Articles Posted in Trial Strategy

In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I’ve read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest….

3. Documents Sent Since at deposition he will need to provide a list of all materials that he used and that helped in forming his opinion, you may wish to cover the waterfront and send him everything. When boxes and boxes of materials arrive, he may very well be overwhelmed. Give him some guidance by prioritizing it. I always start with the complaint and get down pat the cast of characters in the case, both individuals and entities. Discuss the allegations of who did what to whom, and when, and guide him to the pertinent documentation on both sides. He needs to understand your opponent’s contentions and the bases for them if he is to defend his own and, hopefully, yours. Make sure the deposition transcripts have the exhibits attached or that your expert knows where to locate them. I’ve run up needless billable hours searching for documents mentioned in deposition transcripts, but not among those sent to me. Discuss with him the reading materials that he has obtained on his own and ask to see them, if practicable. Make sure that he understands the rules of discovery before allowing him to seek advice from his own sources, people or documents. These sources may be invaluable but should first have your approval.

In Interventional Cardiology Expert Witnesses: Essentials for Attorneys, Dr. Burton Bentley writes that “given the widespread prevalence of heart disease in the US population, issues related to cardiology occur in countless medical negligence cases. Consequently, in the realm of medical expert witnesses, the Interventional Cardiology expert witness is King.”

Interventional Cardiology is a subspecialty of cardiology relying upon highly specialized cardiac procedures to diagnose and treat coronary artery disease. Cardiologists who employ these techniques to intervene in the course of coronary artery disease are known as Interventional Cardiologists. Since Interventional Cardiologists have expertise in both the diagnosis and interventional treatment of cardiac disease, issues addressed by Interventional Cardiology expert witnesses may focus on standard of care, breach, and/or harm. Interventional Cardiology experts also opine upon standard practices involving billing, compliance, resource utilization, and observation v. admission status.

Standards of care relate to the principles, practice, and procedures of Interventional Cardiology. The most frequent Interventional Cardiology procedure is angioplasty, also known as Percutaneous Coronary Intervention, or PCI. During PCI, an Interventional Cardiologist inserts a catheter into an artery and then threads the catheter to the level of the heart. The target artery is one or more coronary arteries perfusing the heart. The Interventional Cardiologist monitors the location of the catheter by injecting dye and viewing real-time images during the procedure. When a coronary artery is determined to have significant narrowing due to atherosclerosis (plaque), the Interventional Cardiologist will perform an “angioplasty”, literally reshaping the interior of the blood vessel. The angioplasty catheter uses a tiny balloon to press plaque against the luminal walls of the artery, effectively opening the internal diameter and improving blood flow. In 70% of angioplasty procedures, the Interventional Cardiologist will also deploy a stent. Stents are tiny metal tubes that remain in place to permanently reinforce the artery wall.

In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I’ve read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest.

1. Selection Process Start your search early. I’m always amazed when I receive frantic phone calls from attorneys saying they must designate an expert that day or the next day. Allow time to find an expert, to connect, (considering the usual telephone tag delays), to chat, and to get a feeling for the chemistry between you, and to briefly discuss your case. Ask the potential expert’s experience in the course of his career with matters germane to your case, and ask whether he has ever testified on anything similar. Get his general feelings about your case while keeping in mind that he now has only a thumbnail sketch of the issues involved. Tell him up front your time constraints, if and when a written report is required, and the dates of trial and probable deposition. Make sure he has the time to devote to your case. You don’t want him “squeezing you in” between other pressing cases. Discuss fees and retainers. Ask him to fax you his most recent CV and a list of prior testimony, along with the names and firms of attorneys who have retained him. Check him out. If he’s smart, he’ll probably be looking you up in Martindale-Hubbell within minutes of getting off the phone. If not time- and expense-prohibitive, arrange a meeting either at your office or his. If he is going to come to you, make it clear that you will pay for his time and expenses. There may be experts who are willing to give up a day or more to meet with you for free, but they are not going to be the ones whose time is very valuable and thus probably not the ones you want. I’ve had attorneys who expected me to crisscross the country for an interview with no more compensation than an airline seat. I politely but firmly terminated those inquiries. The first hour of this expert’s time is usually free. After that the meter runs, as it does with lawyers.

In Keeping Internet Searches to Yourself, internet guru, attorney and law librarian

Carole Levitt writes:

For those who are more and more concerned with privacy when researching on the Internet, here’s one of my ABA TECHSHOW tips: Consider using DuckDuckGo.com. It enhances users’ privacy by not storing your search history, IP addresses or user agents, and not passing along your search words to the site you visit when you click on a link in the results list. But, what if you love using all of Google’s advanced search features/instructions (or Bing’s or Yahoo’s)? Well, you can still use them and protect your privacy if you precede your search with what DuckDuckGo calls a “bang,” which is an exclamation point and the first letter of the search engine where you want DuckDuckGo to submit your search. For example, to submit your search to Google and limit your results only to PDFs that have the name “carole levitt” as a phrase, your search would look like this:

In How To Select A Medical Expert Witness: Mission-Critical Steps for Success, medical malpractice expert witness Dr. Burton Bentley writes:

The expert witness is the foundation of any medical malpractice case. From analyzing the elements of negligence to testifying at deposition and trial, your strategic success depends upon competent medical insight. Given the pivotal role played by medical expert witnesses, it is surprising how often the search for an expert is left to chance. Choose incorrectly and you’ve made a common and costly mistake that may prove fatal to your case. Secure the right expert, however, and you’ll build a solid strategy and partnership from the outset. Rather than leaving the decision to chance, the following steps will immediately improve your chance of success:

Assure Board Certification

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness

Avoid the Absolute Lawyers like absolute responses like “never,” “impossible” and “always” because they’re easy targets for attacking a witness’ credibility-even when those attacks are pretty silly.

In Getting The Full Value Of Economic Experts In IP Litigation: A Qualified Expert Is Key, attorney Devon Zastrow Newman of Schwabe, Williamson & Wyatt, P.C., writes:

A plaintiff’s claims in intellectual property litigation may take several forms, including assertion of claims of infringement of the IP right or loss of the plaintiff’s right to the IP through unlawful misappropriation (e.g., trade secret theft). To prevail, the plaintiff must establish three elements: the defendant’s breach of the IP right belonging to the plaintiff; the defendant’s breach damaged the plaintiff; and the measure of damages the plaintiff accrued as a direct cause of the defendant’s breach. An economic expert may be the key to establishing the third element.

When is an economic expert needed?

In Legal Ethics Considerations for Lawyers’ Use of Cloud Computing Services, Internet For Lawyer’s Mark Rosch writes:

We often get questions about the security of “cloud computing” services like Google Apps and whether that security is tight enough for lawyers to use them.

Google Apps, for example, meets the security standards put in place for the online storage of government agencies’ information set out in the Federal Information Security Management Act of 2000 (FISMA 44 U.S.C. § 3541, et seq.).

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness

Don’t Be Jekyll and Hyde We communicate as much non-verbally as verbally, and it’s fascinating to watch how a witness’ body language and demeanor transform from direct to cross-examination. On direct, witnesses are forthcoming and helpful–their engagement and desire to please manifested in their words and physiognomy. On cross, they lean back, glowering, arms crossed, shifting in their seats, quarrelsome and evasive.

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness

I love to testify-in court, at deposition, in declarations and affidavits-and I even like writing reports about my findings in forensic exams.