In PRESERVE THE PHYSICAL EVIDENCE!, electrical equipment failure expert witness Roger L. Boyell, writes:
As soon as you believe a legal action might be initiated, take pains to preserve whatever physical evidence may be relevant. Send in an investigator, take many photographs, expedite the discovery process.
Any delay allows potential evidence to be altered or disguised, as in the following real-world examples.
Insurance coverage expert witnesses may write reports and testify on insurance customs, insurance practices, liability policies, and more. Here, Insurance.com writes on liabilities issues when hosting a a party:
Whether you’re driving to the big game, watching it in a bar or hosting a party, follow these tips to keep from dropping the ball on your insurance coverage. A big… issue can be liability if guests hurt themselves on your property or, worse, drink and drive. State laws vary, but even “states that don’t impose liability in general can impose it if the host serves alcohol to a minor,” says Kenneth Berman, an attorney with Berman, Sobin & Gross, LLP in Gaithersburg, Md. “Everyone should go into this knowing that they can be held responsible if a guest gets hurt or hurts someone else,” he says.
According to Lisa Lobo, vice president and consumer insurance expert at The Hartford, “Liability insurance is part of every homeowners policy and would cover up to your limit, usually about $100,000 if someone slips and falls on an icy sidewalk or drowns in your hot tub. But liability insurance may not be enough. We recommend a personal umbrella policy to cover all of your assets and net worth in case of a lawsuit.” Umbrella insurance policies offer additional liability coverage of $1 million or more and usually cost $200 or $300 annually.
Process service expert witnesses may opine regarding the process server’s work product. The National Association of Professional Process Servers has established the Standards, Best Practices and The Policy Manual for professional process servers:
PROOFS AND AFFIDAVITS OF SERVICE
Preamble These Best Practices are intended to recognize and establish guidelines for the proper preparation and execution of proofs or affidavits of service.
Engineered composites expert witnesses may opine on aerospace components, household products, sports equipment, and more. This week the Little League issued a moratorium on composite bats, which on many fields have replaced aluminum (and wood) as the preferred equipment for young players. “A ball could go farther and harder and some of these kids are small so it’s a safety concern that we’re looking at,” said Greg Jones, a Palma Ceia Little League board member.
The bats are prized for their performance factor. Fans say the ball comes off the bat faster and goes farther, giving hitters more power to hit home runs and boost team scores. “It’s carbon fiber, but there’s also a resin in it that expands and it allows the barrel of the bat to flex, which gives it more pop,” said Paul Borgeson, who has been selling the popular bats at Play it Again Sports.
Read more: tbo.com.
Truck maintenance expert witnesses may write reports and testify regarding federal motor carrier safety regulations, qualifications of truck drivers, federal motor vehicle safety standards, and truck maintenance, among other topics. In Maintenance Musts, Steve Sturgess, Executive Editor truckinginfo.com, writes:
Vehicle maintenance is one of the top areas where fleets are at risk under the Federal Motor Carrier Safety Administration’s new CSA 2010 program.
Carrier safety risk management firm Rair released a report comparing the safety methodology under the new Comprehensive Safety Analysis program to the older SafeStat records of more than 64,000 fleets. It showed fleets are most at risk from deficiencies in fatigued driving (hours of service violations), but next is vehicle maintenance.
In Are You Waiting Too Long To Hire An Expert?, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:
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.
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.
Pesticide products expert witnesses may write reports and testify on pesticide contamination, insecticides, and pesticide products. In The Globally Harmonized System of Classification and Labeling of Chemicals the EPA Office of Pesticide Programs describes GHS:
The GHS establishes classification criteria for physical, health and environmental hazards, along with associated hazard communication elements, notably pictograms, signal words, and hazard statements for use on labels. It is based on harmonizing major existing systems for classifying and labeling of chemicals in transport and in the workplace, in pesticides, and in consumer products. A key guiding principle of the GHS harmonization effort was that harmonization should be accomplished without lowering the level of protection afforded by existing systems. It was also acknowledged that changes in all systems would be required to achieve a single, globally harmonized system.
Liability policies expert witnesses may testify regarding insurance loss claims, insurance policy coverage, liability policies, and related topics. In The Insurer’s Duty to Defend: A Quick Analysis, attorney Thomas H. Veitch, partner with the law firm of Langley & Banack, Inc. in San Antonio, writes:
The issue whether a duty to defend exists is a question of law.
The insured has the initial burden to establish that its claim falls within the scope of coverage provided by the insurance policy.
In Preparing and Presenting Expert Testimony, traffic engineer and accident reconstruction expert witness Lawrence Levine writes:
Many times the lawyer for the defense will try to time his response to a pending case until after the plaintiff’s expert has submitted his opinions. This way he is sure to answer with specificity the claims that are being presented. As often, plaintiff attorneys will request that an expert not prepare a report until after a verbal opinion is rendered over the phone or in person. This is because all documents in an engineer’s file, done in preparation for a case, are discoverable at trial. This includes correspondence and e-mails. It is wise to verbally discuss with the attorney the need for a report, the due date, and the format in which to prepare it. This does not and should not create a bias on the part of the engineer.
If the lawyer asks the expert to prepare an opinion based “solely” upon photographs, depositions, or a selected grouping of documents he or she supplies, it is in the expert’s best interest to maintain his or her reputation; to demand the right to seek out additional information if necessary, including site visits, testing or whatever is felt to be necessary in order to render an opinion on the matter. To do less would be a disservice to the client, the plaintiff, the agency and the court. It opens the expert to the potentially embarrassing question later “Why didn’t you do this or that?” or “Isn’t it accepted practice in the field of accident reconstruction and investigation to do this or that?” Just as the lawyer must prepare his case, the expert he is depending upon must be prepared and thoroughly know his subject and the case.
In Optimizing Your Use of Banking and Financial Institution Experts, banking expert witness Michael F. Richards writes:
Reconstructive Documentation This involves the reconstruction of what happened in the case after reviewing the documents. This is a tedious and time consuming process. In many lending cases, five to ten thousand documents are provided for review, spanning a five to ten year period, including many new loans, paid off loans, renewals, extensions, and modifications. This review, along with the depositions of the individuals involved, usually exposes the crux of the problem and why there is a law suit. Once an expert has gone through and reviewed these documents, they should have a feel for the culture of the bank; and personality, knowledge, and experience of the officers involved. This is a very critical area, especially in lending cases. The purpose of the loan, the documentation of the loan, and the actual performance of the loan are usually perceived differently by the parties involved.
