer forensics experts and data recovery technicians seek to recover deleted data. Data recovery is primarily interested in bringing back files, while computer forensics tends to dig deeper, looking not just for deleted documents, but also for metadata (data about data - such as file attributes, descriptions, dates, and other information) and meaningful snippets of unrecoverable files. One area of particular interest is email.

When most documents are written to a computer's hard disk, each newly created document has its own directory entry (what the user sees as a listing in a folder). If a file has been deleted, but has not been overwritten by another document, the recovery process is a relatively trivial part of e-discovery or of data recovery. But when the data of interest is from deleted email, the discovery process is likely to differ significantly from that of data recovery. Individual emails are stored differently than individual files. Different types of email programs store data differently on the user's hard disk and require different schemes for finding useful information. As a result, the deletion of emails and recovering of deleted emails differs not only from that for other types of documents, but also between different types of email programs.

Read more: http://www.burgessforensics.com/email_challenges.php.

A crime scene analysis expert witness will testify in the Hamilton County, TN, trial of Shanterrica Madden, accused of killing her college roommate Clantina Stewart last year. The defense says Madden acted in self-defense when she stabbed Stewart during an argument. Stewart was rushed to Middle Tennessee Medical Center where she died from her injuries.

SEAK Inc. is organizing the 21st edition of its Annual National Expert Witness Conference at the Sea Crest Beach Hotel in Falmouth, Massachusetts on August 23rd and 24th, 2012. The Conference aims to provide support and training to experts from all disciplines and with all levels of experience and promises to provide a discussion on all aspects of expert witness testimony, ethics, and trial techniques by nationally recognized attorneys, experts, judges, and educators.

Download the Conference Flyer

Apartment security expert witness John Harris conducted a forensic evaluation and opined in litigation that resulted in a $20 million award to a female tenant who was raped in her apartment at Promenade Culllen Park in Houston, TX....

Mr. Harris found that the apartment complex did not comply with security industry standards, consensual guidelines and industry best practices regarding notification to tenants of crimes occurring on the property and of dangerous conditions posed by easy accessibility to second floor balconies by unauthorized persons. He determined that notices sent to tenants by management misstated the facts of the previous break-in and withheld information about potential harm to the tenants of the property including the rape victim. As a result of this conclusion the apartment management practices were examined under the Texas’ Deceptive Trade Practices Act and were found to be in violation due the intentional withholding of facts to gain business.

In Apple v. Motorola , Judge Richard A. Posner, US District Court for the Northern District of Illinois, denied Apple's motion to block the deposition of one of its expert witnesses. The patent case is scheduled for trial in June.

Attorneys for Christopher Harris have hired DNA specialist Dr. Julie Heinig in a Logan County Court, IL, murder case. Harris is charged in the 2009 robbery, assault and murders at the Beason family home. Heinig is the Assistant Laboratory Director at the DNA Diagnostics Center and previously served as Senior DNA Analyst at the Cuyahoga County Coroner's Office.