Expert Witness Blog

Design patents expert witnesses may provide reports regarding patent infringement, computer patents, design patents, and international patents and licensing. In DESIGN PATENT PERSPECTIVE: Use of Experts in Design Patent Cases, Robert G. Oake, Jr., answers the questions:

Do I need an expert?”
What issues can an expert testify on?
Will the expert testimony satisfy threshold evidentiary and case law
requirements?

Mr. Oake is a registered patent attorney specializing in design patent litigation. Read more: http://www.designpatentschool.com/assets/Use%20of%20Experts%20-%20Part%201%20-%20Feb%202012.pdf

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 #2: UTILIZING AN EXPERT WHO IS NOT BOARD-CERTIFIED BY THE AMERICAN BOARD OF MEDICAL SPECIALTIES
When credibility and professionalism is paramount, it is surprising that so many firms utilize experts with questionable credentials. Although the internet has provided countless means by which any “expert” can purchase “board certification”, there is only one universally accepted gold-standard for Board Certification: The American Board of Medical Specialties. The ABMS is a non-profit organization that oversees standards and certification for all twenty-four recognized medical and surgical specialties.

Truly Board-Certified specialists are known as Diplomates and are identified by the words, “American Board of…” preceding the name of their specialty. For example, “Diplomate of the American Board of Emergency Medicine”. Other copycat “boards” employ similar sounding names though they may not use the designation of “American Board”. A Board-Certified actively practicing physician is the only expert with whom an attorney should consult. Utilizing an expert with questionable credentials may prove fatal to your case.

In a struggling economy, injury attorneys working on contingency can lower their risk with potential cases in multiple ways; medical chronologies and an initial opinion of case merit are key components in lowering the upfront risk in a medical malpractice case. Mednick Associates, a 20 year veteran of the industry, outlines tactics that can be employed with almost any case.

The current economic effects of running a law firm are increased when working on a contingent basis. Overhead, employee costs and marketing expenses do not slow down when your case load does. Below are three tactics to use when determining the chances a case will have a favorable outcome.

1) Medical Chronologies: Obtaining medical records is always time consuming, but the real bottleneck is in how they arrive. Complex cases with multiple hospital stays, long treatment periods and numerous operations present medical records from varied institutions and with mounds of information to dissect. Having a chronology done for complex cases, saves the attorney, and their staff, time and allows a medical professional to produce a product that can be used throughout the litigation process. Critical facts, if organized, may change ones outlook on a case at the outset, after a summary of the facts are reviewed.

Read more: http://www.virtual-strategy.com/2013/03/05/3-ways-fee-contingent-medical-malpractice-litigators-can-limit-their-exposure-risk-down-e#ixzz2PFUH8lZx

In Event Data Recorders: Proper Evidence Collection in Criminal, Insurance and Tort Liability Investigations, accident investigation expert witness Shawn Gyorke writes:

The mandatory terms of this type of legislation (preservation of physical evidence), which demands the preservation and production of all forensic evidence, can be reinforced by the explicit terms of a corresponding criminal code, wherein law enforcement can be found criminally culpable for failures in compliance. Under the Illinois statute, it is “unlawful for a law enforcement agency or an agent acting on behalf of the law enforcement agency to intentionally fail to comply with the provisions of subsection (a) of Section 116” 3. A violation of this statute constitutes a Class 4 Felony for which an Illinois law enforcement official could be fined up to $25,000 and/or imprisoned for 1 to 3 years.

Many other states, including Alaska, Arkansas and South Carolina4, have similarly worded procedural codes requiring the preservation of all forensic evidence on serious crimes. However, the list of states with legislative requirements for the preservation of evidence expands to an overwhelming majority wherein specific biological or DNA evidence could be collected. While the scope of this additional legislation is not discussed within the confines of this article, it could be argued that only on the rarest of occasions, is blood or other biological material not deposited at the scene of a fatal traffic crash.

Shawn Gyorke is a Certified Accident Reconstructionist with education, training and experience in the investigation, reconstruction, and analysis of personal injury and fatal traffic crashes. His company is Crash Data Services, LLC.

At LawTimes.com orthopedic trauma surgery expert Dr. Michael Ford offers an expert witness checklist in orthopedic cases. Ford says sometimes attorneys don't know what information the expert needs for their case. He offers a checklist here:

http://www.lawtimesnews.com/201303119665/Commentary/Speaker-s-Corner-An-expert-witness-friendly-advice-on-information-he-needs-from-lawyers

Dr. Michael Ford is an orthopedic spine and trauma surgeon at Sunnybrook Health Sciences Centre who has more than 20 years of medical legal experience.

In The Expert Witness: Selecting and Managing A Vital Resource, attorney Dennis Wall, Insurance Claims and Issues Group, Inc., writes on managing expert witnesses. In the article he discusses the “gatekeeper” model for the admission of expert opinion testimony as well as admissible testimony. Mr. Wall is the author of Litigation and Prevention of Insurer Bad Faith and co-author of CAT Claims: Insurance Coverage for Natural and Man-Made Disasters.

Read more: http://www.propertycasualty360.com

In The Use of Expert Witnesses in Breach of Fiduciary Duty Cases, attorney Luke Lantta writes on allegations of undue influence and breach of fiduciary duty that arose in the trust case Sierra v. Williamson, W.D. Ky. Mr. Lantta discusses how the federal court qualifies experts in such cases.

Mr. Lantta is the founder and principal editor of BryanCaveFiduciaryLitigation.com, Bryan Cave's legal blog focused on litigation that affects corporate and individual fiduciaries.

In Help! My New House Is Falling Down, architect Peter Lattey writes that uncovering construction defects requires an expert to discover the cause of damage.

Next comes the slightly tricky part. As a good lawyer, you need to have a construction defect expert that you can call on to help assess the issues of the case. This needs to be an expert who understands the two main areas of dispute in construction defect cases; construction contracts and the technical aspects of construction. The design and construction contracts define who is responsible for all aspects of the project, who approves the work, who pays for what and so forth. There are standard contracts available but these are not always used, and when they are used they are often not adhered to. This is especially true in small projects such as single family homes but can also be true of large commercial projects.

Construction today is a complex business. Even a single family home can have 20 or 30 trades installing different systems. When the systems are installed incorrectly they can interact in unexpected ways to create problems. Then the problems will need to be sorted out. This is no game for an amateur.

But here is the conundrum for you. If you take the case you will need an expert but you don’t want to hire them until you have the case. Should this a problem for you? Not really. Call up your friendly building defect expert and ask him to take a walk around the site with you and the owner. An hour or two at the home should be enough to have a very good idea of what the issues are. This will also be a good opportunity to pick up those missing contracts, plans and other documents. If you decide to take the case, the expert can bill their time. If not, he can chalk it up to marketing as you do. If you and the expert have a relationship of trust, then he shouldn’t have a problem attending the initial site visit. If he doesn’t trust you enough to attend the site visit, then that is another issue that needs to be addressed in a different discussion.

More information: www.peterlattey.com

In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge
Province of Nova Scotia, offers trial preparation guidelines including:

When testimony is finished, clarify status as witness.

It is the judge who permits the witness to leave the stand by excusing the witness. This means the witness is free to stay in the court or leave. The witness may however, be required to remain for further testimony or return as the court instructs. If the latter occurs and the witness has other matters to attend, the witness may explain this to the court and ask for another time to attend. The court may or may not grant the request.

Read more at: http://www.lectlaw.com

In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge
Province of Nova Scotia, offers trial preparation guidelines including:

Accept the unfamiliarity of testifying rules.

The main objections raised by counsel to expert testimony arise because of hearsay and a proper foundation for the opinions expressed. Objections may be to the question asked or the answer given. When an objection is raised, the witness should refrain from speaking until the court instructs otherwise. The witness should not attempt to justify comments unless asked to do so. The witness is not to respond to an objection, argue about comment or whether or not the evidence should be heard. After an objection is raised, the court rules on the objection and instructs counsel how to proceed.

Read more at: http://www.lectlaw.com

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 #1: FAILING TO THOROUGHLY ANALYZE A CASE BEFORE ACCEPTING IT.
Every experienced litigator knows that medical negligence cases are rarely as simple as they may appear. Complex subject matters, debatable standards of care, and precarious links to causation often conspire to sabotage both plaintiff and defense. The essential key is a meticulous and realistic analysis of the elements of negligence in order to develop a strategic plan. Hiring an “expert” that simply reinforces your own preconceptions is a sure road to disaster. Indeed, successful attorneys know that a negative or contrary opinion from an expert is often more valuable than a positive one. With so much at stake, the quality of your expert is one of the most important factors in achieving success

Medical malpractice expert witnesses may consult on issues involving medical negligence, healthcare providers malpractice, and medical malpractice litigation. The American Academy of Pediatrics Committee on Medical Liability and Risk Management offers Guidelines for Expert Witness Testimony in Medical Malpractice Litigation on their website. The article includes discussion on standards of care, medical errors v. negligence, and more.

See: http://pediatrics.aappublications.org/content/109/5/974.full.

In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge
Province of Nova Scotia, offers trial preparation guidelines including:

Guideline #12 - Answer only what is asked.

Be precise and do not offer gratuitous comments. Answer only what counsel or the court asks. If clarification or interpretation is needed, do so as necessary. It is better to acknowledge lack of expertise in a specific area than to risk misleading responses. Failure to acknowledge a possible second interpretation may result in a loss of credibility. Do not assume that counsel or the court are familiar with the profession, its descriptions and prescriptions. Assume that the evidence and the manner it is presented, will be assessed for validity and weighed against other evidence.

In The Emotionally Labile Client; Duties – When A Client Threatens Violence, Jeffrey Segal, MD, JD, FACS, et al. and Michael Sacopulos, JD, write on what happens when a client threatens violence. See http://www.medicaljustice.com/.

Published in Elon Law Review, 2012, Spring, pp55-70.

In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge
Province of Nova Scotia, offers pretrial preparation guidelines including:

Attend by court ordered summons or subpoena only.

The expert witness attends court at the request of a party or by court summons or subpoena. The expert witness should consider being formally ordered to attend rather than attending voluntarily. There are advantages to attending by court order.

In Four Reasons Why The Location Of A Medical Expert Witness Is Becoming Less Important, Diane Manders of Mednick Associates writes:

The physical location of a medical expert witness, while in no way related to the competency of the witness, has always been a concern of attorneys litigating medical, health, toxic tort or injury cases. Conventional wisdom says the closer the expert is to the venue of a trial, the higher credibility they will have with a jury. Proximity, like it or not, tends to breed confidence and eliminates the question on why an attorney had to “go to the other side of the country” to prove his/her case.

However, as the world has grown smaller so has the potential stigma of an out of state or out of region medical expert witness.

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

In Cross-Examination of Experts: Where to Start, Richard A. Cook, Esq., offers a list of areas to review including Learned Treatises, Private Investigators, and more. Mr. Cook, member of the Indianapolis law firm Yosha Cook Shartzer & Tisch, is a former Assistant U. S. Attorney for the Northern District of Indiana. He writes as a guest blogger for http://theparalegalsociety.wordpress.com.

SEAK, Inc. is offering the program How to Excel at Your Expert Witness Deposition January 26-27, 2013. SEAK has trained well over 20,000 expert witnesses, physicians, lawyers and nurses nationwide, and is located on Cape Cod, MA.

How to Excel at Your Expert Witness Deposition is fast moving and content rich. The course is taught using five methodologies: lecture, interactive exercises, videos of experts testifying in real cases, mock deposition demonstrations, and questions and answers.

More info: seak.com.

In How to Prepare for, Take and Use a Deposition, litigator Daniel P. Dain writes "The deposition of an expert witness is the culmination of the opposing party’s defense or prosecution." Mr. Dain is a founder and the managing partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston, MA. His book includes over 50 forms in print & on CD, including custom-crafted motions & case-specific deposition checklists. Topics include:

Goals and Strategies
Legal Research of Issues
Written Discovery of Expert Witness Opinions
Sample: Interrogatory to Identify Expert Witness and Opinions
General Outline of Expert Deposition
Qualifications of Expert Under FRE 702
Impeachment of Expert’s Qualifications
The Expert’s Understanding of Case Related Facts
Basis for Each Opinion of the Expert
Scientific, Technical or Specialized Kowledge Under FRE 702
Authoritative Treatises
Expert Opinions
Scope of Examination of Expert Witness
Putting It All Together Into a Deposition Outline

Excerpted from How to Prepare for, Take and Use a Deposition.

In Deposing an Expert Witness, litigator Daniel P. Dain writes:

Goals and Strategies

The deposition of an expert witness is the culmination of the opposing party’s defense or prosecution theory of the case. Before taking an expert’s deposition, the parties should have completed fact discovery—interrogatories answered, documents obtained, lay witnesses deposed. Presumably, your opponent’s expert witness has been advising the opposing attorney about documents to be requested in the course of written discovery and about oral discovery questions that should be asked of the lay witnesses, so that the fact evidence necessary to the expert’s opinions has been established. The expert’s opinions are being offered by the opposing party as part of a plan to defeat your case. Deposing your opponent’s expert ­witness is your opportunity to understand, limit and hopefully stop defeat. The importance of being prepared to depose this expert ­witness cannot be overemphasized.

Excerpted from How to Prepare for, Take and Use a Deposition.

Mr. Dain is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston, MA.