Expert Witness Blog

In Insurance Industry Expert Testimony: Is It a Legal Conclusion or Custom and Practice?, Anthony J. Zarillo, Jr. writes:

As a general matter, whether expert witness testimony is admissible has been subject to challenge on a wide variety of issues throughout federal and state courts. The issues triggered by decisions such as Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Inc., and Kumho Tire Co., v. Carmichael, have particular application and importance as well to questions regarding testimony provided by experts in the insurance industry....

Anthony J. Zarillo, Jr. is a founding shareholder of the law firm of Bevan, Mosca, Giuditta & Zarillo, P.C., which represents the insurance industry.

In The Case for Forensic Polygraph Testing in Post-Adjudication Sexual Offender Examination and Management, polygraph expert witness Ken Blackstone writes:

Proposed Solution

Forensic polygraph examination has safeguards which keep its error-rate below 10 per cent. This type of polygraph testing is frequently used in the legal, intelligence and investigative communities. As an example, the popularity of the polygraph in the Federal agencies arena is encouraged by the high caliber of training and supervision provided its examiners. Similar standards and training need to be developed and deployed in the area of post-adjudication assessment and management of sexual offenders.

Utility tests, such as the ones most currently popular in sex offender management programs, actually invite errors (false positives and false negatives). A “false positive” can result in a waste of professional resources and it can unfairly hamper the otherwise honest sex offender who is trying to rebuild his life. A “false negative” can allow recidivism that could have been stopped before anything happened*. Here are some examples where forensic polygraph examination may have helped prevent tragic crimes from occurring:

* Phillip Garrido was a registered sex offender on Federal and State parole for rape when he abducted then 11-year-old Jaycee Dugard and while he held her captive for the next 18 years. He was excluded from required polygraph.

*John Couey was a registered sex offender in Florida and was on state probation when he abducted, raped, and murdered then 9-year-old Jessica Lunsford. His probation supervision failed and he was excluded from polygraph surveillance. Jessica’s body was discovered as a result of a polygraph examination.

Examples such as Garrido and Couey represent statistical outliers; however they underscore the need for a disciplined approach that requires forensic testing methods and standards.

Ken Blackstone is an expert regarding polygraph examinations. He is the author of the book Polygraph, Sex Offenders, and the Court (2011, Emerson Books ISBN 978-061-5506-80-7). www.blackstonepolygraph.com

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Finally, there is the all important expert report. A logical, detailed, well-structured and well- written report can promote settlement. On the other hand, a hurried expert analysis is frequently flawed, inconsistent and poorly written, allowing an opposing attorney to have a field day questioning as to inaccuracies and conflicting statements and challenging the credibility of the expert. Allowing the expert sufficient time to make sure his or her thoughts are clear and all the pertinent facts along with opinion, conclusions and supporting evidence are presented in an easy to read and understandable fashion is essential.

Experts must be objective. The expert’s goal is to search for facts, expose the truth and provide opinion and conclusion based on them. Selecting the right expert for your needs is not always easy. The diligent, experienced trial counsel will engage and retain the expert early in the litigation process, which pays invaluable dividends.

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

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

An expert who knows the industry and the acronyms, lingo, and generic terms associated with that industry can be a valuable asset in preparing deposition questions for your adversary. Taking your expert to adversary depositions can be extremely helpful. Many times, the person being deposed will say something that to the attorney may sound logical and reasonable; however, the answer may have contained industry terminology that camouflages the truth. An expert who is thoroughly familiar with the vernacular of the trade can recommend questions exposing restrictive or misleading language. The ability to query cautiously worded answers can change the impression intended to be conveyed by your adversary.

Provide the expert with enough advance notice that you require his or her services. A well- rationalized, logical opinion and conclusion must take into account a large number of factors. I have worked on many cases where, on simply reviewing and reflecting back on the facts and evidence, I realized and discovered additional evidence, which solidified and confirmed my opinions and conclusions.

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

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

If you feel you have a marginal case, an expert can assist you in framing the issues and facts. A qualified expert will possess the industry experience to instantly spot where industry standards and practices have been violated and can explain why these departures are important for your case. The expert has likely also seen and participated in similar cases so he can translate evidence into causation. You may lose this very valuable assistance if an expert is retained late in the process.

Another detrimental aspect of retaining the expert too late is retaining him or her after the discovery period is closed. A qualified expert can tell you exactly where to look for potentially damaging evidence on your adversary, which may support your position. What may not seem important or relevant may in fact be the smoking gun you are looking for. Attorneys know the law and are experts in the law. They often do not know the intricacies, nuances, and particulars of specific industries such as heavy or site-work construction methods, means and industry standards that apply to them.

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

In Working with Experts Part I, accident investigation expert witness R. Craig Jerner, PhD, PE, writes:

..Put your expert on board EARLY. Don’t wait until literally “the last minute.” How many times have I heard, “Dr. Jerner, I need your help; these are the facts; can you help me? I have to designate an expert today or tomorrow!” Attorneys who wait until “the last minute” are shortchanging themselves and their clients by not utilizing an expert’s years of experience....Some, but certainly not all of the advantages of getting your expert “on board early” are:

1. Early examination of evidence might confirm (or deny) that viable litigation exists.

In the recent past, a plaintiff attorney client sent me evidence concerning an accident which happened about two years prior. His expert report deadline was rapidly approaching. After a preliminary visual examination and limited laboratory testing, I called and posed several important questions for the attorney to ask his client, and also suggested the possibility of an additional defendant. Several weeks later, the attorney called back with word to stop my investigation. He had found that his client had “lied to him” and the facts he/we thought to be true were not. I suspect that numerous hours of the attorneys valuable time and considerable resources had been spent needlessly pursuing a “dog that wouldn’t hunt” for maybe as long as two years!

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Today, more than at any other time, many cases are settled, won or lost based on the testimony of the expert witness. The real difference between an expert who will help make or break your case is the depth and range of the expert's experience within the industry involved in the litigation.

I am often asked in an initial interview "How many times have you testified at trial?" I have been involved in many cases. I am proud to say, however, that very few have gone to trial, but instead have been settled in my client's favor, commonly after submitting my expert report, supplementary expert report or rebuttal reports. The point is that the right expert is not necessarily the one who has gone to court the most. No expert can turn a case without warrant into a success, but the right expert can highlight the strong parts of your case with enough credibility to produce a beneficial outcome.

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

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

What an expert does not know can and likely will hurt your case. It is widely accepted knowledge that a good lawyer never asks a question to which they don't already know the answer; so it is with an expert. By withholding facts or materials that you think are not relevant or may not enhance your case, you run the risk of allowing your expert to be ambushed, surprised and/or embarrassed. Expert witness testimony is invaluable and can be summed up in one word -- credibility. You are better served by providing the expert everything.

The experienced and ethical expert is not interested in running up unnecessary bills to the client. They are concerned about having all the information, being kept informed about developments, and having access to the attorney or attorneys on the case. An open line of communication builds confidence for both the expert and the client and enables your expert to reach out to you with new ideas, discoveries and materials that provide for the best possible performance at depositions and trial. New technologies such as online meetings improve collaboration and reduce cost for travel.

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

In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Once the need for an expert becomes inevitable through fact pattern or because your adversary has made the choice for you by their strategy to use an expert, you should retain and consult with your expert as soon as possible. The earlier the expert is involved in the case the faster they become thoroughly familiar with significant facts. This advantage will often expose elements of your case that you may not have considered initially. Your expert should be able to give you an objective and detailed analysis of both the strengths and vulnerabilities that may be faced, specific to the areas of his or her expertise.

Waiting to choose an expert until later in the process runs the risk of being unable to retain the best candidate for your particular litigation. The most frustrating situation you can put your expert witness in is with a request to review extensive materials in an unrealistic time line and often where experts on the other side have been in place for some time and thus have a distinct advantage.

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

In Get with IT: Once More Into the Breach, Kevin Beaver, information security expert witness with Principle Logic, LLC, writes:

Imagine the scenario: Your network has been penetrated and sensitive data has been exposed. From a public relations mess, to an expensive forensics analysis, to improper handling of breach notifications, to those affected — everything that could have possibly gone wrong has taken place in the aftermath of the breach.

Soon thereafter, your clients and business partners discover what was going on and you end up getting sued. The expert witness for the plaintiff’s attorneys has provided guidance as to what could have been done to prevent this data breach — the systems and controls that should have been in place — as well as how things should have been handled once the breach was detected.

The plaintiff’s legal team sends over document requests asking you to produce....

Read more: securityinfowatch.com.

In Cross-Examining a Financial Expert, white collar crime expert witness Mr. Henry J. Kahrs, CPA/ABV/CFF, CMA, CFE, CM of RGL Forensics writes:

OBJECTIVE I: EXCLUDE OR DISCREDIT

When the goal is to exclude or discredit the opposing financial expert’s opinion, attorneys may opt to:

* Proceed with a Daubert Challenge
* Attack the Appropriateness of the Expert’s Methodology
* Attack the Underlying Assumptions
* Attack the Quality of the Work

Daubert Challenges

The number of successful Daubert challenges will increase as attorneys improve their skills at demonstrating the following:

1. Qualifications - The expert does not possess the prerequisite qualifications
2. Methodology - The expert did not use appropriate methodologies
3. Application - The expert failed to apply the methodologies properly, and
4. Support for Opinions - The expert failed to support his conclusions or establish a direct link between the litigated actions and the calculated damages

In Cross-Examining a Financial Expert, fraud expert witness Mr. Henry J. Kahrs, CPA/ABV/CFF, CMA, CFE, CM of RGL Forensics writes:

The best way that attorneys can prepare for this important moment in the courtroom is to start with three primary steps. First, gain an understanding of the basic methodologies used in forensic damage analysis and the generally accepted processes employed in the application of the methodologies. Second, become familiar with records and resources available to the opposing expert in your case. And finally, take a comprehensive discovery deposition of the expert that locks down the opinions that will be offered at trial. Prepared with this foundation, you will be well armed to face the opposing financial expert.

Generally, there are three approaches to the cross-examination of a financial expert:

· Exclude or discredit the financial expert’s opinion

· Put into question the expert’s credibility or integrity, or

· Support your own legal theory or assumption by using the opposing expert’s opinions or calculations.

Regardless of the approach you adopt in cross-examination, your success is dependant on understanding the basic approaches and methodologies employed by financial experts. Because the specific methodology will vary from case to case, this article cannot address the plethora of details and variations that you will encounter in your career. What is presented here are some basics of forensic financial analysis to help you develop a plan and approach to cross-examining these experts.

In Cross-Examining a Financial Expert, white collar crime expert witness Mr. Henry J. Kahrs, CPA/ABV/CFF, CMA, CFE, CM of RGL Forensics writes:

The trial’s going well, and you’ve arrived at a crucial point in the case: the cross-examination of the opposing financial expert. For many attorneys, this can be a watershed moment: how well you are able to cross-examine this expert, and convey the appropriate message to the jury or judge, can significantly impact the damages sought.

With their specialized training, financial experts can often have the advantage when facing a questioner inexperienced with complex financial terms or concepts. Attorneys may inadvertently interchange common language with “terms of art,” or use terms in ways that demonstrate a lack of familiarity with the theories of the discipline. Resulting answers from the expert may vary dramatically from the expected or, in the alternative, provide the expert with an opportunity to show his command of the topic. This can lead to confusion in the court, or give the opposing expert additional credibility.

Space planning expert witnesses may write reports on residential designs, architectural interiors and related topices. At Whole Building Design Guide.org, Frances Mazarella, ASID, LEED AP, GSA defines interior design:

Interior design concerns itself with more than just the visual or ambient enhancement of an interior space; it seeks to optimize and harmonize the uses to which the built environment will be put. Thus, in the words of the U.S. Bureau of Labor Statistics, it is "practical, aesthetic, and conducive to intended purposes, such as raising productivity, selling merchandise, or improving life style." Interior design is a practice that responds to changes in the economy, organization, technology, demographics, and business goals of an organization.

Read more wbdg.org.

In Ten Mistakes Attorneys Make Regarding Their Expert Witnesses, medical expert witness Barry Gustin, MD, MPH, FAAEP, writes:

Mistake 2: Delay
It is one of the most common mistakes attorneys make: Waiting too long to locate, or once located, engage an expert. Lawyers have a mistaken belief that they will be able to find an expert quickly. They fail to consider that finding the best expert can take time particularly in a complex case and when multiple experts are needed. Once found, experts must be engaged quickly to insure that they aren't booked by opposing counsel. Sometimes, lawyers inherit the delay when they take over a case from someone else. However, most of the time, it is easy to avoid the 11th hour time crunch simply by starting early.

How early? Start your search as soon as you have received your initial screening review and you have decided to take the case. After this initial review you should be in a position to know what specialties are involved and what kinds of expert you need. Start your search early and you will find the right expert, and you will increase your chances that the ideal experts will be available to you.

In Ten Mistakes Attorneys Make Regarding Their Expert Witnesses, trauma medicine expert witness Barry Gustin, MD, MPH, FAAEP, writes:

Optimal expert witness management often makes the difference between successfully managing your case or undermining it. Over the years I have identified ten common mistakes attorneys make when hiring and managing experts. Any one of these mistakes can have significant consequences ranging from spending too much for your experts to losing your case. Here's the list of ten:

Mistake 1: Preliminary Case Screening

Given the challenges associated with medical-legal cases, from the very beginning it is always prudent to hire an experienced medical-legal physician consultant to screen your case for merit whether you are for the plaintiff or defense. Hire a consulting expert immediately to help you understand the nature of your case, its issues, and its strengths and weaknesses. With a consulting physician, you retain the attorney/client privilege; their work is non-discoverable, and you are able to discuss the case more thoroughly, including case strategy. Your consultant will identify the medical issues, address standard of care, causation and damages, will identify the names of culpable people and entities, and will make a list of the necessary expert specialties to retain. This is an invaluable initial step in the pre-litigation process.

In The Social Worker as an Expert Witness in Suspected Child Abuse Cases: A Primer for Beginners, LeRoy Schultz offers guidelines to the social services expert witness:

Before the cross exam, in your pretrial conference with your attorney, you will have discussed the weakest points in your testimony. Ask for directions from your attorney on how to handle these. Be prepared for intense scrutiny of your information, argue well, but not emotionally. The intent of the opposing attorney is to discredit you. Expect denigration and sarcasm but stay calm and professional. You can be discredited in front of the jury by:

1. Lack of licensing or evidence of falsification of credentials.
2. Showing your bias or an unusual interest in court outcome.
3. Presenting evidence of bad character, i.e., misconduct, drinking, owning a pornography collection.
4. Proof of prior inconsistency (in previous trials).
5. Contradictions in your accounts or publications.
6. Lack of knowledge of case or subject matter.

Beware the trap of answering legal questions which only a jury can determine. Offer your opinion but never be drawn out of your expertise, or lured out of your expertise into legal areas, although the opposing attorney may use this tactic. Do not become emotional and defensive on the witness stand — if you have made a mistake in first exam, quickly admit so, and move on.

For more, see http://www.ipt-forensics.com/.

After being convicted of premeditated first degree murder, Jeremy Hull took his case to the Minnesota Supreme Court. The reason the defense is appealing the case has to do primarily with their belief that the Mille Lacs County District Court should have granted a Frye hearing in regards to fingerprinting and handwriting evidence.

Assistant Minnesota Attorney General Kimberly Parker argued that a Frye hearing is for novel or emerging techniques and that the report Carlson referred to is not novel or emerging and that it’s the burden of the defense to prove there is novel or emerging techniques. “There’s nothing new here,” she said. But a judge countered that the report is saying the technique is in question and not necessarily valid. The assistant attorney general also pointed out that the defense had an opportunity at trial to attack the handwriting issue, but they did not provide handwriting expert witness testimony to say it wasn’t his handwriting.

For more, see MilleLacsCountyTimes.com.

After being convicted of premeditated first degree murder, Jeremy Hull took his case to the Minnesota Supreme Court. It’s an automatic appeal and Hull did not waive his right to appeal. Hull, 26, was convicted in 2008 of killing Lewis Wilczek of Little Falls in April 2007, then dismembering, burning and burying Wilczek’s body outside of Foreston. After killing Wilczek, he stole the 21-year-old’s identity. The reason the defense is appealing the case has to do primarily with their belief that the Mille Lacs County District Court should have granted a Frye hearing in regards to expert witness testimony on fingerprinting and handwriting evidence.

A Frye hearing is used to determine whether scientific evidence (produced by an expert witness) is admissible in court. In the 1923 federal Court of Appeals case Frye v. United States, the court held that expert testimony is admissible when the technique or theory it is based on has gained “general acceptance” in the relevant scientific community. In a Frye hearing, the trial court determines whether or not given testimony is, in fact, generally accepted (a Frye hearing is typically called after prosecutors or defense lawyers move to exclude the testimony of an expert witness).

For more, see MilleLacsCountyTimes.com.

The Ohio Supreme Court recently approved new rules governing pretrial procedures that will help ensure those convicted of crimes are truly guilty, according to Thomas Moyer, chief justice of the Ohio Supreme Court. The amendment to Rule 16 of the Ohio Rules of Criminal Procedure will require greater sharing of evidence between prosecutors and defense attorneys before trial.

One of the major rule changes relates to witness statements, which prosecutors are currently allowed to withhold until trial. Under the new law, witness statements would have to be shared with defense counsel ahead of time, along with other information from police reports. Defense attorneys have complained for the past 35 years that county prosecutors in Ohio have had an unfair advantage because they could withhold certain evidence.

Defense attorneys would be required to hand over witness statements they have obtained. Their criminology expert witnesses would also be required to provide written reports before trial or else they would not be allowed to testify.

For more, see blogcleveland.com.