June 26, 2015

The Care and Feeding of Expert Witnesses Part 2

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.

4. Reports
Don't be shy about offering your suggestions after reviewing a first draft of a report. A good expert has (or should have) an ability to see that this report may be instrumental to the case and be willing to make necessary changes or to opine further on stated points without compromising his independent conclusions. In making your suggestions, it is a good idea to preface them with the words, "If you agree. Ö"

5. Preparation for Deposition and/or Trial
Meet with him the day before a trial or deposition to go over all of the points he will make as well as to prepare him for topics that you expect will be asked. You don't want to be surprised at deposition by any of his answers. Meeting on the day before also allows him time to run through in his head all of his conclusions and bases for them and to review again, alone in his hotel room, any discussions you had in preparations that day. Then have him arrive fresh in the morning, early enough for any last-minute conferring with you.

6. Attitude
This is the most important of all, at least to me. Make him feel he is part of the team and not a "hired gun." Reputable experts bridle at that term and to any vibes they get that they are being thought of that way. Introduce him to the other lawyers on your side and to your client, if you deem it wise. When he is in your office, treat him as you would a client, not as a vendor. If you retain the right person, he is a professional and expects to be treated as one. But while he may be on the team, you are the team captain, and he should not be attempting to try your case for you. If you see tendencies that way on his part, diplomatically suggest that there are legal reasons why you do what you do but that you look to his contributions to those aspects of the case for which you retained him. With a positive attitude on both sides and a clear understanding of his perspective, he should advance your case and help in bringing about a successful result.

Read more here.

June 20, 2015

Cardiology Expert Witness On Essentials For Attorneys

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.

The same PCI techniques of vascular entry and guidewire insertion form the foundation for nearly all Interventional Cardiology procedures. Other procedures include:
Atherectomy: The use of tiny devices such as burrs or lasers to physically remove plaque from coronary arteries.
Balloon Valvuloplasty: The use of balloon catheters to physically open narrow heart valves (e.g. aortic stenosis).
Percutaneous Valve Repair: The use of specially equipped catheters to repair abnormal heart valves.
Transcatheter Aortic Valve Replacement (TAVR): TAVR is a revolutionary non-surgical treatment for aortic stenosis. During TAVR, the Interventional Cardiologist deploys a prosthetic aortic valve that is instantly deployed over the patient’s native valve. The native valve is entirely displaced while the new valve functions in its place.

The most common standard of care allegations include procedural delays, particularly during the treatment of acute myocardial infarction. Other allegations may involve procedural complications such as hemorrhage (e.g. hematoma or retroperitoneal hemorrhage), vessel rupture, nerve injury, device malfunction, embolism, and stroke. Given the complexity of interventional cardiology procedures, only a Board-Certified, full-time practicing Interventional Cardiology expert witness can opine upon the applicable standard of care.

In additional to opining on standard of care, an Interventional Cardiology expert witness is often required to address causation. Causation arguments may arise when an Interventional Cardiologist is alleged to have acted negligently. In other words, did the alleged malpractice result in harm? Interventional Cardiology experts also evaluate causation when a patient suffers a deprivation of care by not being referred to an Interventional Cardiologist in a timely manner. For example, allegations may arise when a primary care provider fails to refer a patient with chest pain, or when an Emergency Medicine specialist delays admission to the cardiac catheterization lab. Such situations mandate meticulous analysis, and only a credible and independent Interventional Cardiology expert witness can connect the dots.

Since Interventional Cardiology experts are also Cardiologists, IC experts are also called upon to determine the existence, nature, extent, and prognosis of cardiac harm. For example, when a patient suffers a myocardial infarction (i.e. heart attack), what is the extent of the injury and how will it impact the patient’s health? Investigating the status and degree of cardiac harm is an essential strategic element is many cases. Once again, a skilled and impartial Interventional Cardiology expert witness will be the key to your case’s success.

In countless areas of medical litigation, from billing and compliance to percutaneous coronary angioplasty, the Interventional Cardiology expert witness plays a pivotal and irreplaceable role. To succeed in your next cardiac case, take the time to properly understand and utilize the knowledge of this mission-critical expert.

ELITE MEDICAL EXPERTS is a physician-based firm specializing exclusively in medical litigation.

From Stanford to Yale, and from every medical and surgical specialty, ELITE MEDICAL EXPERTS secures leading university experts for medical litigation. We work with attorneys for both plaintiff and defense, as well as medical malpractice insurers, to secure the leading medical experts from the nation's top academic institutions.

June 13, 2015

The Care and Feeding of Expert Witnesses Part 1

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.

2. After Retention
Detail as much as possible the areas and questions upon which you are asking him to opine. Obviously, you cannot and should not tell him what his opinions are. After he has had a chance to review materials you have sent, you may certainly ask his opinions and, just as importantly, the bases for his opinions. Challenge him politely to defend them. Your opponent certainly will do so in deposition and at trial! Pick his brain and let him talk. I've had attorneys discover a whole new tack they may decide to take because of what they learned about how things really operate in my discipline. Now that you've retained him, all that he knows and has experienced is at your disposal. Take advantage of it.

Part 2 to follow. Read more here.

June 10, 2015

Keeping Internet Searches to Yourself

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:

!g “carole levitt” filetype:pdf

Carole Levitt (@CaroleLevitt) is President of Internet For Lawyers. A frequent speaker on topics such as investigative and legal research, Google search, social media research and legal ethics, Carole spoke at the TECHSHOW session “Bingoogleduckyahoo!"

For more tips like these, you can purchase her book, The Cybersleuth's Guide to the Internet: Conducting Effective Free Investigative & Legal Research on the Web, 13th edition (2015) at: http://linkon.in/cyberjurispro.

June 7, 2015

Medical Malpractice Expert Witness On The Malpractice Case

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

For medical malpractice cases, your expert must be Board Certified by the American Board of Medical Specialties (ABMS). Although other “boards” exist, only ABMS is universally recognized as the official certifying body governing all medical and surgical specialties. The key is to choose an expert whose ABMS certification and active practice identically match the issues in the case.

Know Your Expert

Perform a background check to learn about credentials, experience, prior testimony, and conflicts of interest. Confirm that your expert was in full-time clinical practice, with a spotless professional record, both before and during the time of the alleged negligence in the case. Before agreeing to proceed, speak with your expert to assure that he or she is a good match with your personal style and case requirements. Since the expert has not yet been formally retained, use the time to meet the expert rather than ask case-specific questions. Knowing that your professional relationship with an expert may span a period of years, invest the time to vet your candidates closely.

Avoid Referral Services

Expert witness referral services rely upon preexisting lists of professional experts. These services simply match the medical specialty required by your case (e.g. Cardiology) with a random expert (e.g. Cardiologist) from a predetermined list. Rather than hand-selecting unique experts with qualifications, interests, and expertise chosen for your specific case, referral services are really selling you a random name from a list of subscribing experts. Experts on referral lists typically have suboptimal credentials, advertise on the internet, and can be located without using a referral service at all. A better strategy is to rely upon established consulting firms, ideally staffed by physicians and nurses, who utilize their resources to locate and hand-vet specific experts uniquely suited for your case. Such experts are true experts, typically serving at the professorial level at major medical universities. Professors of Medicine and Surgery have top-tier credentials and never advertise their expert services. Since university experts are generally inaccessible to the public, you will require assistance in securing an ideal candidate for your case. Only trust reputable and recommended firms with established success working for both sides of the bar. Such firms utilize proven practices that respect the critical importance of transparency and discoverability.

Build a Winning Relationship

The key to winning your case is a rock-solid theory supported by an articulate expert. Start that relationship by relying upon your expert’s honest and independent interpretation of the medical facts. Provide all documents, theories, and questions that you wish, but then let the expert do the work of determining whether the facts support the requisite elements of negligence. If the expert’s opinion is positive, take the time to understand every facet, including strengths, weaknesses, and the likely theory of any opposing expert. If the opinion is negative — a common occurrence in randomly screened plaintiff cases — take a similar amount of time to understand the flaws in your case theory. Although the natural inclination is to feel disappointed, experienced attorneys recognize that a well-reasoned negative opinion saves vast amounts of money and time. When you can confidently rely upon your expert, any opinion holds tremendous value.

Bottom line: Maximize your return on investment and winning success by securing an optimal expert witness early in your case.

Dr. Bentley is the President and CEO of ELITE MEDICAL EXPERTS. With over twenty years of clinical experience, he has provided emergency care to over 60,000 patients. He is also the principal physician of Emergency Medicine Litigation Analysts, Inc., where Dr. Bentley has consulted upon countless claims of potential medical negligence for both plaintiff and defense.

May 7, 2015

Becoming a Better Digital Forensics Witness Part 3

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.

I was once asked to demonstrate cross-examination at a computer forensics conference. The witness was an expert of renown and an unquestionably capable examiner. He brought his laptop running the forensic software he’d written (like I said, a serious expert). I sparred with the witness long enough to make him defensive (and a bit cocky), then gave him a thumb drive holding two simple text files. I asked him to calculate an MD5 hash for each. He glanced at the contents, saw that each contained my name and address, and quickly calculated identical MD5 hashes for the two. I asked him if, despite their different file names, the contents of the two files were identical. He said they were. I asked him if he was certain and tried to toss a little mud on his methodology to get him puffed up. The expert testified that he was certain the files were identical because they had matching hash values. I then had him explain how hashing was a technology central to his evidence authentication, deduplication, chain of custody, etc. I concluded by asking if he was as certain about the two files being identical as he was about the other opinions he’d expressed. He said he was, adding that it was impossible for the two to be different if they have matching hash values.

The hook was set.

I then asked the expert to pull the contents of the “identical” files into a hex editor, and I gave him the offset addresses of six places in the file where there were differences between them. He was floored to find the differences were real. I then wrote the names of the files on the board: 5h1t and 5h1n0la, and I ended my cross-examination noting that he apparently wasn’t expert enough to tell one from the other.[2]

All I’d done to set him up was append my name and address to tiny files engineered by Chinese researchers to demonstrate the feasibility of a MD5 hash collision. The testifying expert forgot the difference between a collision being computationally infeasible and impossible. MD5 hash collisions are real, but exceedingly rare. Never having seen a hash collision and knowing the gargantuan odds against ever seeing one, the expert was maneuvered by hubris into making a categorical statement he couldn’t defend and allowing his credibility to be tied to one point.

Expect the Unexpected
As a trial lawyer, my credo was that even adverse witnesses could do my case some good. I began each cross-examination by getting adverse experts to stress the strengths of my case, sometimes to the point of their conceding things beyond their expertise. Medical doctors would corroborate liability facts, and engineering experts would concede my client was permanently disabled. I could do this because opposing counsel were loath to challenge their own witnesses’ expertise, and the witnesses weren’t prepped to expect the unexpected.

Even without pushing witnesses outside their expertise, I knew every expert could concede something about my case even if it were, “You would agree that my client’s computer was powered by electricity, correct?” If they fought me on everything, it underscored their bias and hurt their credibility.

The lesson: The witnesses making concessions were too sure of themselves to say, “I don’t know,” and the combative witnesses were too invested in the outcome to concede the obvious.

Know what’s out-of-bounds
In most jury trials, the Court determines that there are matters that may not be disclosed to the jury. These may be a creature of statute, of common law or the consequence of a motion to exclude called a Motion in Limine. You need to know what’s out-of-bounds, and sometimes, counsel will forget to tell you. Always ask about excluded matters before you take the stand! Remember that the fact that certain evidence has been excluded may itself be something you can’t mention on the stand.

Occasionally, counsel for the party who sought to exclude the evidence will ask a question that necessitates mention of the excluded matter. This is called “opening the door;” but, don’t be too quick to enter. Let the court and the attorneys see that you are hesitant to respond so as to allow the lawyers an opportunity to seek guidance from the Court. You must carefully balance the Court’s intention to exclude the evidence against the obligation to answer a question that necessitates disclosure. Misjudgment can prompt a mistrial. Accordingly, do all you reasonably can to afford the Court and counsel an opportunity to resolve this before disclosing excluded matter.

Craig Ball
Attorney and Forensic Technologist
Certified Computer Forensic Examiner

May 1, 2015

The Value Of Economic Expert Witnesses

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?

Expert witness testimony is necessary when a party must present evidence outside a juror’s common knowledge, which applies to nearly all (IP) cases. A technical expert explains the technology and whether it is infringed by the defendant. The plaintiff may use an economic expert to explain how economic damages occurred. The defendant’s economic expert, if any, will present an alternative view of the damages.

Most IP cases are litigated in federal court; thus, the expert’s testimony must be admissible under Federal Rules of Evidence 702 and 703. These rules require that the expert be qualified to testify about the subject matter and perform the analysis using qualified information he or she has personally reviewed. The expert must base his or her opinion on facts or data that are the type of information experts in the field would rely on to form an opinion. A party may challenge an expert’s testimony through a pre-trial motion if it fails to abide by FRE Rules 702 or 703. Challenges typically come in pre-trial motions to limit or preclude the testimony. Finally, the expert’s opinions must be relevant to the issues and help the jurors understand them.

Read more here.

Devon Zastrow Newman leads the Intellectual Property Litigation Group at Schwabe, Williamson & Wyatt, P.C. She focuses her practice on intellectual property and complex litigation, and has extensive experience representing patent and trademark owners in infringement actions.

April 26, 2015

Legal Ethics Considerations for Lawyers' Use of Cloud Computing Services

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.).

Cloud computing and "Software as a Service" (SaaS) are two terms used to describe similar services. They allow you to access software, or store files, on computers that are not at your physical location or even in your physical control. Dictionary.com defines cloud computing as:
Internet-based computing in which large groups of remote servers are networked so as to allow sharing of data-processing tasks, centralized data storage, and online access to computer services or resources.

Wikipedia defines SaaS as:
"Software as a service (SaaS, typically pronounced [sæs]), sometimes referred to as 'on-demand software,' is a software delivery model in which software and its associated data are hosted centrally (typically in the (Internet) cloud) and are typically accessed by users using a thin client, normally using a web browser over the Internet."
Gmail and Flickr are examples of cloud computing or SaaS products because they give you access to e-mail software and message storage, and photo storage (respectively) on computers at a remote location.

In August 2012, the ABA House of Delegates adopted changes to the Model Rules of Professional Conduct dealing with the question of whether and how lawyers might deal with "confidentiality issues arising from technology." The changes were suggested by the ABA Commission on Ethics 20/20 and were, "designed to give lawyers more guidance regarding their confidentiality- related obligations when using technology."

So far, only a few State Bar Associations have issues formal ethics opinions on the questions however, they include (in reverse chronological order):
• Connecticut Bar Association Professional Ethics Committee Informal Opinion 2013-07
• Ohio State Bar Association Informal Advisory Opinion 2013-03
• Virginia State Bar Legal Ethics Opinion 1872
• The Florida Bar Opinion 12-03
• Maine Board of Bar Overseers Professional Ethics Commission Opinion 207
• State Bar of California Standing Committee on Professional Responsibility and Conduct: Formal Opinion 2012-184

Most of the opinions already mentioned in this article point to a lawyer's duty to exercise "reasonable steps" to insure the confidentiality of their client's information. Many of them also refer back to Arizona Opinion 05-04 which states that lawyers should:

• "take competent and reasonable steps to assure that the client’s confidences are not disclosed to third parties through theft or inadvertence. In addition, an attorney or law firm is obligated to take reasonable and competent steps to assure that the client's electronic information is not lost or destroyed. In order to do that, an attorney must be competent to evaluate the nature of the potential threat to client electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end. An attorney who lacks or cannot reasonably obtain that competence is ethically required to retain an expert consultant who does have such competence."

• The reality of computer security requires machines connected to the Internet to be maintained and patched on a regular basis. It’s important for lawyers to know what security measures are practiced by whatever cloud service provider they are considering, as well as where and how often vendors back-up the information stored with their services, among other concerns. Regardless of whether lawyers are storing files "in the cloud" or on their office’s local network, they must make a “reasonable effort” to keep that information secure to insure that those computers are as protected as they can be.
• Originally posted 10/30/2011. Last updated 3/8/15.

As Vice President of Marketing for Internet For Lawyers (IFL), Mark Rosch is the developer and manager of the Internet For Lawyers web site. He is the Editor of IFL’s newsletter, and writes and speaks about legal technology for firms and also on how to use the Internet for research and for marketing. The Internet For Lawyers Internet Investigative Research Update blog keeps readers up to date with the latest free and low-cost investigative and background research resources freely available on the Internet. The blog also covers search engine search tips with a focus on Google and its features, functions and productivity tools.

April 16, 2015

Becoming a Better Digital Forensics Witness Part 2

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.

It’s hard not to appear defensive when you’re on the defensive, but stay attuned to your demeanor and body language, and don’t change demeanor between examiners—at least not without a whole lot of provocation.

Open up your posture, unclench your fists and wipe that peevish look off your face. Endeavor not to alter the pace or tone of your answers. Patience is a virtue, so don’t start jabbering just to fill an awkward silence. Be courteous and helpful. Yes, helpful. Of course, it’s not your role to assist the other side; but, being respectful and working cooperatively to move things along helps your side most. Some lawyers will work hard to get a rise out of you. Don’t be drawn in. When you show anger, you squander credibility.
There may be times when anger or umbrage is unavoidable, but be slow to burn. Ideally, the jury or the judge should be awed by your restraint and rooting for you to push back long before you do.

Stay above the Fray
Nailing the bad guy isn’t the point—not for you. You are the digital translator, not the prosecutor. The evidence speaks through you, and justice demands you not omit or embellish. As an expert witness, you are not an advocate for either side. That’s the lawyers’ role. You are an advocate for your own findings and opinions. You can and should vigorously support and defend the skill behind and integrity of your forensic process, your reporting and the expert opinions you’ve drawn. Winning the case is not your objective. The only “win” for you is that the judge and jury listened to you, understood you and believed you.

Remember Who Matters
Court proceedings aren’t about the lawyers. The lawyer for your side is already persuaded, and the other side’s lawyer isn’t going to come around. They don’t matter.
Court proceedings aren’t about you. Yes, you’re a technical wizard and you’ve worked very hard to uncover compelling evidence. But you don’t matter—check your ego at the door.
The only people in the courtroom who matter are the judge and jury. So, speak to them, look at them and help them understand. Of course, you’ll pay attention to the questioner while a question is asked; but orient yourself so that the jury can always see and hear you well, and endeavor to make eye contact with the jurors when giving longer answers. Be alert to cues from counsel, like questions that begin, “Please tell the jury….” That’s how lawyers remind you that you’re ignoring the most important people in the courtroom.

Couch your testimony in terms and analogies that judges and jurors understand. Never assume they know what you or the lawyers know about the evidence or that they come to court with any pre-existing technical expertise. Engage the jury with references to common experiences and accessible analogies like, “We’ve all seen the hard drive activity light on our computers flash when we aren’t doing anything. That may be an instance where the computer is shifting information from RAM to its memory swap file on the hard drive, like leaving ourselves a note.”

Don’t Quibble
Judges and juries hate witnesses incapable of saying “yes” or “no.” A skilled cross examiner frames questions that sound like they can be answered simply, but are calculated to elicit quibbling from the witness. A skilled witness looks for opportunities to plainly respond “yes” or “no,” or something close:
“Yes, as a rule,”
“No, for the most part.”
“There are exceptions, but that’s true.”
“Not in my experience.”
Unless crucial to the case, let the lawyer chase the exceptions.

Craig Ball
Attorney and Forensic Technologist
Certified Computer Forensic Examiner

February 23, 2015

Becoming a Better Digital Forensics Witness Part 1

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.

I love the challenge—the chance to mix it up with skilled interrogators, defend my opinions and help the decision makers hear what the electronic evidence tells us. There is a compelling human drama being played out in those bits and bytes, and computer forensic examiners are the fortunate few who get to tell the story. It’s our privilege to help the finders of fact understand the digital evidence.

This post is written for computer forensic examiners and outlines ways to become a more effective witness and avoid common pitfalls. But the advice offered applies as well to almost anyone who takes the stand.

It’s difficult for computer forensic examiners to hone their testimonial skills because it’s rare to be interrogated by a lawyer who understands what we are talking about. Most interrogators are working from a script. They know the first question to ask, but not the next or the one after that. Pushed off their path, they’re lost. Computer forensic examiners have it pretty easy on the stand. Computer-generated evidence still enjoys an aura of accuracy and objectivity, and the hyper-technical nature of digital forensics awes and intimidates the uninitiated. But, it won’t always be this way. Sooner or later, computer forensic examiners will square off against interrogators able to skillfully undermine ability and credibility. So, it behooves us to strive to be skilled witnesses.

The Trick to Being a Great Witness
Novice witnesses think there’s a system they can follow to stay out of trouble on cross-examination, but no battle plan survives an encounter with the enemy. There are no “tricks” to testifying, except to prepare carefully, listen to the questions asked, answer the questions asked, stick to what you know and tell the truth. The corollaries are, don’t imagine you can “wing it,” don’t anticipate the question, don’t answer the question you think the examiner meant to ask, don’t overreach your expertise and don’t try to snow the lawyers on technical matters.

It’s All About Preparation
Even brilliant, articulate and honest expert witnesses will perform poorly on the stand when they aren’t asked the right questions in the right way. Lawyers invest too little time preparing expert witnesses to present a compelling direct examination, and expert witnesses worry too much about cross-examination. Without a solid direct examination to lay out the key points, getting through cross-examination unscathed doesn’t count for much. There are many reasons why lawyers don’t spend enough time preparing expert witnesses: Lawyers and experts have demanding schedules, time spent with experts may be expensive and egos on both sides may not admit the need for preparation. Still, preparation for direct examination demands more than scripting a few questions and ad-libbing the rest.

The expert witness must help the lawyer understand what the digital evidence signifies and insure that the lawyer won’t stumble on the key terms and concepts. The lawyer must help the expert understand where the digital evidence fits into the overall theme of the case. Both must craft the flow and choreography of the direct examination, including what exhibits and demonstrative aids will be used and how to adapt when things don’t go according to plan (as when the court excludes an exhibit or demonstrative aid). There is no such thing as an over-prepared expert when it comes to direct examination.

Hypothetical Questions and Hearsay
In U.S. jurisprudence, there are two principal advantages afforded an expert witness. First, an expert witness is permitted to answer hypothetical questions; that is, questions where the interrogator lays out various assumptions and seeks the witness’ opinions based on those assumptions. Second, an expert witness is permitted to rely upon hearsay evidence when it’s the sort of information on which experts in the field customarily rely.

Some cross-examiners take their hypotheticals too far and require you to assume unreasonable facts. In that event, push back. Point out that you can’t express an opinion based on so implausible an assumption. Don’t be reluctant to say, “I saw no evidence to support that assumption.” Be wary of being pushed into offering opinions on hypotheticals incorporating elements outside your expertise and experience.

Just because you can rely upon hearsay doesn’t mean that you should. Unassailable opinions are constructed from reliable evidence. Try not to build your testimony on assumptions that may buckle. Always ask yourself, “Why do I take this to be true?”

Compound Questions
A cross-examiner may pose two questions as one, such that an answer to one sounds like an answer to both. When this happens, the lawyer who handled direct examination should object to the compound question; but, if the lawyer doesn’t object, it’s up to you to be alert and keep the record clear. Seek clarification of the question (e.g., “Are you asking me whether I hashed the images or if the hash values matched?”) or address each part separately (e.g., “Yes, I hashed the images, but the hash values did not match due to damaged sectors on the drive.”).

May I Explain?
Effective cross-examiners use classic techniques to control witnesses. They pose leading questions that suggest the desired reply. They avoid repetition of damaging testimony. They ask only questions to which they already know the answer. And they seek to confine witnesses to “yes” or “no” responses to keep witnesses from explaining their answers. Skilled cross-examiners do this so well, you will be like a horse in harness. But skilled cross-examiners are rare. You are more likely to face cross-examiners who will try to bully you into “yes” or “no” responses to questions that can’t be answered that way.

You have a secret weapon when this happens. You can ask, “May I explain please?” Opposing counsel hate that. They want to scream, “No, just say ‘yes’ or ‘no!’” But, they recognize that if you’ve been candid and cooperative, refusing to let you explain will make them look bad to the judge and jury. Like any secret weapon, it’s not very effective once the secret’s out. So, you can only do this once (or twice). Don’t waste it.

Craig Ball
Attorney and Forensic Technologist
Certified Computer Forensic Examiner

February 5, 2015

Medical Malpractice Expert Witness On Hiring An Expert

In The Biggest Mistake Attorneys Make When Hiring a Medical Expert, medical malpractice expert witness Dr. Honor Schoech writes:

I was recently hired as a consulting medical expert by a new client. The attorney was representing an elderly woman who was suing a nursing home for negligence. She needed me to review the case quickly for an upcoming deadline.

Before I received the medical records from this attorney, she sent me a summary of the facts. It was thorough and concise, and the medical terminology used was quite advanced. My initial impression was that I was reading a summary from a physician who had already been consulted on the case. I assumed that I was being hired for a second opinion, and that perhaps the original physician was unable to support her views.

When I discussed the case summary further with the attorney, I was surprised to find out that she had written the summary, and that I was the first physician to be consulted. I thoroughly reviewed the medical records, and it became obvious that she had spent a considerable amount of time meticulously reviewing these same records herself.

Here was the problem. After a thorough analysis of the medical records, I did not feel there was medical evidence to support her case. I did have another angle that I thought she could pursue. Unfortunately, there simply wasn’t time. She had a deadline looming in the near future. She had waited until the last minute to seek a medical expert, and the results were not in her favor.

I feel this is the biggest mistake made by attorneys when hiring a medical expert. They simply wait too long to locate, or once located, to engage a medical expert. This simple mistake can cost an attorney enormous amounts of time and money. Had I been consulted on the above case earlier, I would have been able to point out my hesitation with her approach and we could have tried to regroup and pursue a different angle.

Why is it that attorneys tend to wait too long to hire a medical expert? I think attorneys believe they will be able to find a medical expert quickly, but often don’t consider the time it can take to find the “best” expert. This can be a time consuming process, especially when you are not familiar with medical experts in a specific specialty.

I also think that many attorneys feel like they can and should be able to do the work themselves. That it simply isn’t necessary to hire a medical expert. These attorneys have likely been working on medical cases for years, and may feel competent in analyzing the medical records themselves. While this may be true, it isn’t necessary for an attorney to try to take on the role of medical expert. Doing so can result in significant wasted time and possibly misinterpretation of the records.

How early should a lawyer secure a medical expert for his or her case? Ideally, I think this should be done as soon as he or she decides to take the case. But remember that an attorney can secure a medical expert to help him or her decide whether the case has merit, too. If there is any doubt, I advise letting a consulting medical expert take a look at the records to help you decide. You could be working on something else during this time!

Getting an early read on a case can save you a lot of frustration, time and money. As addressed in the case above, your expert might not even feel that you have a case. You really don’t want this to happen after you have spent hours reviewing the records, which ultimately equates to wasted time.

Additionally, a medical expert can help you considerably to identify the issues if you do have a case. An expert medical witness can quickly spot where standards of care have been breached, if tampering has occurred, and how this is important for your case.

As you work through a case, a good medical expert can save you invaluable time. There are many tasks that you could spend countless hours on, which a medical expert will able to do more quickly and efficiently. (For example: literature searches, medical record review and organization, identification of missing records that need to be obtained.) Meanwhile, you could be working on more important things such as practicing law. Imagine that! You might even be able to take on more cases.

Don’t be afraid to secure a medical expert witness early on. Your expert can tell you whether or not you even have a case, and if you do, help you identify the pertinent issues. Start with a consulting expert ,who is cheaper, and then find a testifying expert later, if needed.

You will be shocked to find out how much time you can actually save, and this will allow you to more efficient, take on a higher caseload, and bring in a better income.

Read more: Dr. Honor A. Schoech
MediPro Solutions LLC

December 6, 2014

Cross-examining the Expert Witness by Dean Brett Part 4

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes on what he describes as "one of the trial attorney's most difficult tasks."

In the three earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination. In Part 4, I will discuss the specific preparation required to undertake an effective cross-examination.

Specific Preparation

After completing these four stages of general preparation, and well before trial, prepare as many specific lines of questioning as possible, each directed at the goal of gathering specific ammunition for use in final argument.

For purposes of suggesting alternative possibilities, these potential lines of questioning are divided into three conceptual categories.

1) The utilizing approach accepts the expertise of the witness, recognizes that he is being favorably received by the jury, presumes that the likelihood of successfully attacking his credibility is outweighed by the danger of jury resentment should you attack and fail to destroy him, and instead uses his expertise to establish positive information supporting your position.

2) The neutralizing approach avoids an attack on the expert’s credibility, but neutralizes the effect of his testimony.

3) The destructive approach aims at destroying the credibility of the opposing expert.

Rather than attempting to “destroy” each expert witness, a difficult and dangerous task, perform a risk-benefit analysis and choose an attainable goal, such as utilizing or neutralizing the expert, depending on the damage done by the testimony, the perceived ability of the witness to withstand a destructive cross-examination, the reaction of the jury to the witness, and your own level of experience at cross-examination and knowledge in the field of expertise.

The Utilizing Approach

Where the expert is honest, impressive and liked by the jury, attempt only the utilizing approach to establish information favorable to your case such as:

(a) General principles of the expert’s discipline with which all experts agree – such as principles of anatomy and physiology on a medical issue, or;

(b) Points of agreement between the adverse expert and your expert (taken from the deposition you have conducted to pin down these points of agreement after your own expert has delineated them for you.)

Again, the advantage of this approach is that you can prepare for it in advance and it is therefore less apt to end in disaster.

Several excellent examples of a utilizing approach with medical witnesses are found in Marshall Houts Art of Advocacy: Cross-Examination of Medical Experts, at Section 107 through Section 1.13.

Generally the utilizing approach is less risky, so it can be used with a strong expert who would likely withstand a destructive cross but who must be “examined” so as to give the impression of confrontation to “soften the impact.” It is less abrasive, so it can be used where the jury seems to like the expert and would resent a destructive approach. It is easier to perform, so it can be accomplished by a well-prepared novice trial lawyer. But it may be inadequate to save the case where the expert’s testimony has destroyed an essential element of the case. In that situation, a riskier cross must be undertaken unless you have foreseen that situation in pre-trial preparation, in which case you should have considered settlement and avoided the problem altogether.

The Neutralizing Approach

Where the expert is honest, impressive, and well-liked by the jury – but mistaken in his conclusions, use a neutralizing approach to take away the effect of his testimony without attacking his credibility. Here is where your work with your own expert to find the error in the adverse expert’s opinion pays off. A jury is more likely to reject the adverse expert’s theory than to reject him as a person as a result of destructive cross-examination attacking his credibility. Jurors are reluctant to believe a witness, even an expert witness, is motivated by prejudice or personal interest.

Where two experts testify to opposite conclusions, the lawyer who attributes the disagreement to the bias, prejudice, or corruption of his opponent’s expert will likely lose to the lawyer who accepts the opposing expert as a nice person who has simply made a mistake – a mistake that is clearly and simply explained in final argument (not in cross-examination) after the ammunition for the analysis is obtained through neutralizing cross-examination.

An expert can be neutralized by an examination obtaining his admission that his opinion is derived from certain facts or assumptions. It is not necessary to force the expert to admit that the facts or assumptions are incorrect. That can be left to direct or cross-examination of other witnesses. In final argument, you then neutralize the expert by pointing out that the expert may be qualified and may have properly reasoned to his conclusions – but from facts or assumptions demonstrated to be untrue.

For example, the loss of earning capacity conclusions of the expert economist can be shown to be based on certain facts and assumptions regarding life expectancy, proper discount rate, earning capacity prior to injury, and degree of vocational limitation imposed by the injury, the last factor usually based on the testimony of an expert vocational rehabilitation consultant. Once the economist has admitted his conclusions are based entirely on his acceptance of the conclusion of the vocational rehabilitation consultant, the economist (perhaps admired and accepted by the jury) can be neutralized by an attack on the supporting conclusions of the underlying vocational rehabilitation expert (who may not be as impressive or as well liked.)

An expert can be neutralized by obtaining his support for the truth of propositions which are either demonstrably untrue or contrary to the beliefs of a majority of the jurors. The propositions need not even be central to the claim, so long as in final argument you infer that any expert who believes the known falsehood to be true is probably also wrong on his central conclusion. Conclusions of experts who do not use “common sense” are easily disregarded by juries.

Another classic neutralizing technique is “the wedge” whereby the expert is enticed to concede that his field, unlike physics or mathematics, is an imprecise area where reasonable people – including expert witnesses – can come to honestly held differences of opinion. Ultimately this admission allows the jury to disregard experts from both sides and decide the issues based on other facts developed in the presentation.

The neutralizing approach, like its utilizing counterpart, is less risky than the destructive approach because it does not involve a toe-to-toe confrontation with the expert witness, a dangerous zero-sum game with a clear winner and a clear loser. It is harder to implement with a court-wise expert than a mere utilizing technique, but when successful it allows the jury to decide in your favor without having to reject an honest, impressive, well-liked expert witness.

The Destructive Approach

The destructive approach directly attacks the credibility of the expert. It therefore will be most vigorously opposed by the expert, and if the witness is liked by the jury, an unsuccessful attempt at destroying the expert will be resented.

How to impeach the expert is best covered in Younger’s The Art of Cross-Examination.

One must prepare in advance of the cross-examination any attacks on an expert for inability to perceive, recollect or communicate; for bias, prejudice, interest, or corruption; for prior convictions, prior bad acts, or prior inconsistent statements; and for a poor reputation for truth and voracity. Never “fish” for answers on credibility at trial, the expedition is too obvious, both to the witness and the jury.

Direct attacks on inconsistencies in the testimony of the expert witness fall into two categories: the testimony may be internally inconsistent or externally inconsistent. External inconsistency, where statements of the witness are shown to be contrary to demonstrable facts or widely held beliefs, was explained under the neutralizing approach.

Examining for internal inconsistency is much more difficult because both contrary propositions come from the expert witness himself. Unless you are careful the expert will withdraw one statement, modify one, or claim that your lack of understanding of his field prevents you from understanding of his field prevents you from understanding that the propositions are not inconsistent. Approach obliquely, at separate parts of the cross, first the least strongly stated proposition (to lock it in, or failing that, to abandon the line of questioning) then establish the proposition more central to the expert’s position. Do not confront the expert with the inconsistency. Save analysis of the internal inconsistency for final argument, merely obtain the ammunition in cross-examination.

Before using the destructive approach consider two warnings.

First, Gerry Spence, perhaps the greatest trial lawyer of our time, and certainly a man capable of destroying an expert where there is any opportunity for attack, warns us never to kill the witness without the jury’s permission. Just because you can destroy the expert does not mean you should. Firs the expert must do, or be led to do, something which allows the jury to understand why his credibility must be directly attacked.

Second, from Machiavelli, never strike at the King unless you can deliver a fatal blow. If you use the destructive approach, prepare well in advance and be sure you have your facts assembled before you begin. A trial is a contest to develop and keep credibility. At the end of a direct attack on the credibility of the expert witness, someone’s credibility will be destroyed – the expert witness’ or the attorney’s.

Destroy reluctantly, but thoroughly.

In the final part of the article series, I will discuss the final preparation and the “Ten Commandments” in conducting a cross-examination.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

November 28, 2014

Trial Consultant Expert On "Crafting Your Case" Part 2

In Discovery “Story Boarding trial consultant expert Molly M. Murphy shares her strategies to get the jury to understand and connect with your case.

A case comes into your office. If you are a defense firm you receive the filed complaint, so you know what the cause of actions are being alleged. If you are a plaintiff firm, a client comes in with the story of being wronged. Plaintiff presents the case and defense picks up the story and begins the discovery of how to defend their client. Whether you are a plaintiff or a defense attorney you both have the responsibility of building your case.

The initial step of working your case up begins with, "What is this case about?" Each side will have their own version of what happened, why it happened and was it avoidable.
Too often the nuances of the details are ignored during the process of discovery.

An effective tool is to story board your discovery. The trial team can share the storyboard. The lead lawyer will be updated with the evidence as it comes in allowing for guidance and a platform for building the story of the case. It is also a great tool to use for preparing your witnesses. You will have mapped out the witnesses and what you anticipate their testimony to be in deposition and in trial. This technique will assist the trial team in building the case with a story that is supported with evidence. There will be no overlaps or cumulative evidence or testimony. The storyboard is also useful in determining the line up of the witnesses for trial.

The storyboard is a spring board to create your visual presentation of the your case. You can create a timeline of dates, events and add the photos that support your case. It is important to help the jury understand who knew what and when. You can highlight favorable and honorable characteristics of your case.

It is during discovery that you develop your themes, banners and strategy. If you can see the big picture of your case then the presentation will be clear and reasonable.

Themes are designed to brand the issues giving a descriptive message. They are also used to provide milestones and give a time frame. Themes and banners will guide and connect the jury to your case. They describe the intentions of the case and will keep the jury focused on your story not the opponents. You want the jury to understand the intelligence of the case.

Additional tools to use in discovery are Focus Groups/Mock Trials and Internet Surveys. They will give you an opportunity to get feedback regarding your trial strategies, themes, case value and credibility of witnesses.

Note: The key to success in working up your case is to "Think outside the Box."

Molly M. Murphy is a Trial Consultant and a Mediator in Santa Monica, California. Over the last 20 years, Ms. Murphy has consulted on well over 600 cases throughout the country, including civil, criminal and class action

November 10, 2014

Trial Consultant Expert On "Crafting Your Case"

In 4 Corners of Your Case, trial consultant expert Molly M. Murphy shares her strategies to get the jury to understand and connect with your case.

Craft the story of your case in a manner that touches the senses of right and wrong. Our listening filters hear what makes sense and what seems right in our own mind. We bring our childhood through adulthood memories in to play when they are called upon through smells, sights, sounds, words, phrasing, tone, images and colors. Our senses are the key promoters to remembering an event or experience. Our attachment to a story leads to a connection. We are all storytellers so we view others’ story with a discerning eye. Question if the storyteller is telling the truth, making it up or worse, trying to be deceptive. The jury is faced with two parties telling them that their side is right and the other side is not admitting to their wrong doing.

There are four main points that you want the jury to understand and connect with your case. You should be able to tell your story with these main points.

The first corner is the “Why” behind the story. What is this case about without all the nuances of the details? Tell the story in the time frame that the events happened. Let the jury know the issues that they will have to resolve. Describe the events, injury and the damage caused. The time frame of events and the witness’s knowledge is critical to get the jury interested and involved in your case.

The second corner is the “History” of the story. Introduce the background of the characters in the case: individuals, corporations, company, departments and divisions and establish the connection of these players. Jurors like to know who the characters in the story are and how they fit in the case. When jurors feel a connection to a witness from the opening statement there may be a heightened interest when that witness testifies. Help the jury connect with the witnesses through photos, stories and vividly place them in the storyline.

The third corner is the “Details” of the story. The devil is in the details. What facts tie together and supports your story. Introduce the specific dialog of the key and intriguing witnesses. Do not interrupt your story with your opponent’s story. This is your time with the jury. Be aware if you are telegraphing any fears, weaknesses, witness problems or lack of strong evidence. This is your opportunity to present your storyboard. Present a visual story with a timeline, milestones, photos, graphics etc. Highlight favorable and honorable characteristics of your case.

The fourth corner is the “Summation” of the story. How the facts and the nuances fit together making your story credible and believable. Highlight the issues that you want the jury to pay attentions to during trial. Present with the notion that common sense is connected to the facts of the case and it will lead the jurors to do the right thing. Most importantly do not tell them how to think!

Molly M. Murphy is a Trial Consultant and a Mediator in Santa Monica, California. Over the last 20 years, Ms. Murphy has consulted on well over 600 cases throughout the country, including civil, criminal and class action

October 26, 2014

Cross-examining the Expert Witness by Dean Brett Part 3

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes on what he describes as "one of the trial attorney's most difficult tasks."

In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.

In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.

General preparation for cross-examination of a defense expert involves four stages:

1) Learn the expert’s subject;

2) Scout the expert;

3) Use your own expert;

4) Establish realistic goals.

Learn the expert’s subject

With help, time and perseverance, you can learn all you need to know about the usually very narrow part of the subject involved as it applies to your client’s situation.

Find a teacher, perhaps a professor at a local college, to conduct a one-on-one directed reading course. For about one-fourth your hourly rate he will review the literature in the area, recommend several general articles to familiarize you with the field, select articles to familiarize you with the field, select specific materials focused on the narrow aspect of the science involved, and then answer questions the readings raise relevant to your fact situation. You would be surprised how hard a college professor will work for $100 an hour – if he hasn’t already learned he can make more money as an expert witness.

It’s a great learning opportunity. You can develop some tremendous friendships. If you do it right the first time, you can develop your own expertise in the subject for use in other cases. And sometimes you can even develop your teacher into an expert witness for your own side as he becomes interested in the forensic aspects of the subject matter.

Robert L. Habush’s Art of Advocacy: Cross-Examination of Non-Medical Experts, by Matthew-Bender at Section 1.18(2) lists the more common sources for gathering technical data for use in cross-examining non-medical experts. Harry Philo’s Lawyers Desk Reference can also be an invaluable resource.

If you are going to litigate in a technical area, you have an obligation to learn that field of expertise. A lawyer should no more file a malpractice action against an accountant without understanding the basic principles of accounting, than he would file a contract action without understanding the basic principles of contract law.

If you do not have the time to learn a subject thoroughly enough to face an expert witness, associate someone who does, then practice in another area of the law. But if you do accept the challenge of learning a new field, the experience can be tremendously rewarding.

Scout the Expert

If you face an expert who has published in his field of expertise, then it is worth your while to obtain and review everything the expert has published. Your teacher or your own expert can trace the articles through the appropriate professional index. Index the publications:

(a) for contradictory statements for use in impeachment,

(b) for general principles supportive of your theory, and

(c) for embarrassing quotations about the limits of the expert’s knowledge.

It is amazing how experts writing for each other in technical journals constantly remark about how little they know and how much research there is to do, yet faced with a jury of laymen they can appear so sure of a conclusion adverse to your client – until cited to their own comments about the limitations of knowledge in their field of expertise.

Even if the writings are not exactly on point, they will often give you a flavor of the expert’s reasoning process, style and personality. And if you are reading articles by an expert, be sure to read the criticisms of those articles by other experts.

Where the expert has not published extensively but has previously testified, trial transcripts and depositions can be obtained from friendly trial lawyers. Start with Jury Verdicts Northwest, a service which compiles all verdicts rendered in Washington State with annotations including the names of the attorneys and the experts called by both sides. Go to the reports, call the opposing attorney and get a copy of the expert’s deposition, listen to a few war stories on how to approach him at trial, obtain the lawyer’s assessment of the expert’s strengths and weaknesses, and if the case was appealed, get a transcript of the trial testimony.

Do all of this before your own deposition of the expert witness. Read the material you obtain. Every expert has his own little tricks to avoid a question he does not want to answer, just like the rest of us. I know I use the same tricks over and over again, and I assume experts do too. And if you have seen a technique before, be waiting with a response.

The heart of preparing for cross-examination of the expert witness is a thorough deposition fully exploring the expert’s qualifications, and conclusions, then assumptions, data, and reasoning used to reach those conclusions.

Use Your Own Expert

Use your own expert to help you learn the subject matter, to scout the adverse expert, and to prepare your cross-examination.

Since anything that can possibly go wrong with the cross-examination of an expert usually does, try out each line of questioning on your own expert to find the defects in your comprehension of the field which may make particular approaches unworkable.

If the upcoming trial is really a battle of experts who disagree, do not let your expert take the position that he is correct based on his superior skill, knowledge, and training. Make the expert explain to you, in simple lay terms, precisely where the adverse expert agrees on common ground, where he accepts different assumptions or “factual” data, where his approaches and reasoning processes differ, and where in each instance the opposing expert is in error.

Attacking the opposing expert as unqualified and biased is not enough, and at times it is even counter-productive, when a jury will more easily believe the expert has simply made a mistake and come to the wrong conclusion, particularly when you can point to exactly where the error was made. Make it an obligation of your expert to explain to you why the defense expert is wrong, so you can explain it to the jury.

Establish Realistic Goals

From the moment the client first walks in the door, everything a good trial lawyer does is focused on one moment – the opportunity he has to stand before the jury in final argument and explain the client’s plight.

Every action the personal injury trial lawyer takes is designed either to prepare for that final argument or to convince an insurance company to pay money so that final argument is never delivered.

Cross-examination is no different. It is merely another opportunity to gather ammunition for final argument. Every cross-examination, every line of questioning, every question is subject to one scrutiny – “How will this help me in my closing argument to the jury?”

The general goal of cross-examination is to advance the “theme” of a case by securing the ammunition needed for final argument.

The conceptual error made by too many lawyers is to analyze the cross, independent of the entire trial, and thereby to set an unrealistic goal – usually the goal of “destroying the witness.” Because of the witness’ combination of expertise, stature, intelligence, and experience, it is unrealistic to expect to “destroy” each expert. Set an achievable goal. Wigmore said that the goal of cross-examination should be to “soften the impact of the witness by confrontation.” With an effective expert, the goal may be no more than to prevent the expert from winning the case for the other side. Don’t expect to win your case in cross-examination of your opponent’s experts, you will be doing better than most if you break even and avoid a disastrous loss.

In Part 4 of this article series, I will discuss the specific preparation of gathering ammunition for use in final argument.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

October 5, 2014

Cross-examining the Expert Witness by Dean Brett Part 2

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes:

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.

In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness.

Against the expert witness defending his home territory, the trial lawyer has four main advantages.

1) The trial lawyer can choose not to ask any questions at all, or more likely, can choose not to ask certain questions. He can avoid certain battlefields. The task of preparing to cross-examine an expert witness is largely one of determining which questions NOT to ask.

2) The trial lawyer can choose to ask only questions which require either a “yes” or a “no” answer. He can take away the expert’s most potent weapon – the monologue.

3) The trial lawyer can learn the specific narrow aspect of the expert’s subject matter that is relevant to the specific issue being tried. He can learn that part of the territory on which the battle will be fought.

4) And finally, the trial lawyer can analyze and criticize the expert’s answers in the home territory of final argument, on his own turf, where the expert is speechless.

Effective use of these four advantages minimizes the expert’s strength, his expertise in the subject matter, and maximizes the trial lawyer’s strength, the ability to question narrowly then comment on the answer without reply.

Put it in perspective, right at the start. The average expert witness knows as much about his or her field as you know about law.

“That means a lot of different things. It means, for example, that the knowledge and ability of nearly any expert is uneven. It means that the typical doctor knows no more about hepatitis, pyloric stenosis or coronary arrhythmia than the average lawyer knows about promissory estoppels, renvoi, or the doctrine of worthier title. It means that a lawyer can learn enough about the flash point of waxes to cross-examine an electrical engineer who specified wax paper condensers in a color television set designed to operate at just 5 degrees lower than the burning point of wax. It also means that the witness – unless he has had previous courtroom experience – is going to be scared.” McElhaney, Trial Notebook, page 167. *

In the remaining parts of this article series, I will discuss:

The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.

- Dean Brett

* McElhaney, James W., Trial Notebook, The American Bar Association, 1981

The next installments of this article series will be:

The four main advantages the trial lawyer has against the expert witness defending his home territory;
The four stages of general preparation for cross-examination of a defense expert;
The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

September 15, 2014

Cross-examining the Expert Witness by Dean Brett Part 1

In How to prepare to cross-examine an expert witness, attorney Dean Brett writes on what he describes as "one of the trial attorney's most difficult tasks."

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.

Part 1 - Why cross-examine an expert witness?

The cross-examination of an expert witness is one of the trial lawyer’s most difficult tasks. The expert must be assumed to be an intelligent person who has focused his intelligence on the particular scientific, technical, or specialized field of inquiry. The rules of evidence allow the expert witness certain unique advantages, including:

the chance to state his opinion (ER 702);
to include conclusions on the ultimate fact to be decided by the jury (ER 704);
to be buttressed by facts or data not in evidence (if of a type reasonably relied upon by other experts in the particular subject matter) (ER 703);
to include facts even if those facts or data would not otherwise be admissible in evidence (ER 703);
to include facts or data which the expert need not disclose in direct examination (ER 705);
allowing the jury to be told the expert was appointed not by your opponent, but by the court (ER 706).

To make matters even more challenging, frequently the expert witness has more courtroom experience and savvy than the cross examiner.

“As a general thing, it is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry. Lengthy cross-examination along lines of the expert’s theory is easily disastrous and should rarely be attempted.” Francis Wellman, The Art of Cross-Examination, 1903.

Why then ever cross-examine an expert witness? Only because you have no alternative.

If you bring a claim of professional negligence or products liability, you are claiming that the defendant made an error in his own field of expertise, and you thereby incur an obligation to your client to prove the standard of conduct in that field of expertise and to cross-examine expert witnesses called to defend on the basis that the standard is not as you allege, or if it is, that it was met.

To fail to cross-examine is to concede the heart of the claim. Even if you try only “simple” negligence claims, you must be prepared to meet witnesses with expertise in engineering, accident reconstruction, medicine, psychology, vocational rehabilitation, and economics, to name a few.

Precisely because they are so difficult to examine, your opponent will insist on presenting the testimony of experts on the critical issues of the case. Those experts, because they are looked up to by the jury and because they are often hired for the specific purpose of destroying a necessary element of your proof, often cause more damage than lay witnesses and thus compel cross-examination. Failure to examine expert witnesses may be viewed by the jury as a surrender on the critical issues they support.

The next installments of this article series will be:

The four main advantages the trial lawyer has against the expert witness defending his home territory;
The four stages of general preparation for cross-examination of a defense expert;
The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.

Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.

August 16, 2014

Corporate Strategy Expert Witness On Marketing Research

In Using Marketing, Business & Competitive Research to Win Cases, business and corporate strategy expert witness Don E. Smith, President, American Consulting Group, Inc., writes that marketing research is a powerful tool that helps lawyers win cases.

Many market research expert witnesses have an undergraduate degree in their specialty (engineering, business, marketing) and an MBA or PhD. They average over twenty years of business experience. Unfortunately, some lawyers do not recognize the value of marketing research...and put their cases at risk. For example, many lawyers bring in an expert to express an opinion based on his/her experiences. In many cases, this experience is narrow; the expert’s testimony is weak. With effective research, numerous facts from a range of sources provide a far more convincing argument.

Advertising effectiveness
Market share
Agent performance
Market size & growth
Best effort evaluation
New product opportunity
Competitive analysis
Profit loss
Dealer performance
Sales loss
Distributor performance
Sales performance
Effectiveness of programs

The keys to the selection and use of marketing research professionals include:
1. Define the hypothesis and the information required to win the case. This
guides you in the selection of your researcher and keeps the research
focused and affordable.

2. Define key words that define the background and experience you
require from your researcher. Such finetuning is now possible through
the use of ExpertLaw.com’s search capability.

3. Use researchers with extensive (a) Business experience and (b) Expert
witness experience. Unfortunately, many market researchers are (a)
Academically strong but do not have in-depth experience in line
management of a business or (b) Not comfortable or practiced in public
speaking and are not effective during the stress of a deposition or trial.

4. One of the strengths of market researchers is attention to detail. This
Can also be a weakness. An experienced researcher recognizes when
details are not required; this saves both time and money.

5. Secure several research-in-progress verbal reports. The information will
provide you with valuable insight to the case and your strategy. It also
helps focus the researcher.

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.