April 26, 2014

Medical Expert Witnesses On Persuasive Expert Testimony

In Persuasive Expert Testimony, medical expert witnesses at American Medical Forensic Specialists write:

The March 2014 issue of Plaintiff Magazine discussed the secret in turning a jury of common people into smart alecs on complex medical or science concepts.

The key to capturing the attention of lay people on specialized or unfamiliar subjects is in the direct examination of experts. During direct examination, begin by establishing the credibility of an expert. To do so, meet the requirements of the Evidence Code in the state or federal jurisdiction. In California, for example, the Evidence Code requires an expert to be with “special knowledge, skill, experience, training and education” to render an opinion if the subject matter is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.”

The expert’s testimony should include the explanations behind the opinion because jurors are normally not physicians or scientists. In California, after hearing from experts, jurors are read jury instruction, CACI 219: “During the trial you heard testimony from expert witnesses. The law allows an expert to state opinions about matters in his or her field of expertise even if he or she has not witnessed any of the events involved in the trial.

You do not have to accept an expert’s opinion. As with any other witness, it is up to you to decide whether you believe the expert’s testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert’s testimony. In deciding whether to believe an expert’s testimony, you should consider:

a. The expert’s training and experience;

b. The facts the expert relied on; and

c. The reasons for the expert’s opinion.”

Usually at trial, both parties introduce experts who may render opinions that oppose each other. In California, the judge will instruct the jury under CACI 221: “If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters that each witness relied on. You may also compare the experts’ qualifications.”

When jurors have no subject matter understanding of medicine or science, they will have hardship in deciding which experts to believe. To make the decision process easier, draw on their experiences when eliciting expert testimony. According to the Plaintiff Magazine article, this means: (1) get and keep the jurors’ attention, (2) answer unspoken questions, (3) inspire and satisfy curiosity, and (4) help the expert make the complex easy.

To grab attention, decrease the length of the expert’s qualifications. Then satisfy curiosity by giving examples on why the jury should listen such as showing a medical malpractice expert knows about heart surgery on children by asking how many surgeries the expert performs each year, whether he or she teaches others on how to do surgeries, and the books the person has written. Satisfy the jury’s suspicion on the expert’s opinion by giving the real basis of the opinion through a step by step protocol that ends up at the logical conclusion. Use analogies to simplify the complicated.

When an expert witness establishes credibility, gains the trust of the jurors, and explain the complicated in a way that is understandable, a party’s probability of success at trial increases.

April 16, 2014

Pulmonary Medicine Expert Witness On Benefits Of Medical Expert Part 2

In Why a Medical Expert Witness Can Make or Break a Case, pulmonary medicine expert witness Dr. John Penek, MD, FCCP, FAASM, writes:

Whether the court case is civil or criminal in nature, both plaintiffs and defendants can benefit from the use of a medical expert witness. This is especially true in an era where forensic technology is growing by leaps and bounds.

Just what can a medical experts offer in the realm of traditional jurisprudence?

Role of a Medical Expert Witness.

Just like an orthopedic surgeon can attest to damages done to the spine or back during a personal injury lawsuit where a hurt plaintiff is suing for monetary compensation, an an expert may be able to prove that the injury claimed by a money seeking plaintiff is being over blow in an effort to obtain ill gained reparations.

Because a medical expert can make or break a case in this regard, their importance cannot be understated.

Present unbiased view of events.

Most court trials involve two views of events that can be difficult to sort through and prove. Because the outcome can in some cases be literally be a matter of life and death, it pays to be able to separate fact from fiction.

Science itself is fairly irrefutable and with a few notable exceptions is rarely inaccurate. This is why medical science can then be employed to prove or disprove claims on both sides of the fence.

Corroborate exonerating evidence.

Medical expert witness can help people who have been wrongly accused by providing information via testimony that breaks down a scenario based on medical evidence. When jurors are given these tools, they are able to weigh various factors to arrive to a conclusion. When irrefutable evidence is presented by such experts, the job of the juror becomes a whole lot easier.

Strengthen the case for the prosecution.

The same can be said for proving defendants guilt. Nine times out of ten, people who are criminally accountable for death or harm and injury to an individual will lie about the circumstances. A medical expert witness can dispute claims of innocence by producing information that calls their story into question.

As forensic technology continues to expand, the testimony and services of a medical expert witness will become a near standard in both civil and criminal court cases. This will lower chances of innocent people being falsely imprisoned for crimes they didn't commit and reduce the chances of the guilty walking away scot free.

For this reason, medical experts will forever change the landscape of the
criminal justice system.


Dr. John Penek has 30 years experience in the practice of pulmonary diseases, sleep disorders and critical care medicine.

March 12, 2014

Forensic Accounting Expert Witness On Corporate Securities Lawsuits Part 7

In EFFECTIVE VALUATION & LITIGATION SUPPORT IN CORPORATE SECURITIES LAWSUITS, forensic accounting expert witness Richard M. Squar, CPA, CVA, ABV, CFF, MBA-Taxation, writes:

CASE LITIGATION SUPPORT AREAS

The valuation expert assists legal counsel in the preparation of briefs, either by review of a draft brief prepared and/or focused discussion of issues with legal counsel prior to preparation of a brief. Also, critique of opposing counsel’s briefs are helpful interpretations and insights into the case.

Providing document and data lists for discovery is useful to the case. The expert can assist legal counsel to develop clear, incisive, and relevant interrogatory questions maximizing the quality of information received.

Similar to expert witness testimony, the depositions both attended and given by the valuation expert can be invaluable in assisting legal counsel to ask effective questions of opposing experts and present the valuation expert’s opinion in a concise and clear manner.

An office with good research resources and capable assistance is necessary for the valuation expert to be effective. It is not merely a “computerized on-line, easy to get all relevant data” world. There is an art to researching important data and asking the right questions that an effective valuation expert and his or her staff will be excellent at doing.

Appropriate damage calculations and reviewing the computations by the opposing experts are valuable services to the client. The client needs to present its computation of damages (if more favorable than the opposition’s figures) to give the court more convincing evidence of damages advantageous to the client.

So there you have it. One of the best decisions directors can make regarding corporate securities litigation is to assemble a talented professional team. Make sure the valuation expert you choose is effective in both valuation and litigation support, having the traits reviewed above.

Oh, by the way, you need to check out your potential personal liability and insurance coverage.

Richard M. Squar has over 23 years experience in public accounting providing expert advice in the areas of business valuations and litigation support; corporate, partnership and individual tax planning and representation before taxing authorities; and profit enhancement.

February 24, 2014

Forensic Accounting Expert Witness On Corporate Securities Lawsuits Part 6

In EFFECTIVE VALUATION & LITIGATION SUPPORT IN CORPORATE SECURITIES LAWSUITS, forensic accounting expert witness Richard M. Squar, CPA, CVA, ABV, CFF, MBA-Taxation, writes:


CASE LITIGATION SUPPORT AREAS

• Early case involvement
• Assisting in coordinating, selecting and supervising other experts on the case
• Assessing the case
• Critique of the opposition
• Expert testimony
• Rebuttal
• Assistance in preparing briefs
• Discovery
• Data management
• Preparation of interrogatories
• Depositions
• Research
• Damage calculations

The effectiveness of the valuation expert’s relationship with the client and legal counsel is improved when clients work closely with the expert from the beginning of the case. Assessing the merits of the case by estimating a reasonable range of values and in weighing the risks involved in going to court can be helpful in determining settlement positions to negotiate. A decision to go to court will be based on sound assessment of the situation from a valuation viewpoint. The preparation for the litigation will usually be more organized and thorough.

The effective valuation expert can help coordinate other experts on the case where many are needed, such as in damage analysis cases. The valuation expert can assist in selecting and supervising other experts by providing contacts to find additional experts required to complement the valuation effort.

In assessing the case, the valuation expert determines the appropriate levels of value to consider. Relevant questions are developed that require answering by the valuation expert. There is added benefit in helping the client and attorney focus on relevant questions, in defining the case to the client’s advantage, and to achieving a successful outcome.

Critique of the opposition can occur at any time during the case. By reviewing the opposing expert’s report, the valuation expert determines a level of soundness to the report and position the opposing expert is relying upon. If the opposing expert’s work appears very sound, this might be influential in the client and attorney considering settlement proceedings seriously. If the opposing expert’s report is weak, then there may be excellent foundation for the client to pursue litigation in court.

Expert testimony is obviously a critical service to provide. Rebuttals to the opposing expert’s work can take various forms, including noting mathematical errors to the court and providing substantial authority through research disputing an assumption or position taken by the opposing expert.

Richard M. Squar has over 23 years experience in public accounting providing expert advice in the areas of business valuations and litigation support; corporate, partnership and individual tax planning and representation before taxing authorities; and profit enhancement.

February 10, 2014

Forensic Accounting Expert Witness On Corporate Securities Lawsuits Part 5

In EFFECTIVE VALUATION & LITIGATION SUPPORT IN CORPORATE SECURITIES LAWSUITS, forensic accounting expert witness Richard M. Squar, CPA, CVA, ABV, CFF, MBA-Taxation, writes:

LITIGATION SUPPORT FROM THE BUSINESS VALUATION EXPERT

What characteristics and support does the effective valuation expert provide to the board of directors in corporate securities litigation that is a tremendous asset in the case?

ATTRIBUTES OF THE EFFECTIVE VALUATION EXPERT

Personal Characteristics
• Maintains a sense of self
• Intelligent, uses sound judgment and objectivity
• Resourceful
• Communication skills
• Demeanor
• Handles stress
• Open-minded
• Patient
• Professional attitude

Professional Characteristics
• Competency
• Previous litigation experience
• Real-world transactional experience
• Academic background
• Recognized professional designations/active involvement
• Independent and unbiased
• Considerable professional judgment
• Consistent with prior case testimony

The expert always maintains a sense of self with confidence and professional behavior. The valuation and/or damages opinion rendered on the witness stand is the expert’s, not someone trying to be who they are not. Communication skills are vital. Success is when the expert can verbally support the rationale for conclusions independently reached.

A calm demeanor conveys competence and self-confidence. The valuation expert possesses the ability to think and communicate clearly and assertively while under pressure. Effective expert witnesses are able to see both sides of an issue and are willing to concede a point if justified. The patient, skilled expert witness listens and considers each attorney’s question before answering. A professional attitude maintained by the expert allows acceptance of criticism during cross-examination without taking it personally.

Although previous litigation experience is invaluable, the effectiveness of the valuation expert is enhanced by experiences in real-world transactions involving purchases and/or sales of businesses. Academically, the valuation expert is a high achiever in endeavors providing the requisite background in the fields important to business valuation. Professional certifications such as affiliation with the American Society of Appraisers with business valuation designation, Certified Public Accountant, Chartered Financial Analyst, and member of National Association of Certified Valuation Analysts only available to Certified Public Accountants are qualifying factors for the expert. Active involvement by attending current seminars in these types of organizations is recommended.

The valuation expert maintains independence and is unbiased throughout the case. An independent appraiser advocates only his or her position, and does not advocate for the client. The valuation expert’s opinion must be presented honestly in an unbiased manner without advocating differing client positions. Certainly the expert can assist the client and attorney in preparing the best possible case. There must be no actual or perceived bias on the part of the valuation expert.

The testimony of the effective valuation expert must be consistent with prior testimony. Expert testimony is part of public records and an attorney can easily extract prior testimony to possibly uncover contrary opinions of the expert. Certainly each case is different, but the expert’s testimony can be discredited by opposing counsel by showing the expert previously testified to an opposite conclusion in an earlier case.

Richard M. Squar has over 23 years experience in public accounting providing expert advice in the areas of business valuations and litigation support; corporate, partnership and individual tax planning and representation before taxing authorities; and profit enhancement.

January 25, 2014

Child Abuse Expert Witness On Abusive Head Trauma

On his website, child abuse expert witness Dr. Michael R. Weinraub, FAAP, explains Abusive Head Trauma. Dr. Weinraub is a Board Certified Pediatrician with three decades of clinical practice experience.

Formerly called Shaken Baby Syndrome (SBS) this form of child abuse is now called Abusive Head Trauma (AHT). While protecting children from infancy onwards from abusive head trauma (AHT) is of primary importance, recent concerns have been raised in specific cases about the degree of medical certainty of AHT as a diagnosis where a broader differential diagnosis may offer explanations of the findings that are not due to abuse.

A standard of care medical work-up of a case of suspected AHT starts with a medical history including a determination of when the child was last well, if ever; a physical examination and review of prior physical examinations and other findings in the medical records; and consideration of current laboratory and radiology findings resulting in a differential diagnosis. This differential diagnosis consideration of various medical conditions as well as of the timing of the findings will assist the physician in forming an opinion of the causation of these findings. For example, findings of brain swelling may arise from an abusive event or may be secondary to a medical condition such as a seizure that caused hypoxic brain injury and swelling. In the process of a medical work-up, one medical explanation may offer the most reasonable explanation for the findings or a medical explanation may offer a reasonable explanation of the findings equally as well as an abusive cause.

Most significantly, the finding of the SBS triad of retinal hemorrhage (RH), subdural hematoma (SDH), and brain swelling is no longer sufficient for making the medical diagnosis of AHT. A closer look at more descriptive factors of each element of the triad is needed including: other causes of retinal bleeding may be found from noting the location, type and quantity of RH along with other findings of retinal injury; SDH may have occurred due to birth injury or a prior infection and an abnormal birth record or pediatric outpatient history may offer evidence of a chronic SDH with re-bleeding as the cause of a child’s sudden deterioration; and brain swelling due to hypoxia from non-abusive causes may be noted without invoking a theory that severe shaking has occurred. As a pediatrician I have the responsibility to both protect children and to preserve families by offering a thorough medical review of the all of the facts available and to examine the reasonableness and certainty of the medical opinions and diagnoses concluded from those facts.

Read more: Dr. Weintraub.

January 13, 2014

Forensic Accounting Expert Witness On Corporate Securities Lawsuits Part 4

In EFFECTIVE VALUATION & LITIGATION SUPPORT IN CORPORATE SECURITIES LAWSUITS, forensic accounting expert witness Richard M. Squar, CPA, CVA, ABV, CFF, MBA-Taxation, writes:

In conjunction with statutory definitions of value, additional levels of value are analyzed for their applicability.

FURTHER LEVELS OF VALUE

Relative Levels of Value
• Enterprise value
• Marketable minority interest value
• Nonmarketable minority interest value

Other Levels of Value
• Forced nature of transaction

The valuation expert considers the appropriateness and applicability of relative levels of value once the standard of value has been determined. Relative levels of value refine the valuation approach to further economic logic. This refinement involves appraising dissenting shareholders’ interests based on a percentage of the enterprise value (value including a premium for company control), discounting the enterprise value for lack of control to determine marketable minority interest value (value based on market prices), or further discounting due to lack of marketability of minority interests to determine nonmarketable minority interest value. Statutory definitions of value must allow for application of these concepts.

Certainly, if allowed by state statutory law in dissenting shareholders’ actions, such as a statutory merger, the forced nature of the transaction supports an economic argument that the dissenting shareholders should receive some premium above a minority interest value. The corporation is forcibly taking their shares, and all shareholders are compelled to tender and forgo future participation in the ownership of the company.

Richard M. Squar has over 23 years experience in public accounting providing expert advice in the areas of business valuations and litigation support; corporate, partnership and individual tax planning and representation before taxing authorities; and profit enhancement.

January 7, 2014

Evaluating The School Safety Expert Witness Part 6

In Evaluting An Expert Witness For School Safety Cases, school safety expert witness Michael Dorn writes:

Questions to Ask a Potential Expert Witness for School Safety Cases

...Top experts usually welcome and respect intelligent and careful clients who take the time to ensure the capabilities of the expert and the needs of the client are a good match. The most qualified experts know that the closer the prospective client looks, the better the expert witness will look compared to less qualified individuals. Though some experts might answer these questions untruthfully, an attorney might be able to recover damages from the expert if the case is lost due to the false claims of the expert.

Interviewing an expert with appropriate questions during the initial meeting can eliminate many potential problems. While most attorneys who contact a potential expert witness naturally focus on the case they have, it may be more productive to instead focus on whether the person is the right expert for the case. In most cases where I served as expert witness, the attorneys were referred to me by a third party and already knew about me and had vetted me to some degree. But there are things the attorneys would not be easily able to assess without asking me directly. For example, it would be hard for them to determine whether I have ever been withdrawn from a case or fired by an attorney unless they asked me directly. Though I have never experienced either, an attorney would likely not be able to determine this without inquiring.

Mr. Dorn is Executive Director of Safe Havens International, a non-profit school safety center.

January 4, 2014

Forensic Accounting Expert Witness On Corporate Securities Lawsuits Part 3

In EFFECTIVE VALUATION & LITIGATION SUPPORT IN CORPORATE SECURITIES LAWSUITS, forensic accounting expert witness Richard M. Squar, CPA, CVA, ABV, CFF, MBA-Taxation, writes:

The appropriate standard of value to apply is where the expert often begins.
STANDARDS OF VALUE

• Fair Market Value
• Investment Value
• Intrinsic Value
• Fair Value

The purpose and objective of the valuation determines the applicable standard of value. For many of the corporate securities valuation issues, the applicable standard of value is mandated by law and continuously refined based upon court decisions. This can present some concern. Why? Not only is the law fluid and ever-changing, but the facts and circumstances assumed in the determination of value can differ by state, which creates confusion and inconsistent application.

Fair market value is the amount at which property would change hands between a willing seller and a willing buyer when neither is acting under compulsion and when both have reasonable knowledge of the relevant facts. Investment value is substantially the same as in real estate terminology as “value to a particular investor based on individual investment requirements.”

Intrinsic value reflects a value determination from examination of the corporation by stock analysts tempered by how noted particular attributes are viewed by one analyst versus another.

For stock studies, intrinsic value is used by a security analyst to determine the appropriate price for a stock. A “fundamental analysis” of the company’s assets, earning power, and other pertinent factors to the specific circumstances is performed. Intrinsic value is a key factor in determining damages relating to corporate securities fraud. One primary theory of calculating damages in fraud cases, the “Market Model” method, focuses on dividing the market price of the shares on the relevant date(s) into: (1) the security’s intrinsic value, the value that would be the market price if not for the fraud; and (2) the fraud component, which is the amount of the market price less its intrinsic value. Application of calculations and differences occurring at dates of alleged fraud and company corrective disclosures are used to determine damages.

Fair value is a legally created standard of value that applies to certain specific transactions. When there is actual or possible stockholder dissent, research of the legal precedents applicable to each case is necessary.

In most cases, a definition of fair value will not be clear and concise. California is amongst a few states with dissolution statutes (California Code Section 2000) in which minority shareholders can trigger a corporate dissolution under certain circumstances. A study of case law and precedents, however, does not necessarily lead one to the same definition of fair value using dissolution statutes in comparison to dissenting shareholder statutes.

Richard M. Squar has over 23 years experience in public accounting providing expert advice in the areas of business valuations and litigation support; corporate, partnership and individual tax planning and representation before taxing authorities; and profit enhancement.

December 3, 2013

Carson Nash Funding, Inc. & Expert Witness Fees

In Expert Witness Fees Deferred Until Settlement of Case, Carson Nash Funding, Inc. explains how their company provides funding to expert witnesses that allows trial lawyers the ability to defer payment of expert witness expenses until their cases settle.

Expert witness expenses are one of the largest and most significant expenditures a trial attorney has to make. All case expenses are paid up front as the case progresses and trial lawyers are not compensated until the case settles.

Expert witness fees plus additional case expenses and practice overhead expenses create restricted budgets for trial lawyers and may limit their ability to accept new cases to expand their practice.

We provide funding to expert witnesses that allows trial lawyers the ability to defer payment of expert witness expenses until their cases settle. No up front costs or monthly payments are required.

Attorney Benefits

Pay expert witness fees when case settles

No high interest rate lines of credit

No collateralized debt using contingent cases

Contingent cases are not encumbered

No monthly principal or interest payments

Engage more expert witnesses for cases

Access to experienced. seasoned experts

Preserve operating capital to take on more cases

Increase marketing for new clients


Expert Witness Benefits

Offer attorneys deferred payment of fees

Increase client base

Increase case load

Increase revenue

Maximize profits

Increase market share

Maximize billable time

Carson Nash Funding has over 24 years of experience in providing an alternative funding source for individuals and companies receiving deferred payments which are not serviced by traditional financial institutions. Read more: http://carsonnash.com/ew.html.

November 29, 2013

Demonstrative Evidence Expert Witnesses

Demonstrative evidence expert witnesses may consult on courtroom exhibits, computer reconstruction, computer animation, forensic animation, and simulations. While demonstrative evidence is not real evidence, it illuminates the points being argued in court. In How to Build the Visual Foundation of Your Case, attorney Morgan Smith describes how to create simple yet effective graphics. Mr. Smith recently gave a presentation for the Melvin Belli seminar on trial practices, hosted by the Santa Clara County Trial Lawyers Association. He advises:

Start creating graphics to build the visual foundation of your case before the first depo is taken, so that you can go to depositions with a basic to-scale visual diagram of the incident scene. Then witnesses and experts can add in details.

Cogent Legal Blog, shares real-world advice about trial graphics, case presentations, legal tech and litigation strategy. "We blog to help attorneys make their case and manage their practice in the most effective and least stressful way possible. Who are we? Litigators like you." Cogent Legal was voted “the best presentation provider” in Northern California for 2013 in The Recorder’s annual poll of law firms and legal services.

October 16, 2013

New Features On Fastcase

In Fastcase Offers New Features and Services, Internet For Lawyers principal Carole Levitt writes:

On a recent visit to Fastcase, I noticed a number of new features and services available for users.
Alerts

The first was something new on the search results page—an Add Alert option. When you click the Add Alert button, you are saving your search and asking Fastcase to alert you by email whenever new documents are added to Fastcase that match your search terms. To cancel your alert, go to Options | Manage Alerts.

Fastcase’s libraries include primary law from all 50 states, as well as deep federal coverage going back to 1 U.S. 1, 1 F.2d 1, 1 F.Supp. 1, and 1 B.R. 1. The Fastcase collection includes cases, statutes, regulations, court rules, and constitutions. Fastcase also provides access to a newspaper archive, legal forms, and a one-stop PACER search of federal filings through our content partners.

Internet For Lawyers principals Carole Levitt and Mark Rosch have been selected as 2013 Fastcase 50 award recipients. The peer-nominated award recognizes "50 of the smartest, most courageous innovators, techies, visionaries, and leaders in the law."

September 26, 2013

Cross Examination of Legal Nurse Consultant Expert Witnesses Part 2

Legal nurse consultant expert witnesses may testify on general nursing, surgical nursing, palliative care, and medical record review, as well as related issues. In “Nurse experts: Are YOU prepared for cross-examination?” by Juris Educational Resource Knowledge guest blogger Lori Combs RN, LNC, writes that "Extensive preparation is needed to ensure the expert is well versed with the case and is prepared for the dreaded cross-examination."

According to Jim McElhaney (2011), a Litigation Columnist at the ABA Journal, there are eight ways to cross-examine a witness, both expert and lay[1]. First stated is that opposing counsel (OC) is going to try and make the witness their witness. They will try to get them to speak on their clients behalf instead of going at them head on in a defense attack. This occurs when the OC switches the questioning around so that you, as the LNC witness, will be talking about their client in a manner that is more beneficial to their issues.

More: http://www.thejerklnc.com/blog/?p=1673

September 18, 2013

Livestock Expert Witnesses & Livestock Accidents

Livestock expert witnesses may advise regarding livestock accidents, farming, and livestock production. In livestock cases ranch owners have been found negligent when farm fencing was not properly maintained resulting in farm animals wandering onto a highway and causing an accident. Livestock accidents also include the deaths of farmers killed each year in cattle-related deaths after blunt force trauma to the head or chest. OSHA.com writes that "According to the National Safety Council, agriculture is the most hazardous industry in the nation."

In Use of Experts in Livestock Accident Cases, attorney Edward A. Smith writes that "livestock accidents are amongst the cases most commonly mishandled by inexperienced attorneys." Mr. Smith considers it "crucial that a lawyer handling these cases has the proper experts immediately available for use, including investigators, fencing experts and animal behaviorists."


September 14, 2013

Cross Examining Expert Witnesses

At ABAJournal.com, McElhaney on Litigation, Jim McElhaney writes: Enter Angus: His Initial Words of Wisdom Focus on Cross-Examining Expert Witnesses. McElhaney spent 25 years as a litigation columnist for the ABA Journal and in this article he discusses ways to cross examine an expert, including MAKE HIM YOUR WITNESS.

Read the article: abajournal.com

Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.

September 12, 2013

Construction Site Expert Witness On Hiring The Cream Of The Crop Part 1

In Finding the Cream of the Crop: Hiring an Expert Witness construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

There are multiple ways to locate the expert you need, such as referral agencies, online and print directories, and searching by keyword on the Internet. When you find an expert who at first glance seems to be what you are looking for, contact them and delve deeper into his or her qualifications. The responsibility to verify that the expert is qualified and will meet your case needs is yours. Be sure to investigate the background of the expert, and ask for references. Once you have located several names by any of the above methods and have performed your due diligence, how do you decide which expert is really what you are looking for, the right one for you and your particular case?

Interviewing the Expert
It is practically impossible to meet every potential expert personally, so most interviews are conducted over the telephone. Initiate your conversation by disclosing the names of the key players such as your client’s name, the names of your adversary and their client, your firm and contact information and the jurisdiction of the case. Describe the pertinent facts and circumstances of the case so the expert can check for conflicts of interest and advise if he or she feels the matter falls within their area of expertise.

Assuming the expert does not have a conflict of interest, believes he or she is qualified to opine and is available to be retained by you, there are important questions you should ask prior to retaining the expert, such as:

1. How long has the expert been in practice?
2. How many times has the expert been retained?
3. How many times has the expert testified in court and/or been deposed?
4. What percentage of testimony has been for the plaintiff/defense?
5. Has the expert ever been disqualified as an expert?
6. Does the expert maintain files on opposing experts?
7. Will the expert assist you in preparing what discovery items will be important to him or her?
8. Will the expert suggest deposition questions you need to ask?
9. Has the expert worked on a similar case to yours?
10. Has the expert published any articles or books?
11. If the field requires licensing does the expert have a current license?
12. Does the expert have a client list of references he or she can provide?

William Gulya, Jr., Middlesex Trenching Company, specializes in excavation & construction site preparation and is author of the book, “The Straight Truth: The Life of an Expert Witness.”

September 2, 2013

Cross Examination of Legal Nurse Consultant Expert Witnesses Part 1

Legal nurse consultant expert witnesses may testify on general nursing, surgical nursing, palliative care, and medical record review, as well as related issues. In “Nurse experts: Are YOU prepared for cross-examination?” by Juris Educational Resource Knowledge guest blogger Lori Combs RN, LNC, writes that "Extensive preparation is needed to ensure the expert is well versed with the case and is prepared for the dreaded cross-examination."

No matter how well prepared you are to testify as an expert, the cross-examination by the opposing counsel can be intimidating. There are many tricks and techniques the opposing side will utilize to try to discredit you and “poke you full of holes”, but if you can prepare yourself to think how they are going to cross-examine you, you can remain one step ahead and hold your ground.

More: http://www.thejerklnc.com/blog/?p=1673

August 30, 2013

Legal Fees Expert Witnesses

Legal fees expert witnesses may advise regarding attorneys' fees, expert witness fees analysis, and fee disputes, and more. In The determination of expert witness fees/attorney fees, and the same as taxable costs, Judge David Hoort, Ionia County, MI, writes:

Expert witnesses may be paid a fee in excess of the fee paid to an ordinary witness with the trial court’s permission and that the fee paid to the expert witness may be taxed as part of the taxable costs. MCL 600.2164(1). An expert is not, however, entitled to compensation—as a witness—for every service that the expert may have provided.

Read more: http://judgedavidhoort.blogspot.com/

August 11, 2013

Use Expert Witnesses Early

In Use Experts Early, J. Patrick McConnell, Odin Feldman Pittleman Law Firm, writes:

Many of the divorce cases we handle involve closely held businesses, complicated banking transactions, commingling of separate and marital funds and difficult financial issues. The rules in most courts require the disclosure of expert witnesses and what they are going to say at a fairly early stage in the litigation. Too often practitioners wait too late to designate expert witnesses and they are blocked by the Courts from using experts.

Read more: http://www.virginiadivorceandcustodylaw.com

July 14, 2013

Mistakes Attorneys Make With Medical Negligence Cases Part 4

In Seven Costly Mistakes Attorneys Make With Medical Negligence Cases, Dr. Burton Bentley of Elite Medical Experts LLC writes:

Although the rate of negligence claims against medical providers has begun to level off, the cost of litigating these actions has risen dramatically. Vast amounts of time and money are lost when attorneys — whether retained by plaintiff or defense — pursue a non-meritorious case or litigate a worthy case inefficiently. Beware of the following costly errors:

MISTAKE #6: INCOMPLETELY ANALYZING EVERY REFERENCE ARTICLE CITED BY THE OPPOSING EXPERT.
Both expert witnesses and litigators frequently misquote the very literature that they cite. Subtleties in phrasing and statistical analysis may lead to widely disparate interpretations of the same article. Valuable strategic opportunities are missed when these errors go unchallenged. Crucial advantages are gained when an experienced expert carefully reviews all citations with respect to the case.

MISTAKE #7: FAILING TO RECOGNIZE RECORDS PRODUCED BY AUTOMATED TRANSCRIPTION SYSTEMS.
The use of automated medical transcription systems is clearly on the rise. These systems utilize a transcription program to convert a physician’s spoken report into a typed medical record. Despite their convenience, the reports generated by these systems may not accurately reflect the clinical encounter. This occurs when the physician employs a “template” — a set of standardized default statements that are entered into the medical record. Although the record appears complete, close scrutiny may reveal statements that are inaccurate or inapplicable. For example, when a physician dictates, “Normal exam,” the computer may insert an entire series of statements such as, “The chest finds the lungs to be clear and the cardiac tones are regular without murmur. The abdomen is soft, active, and benign.” In other words, simply by saying, “Normal exam,” a seemingly complete report can be created. The problem arises when these default statements are factually inaccurate, inapplicable, or implausible. Once this occurs, plaintiffs may be confounded by a chart that appears to be bulletproof while defendants may worry that their gratuitous documentation will damage their credibility. An experienced and objective expert will be familiar with these systems and will work with counsel to highlight both strengths and weaknesses.

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