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This week a jury found that a forklift manufacturer was not liable for a 1999 tip-over accident in which the operator was thrown from a forklift resulting in catastrophic injuries. The injured party lived seven years as a quadriplegic. Massachusetts U.S. District Court Judge Reginald C. Lindsay presided over the five-week trial in which the jury returned its unanimous verdict. The forklift manufacturer’s engineering expert witness successfully argued that the accident was caused by operator error, not a breach of warranty or any defect present in the forklift.

The defendant faced great exposure because the parties stipulated to more than $2 million in economic damages. The plaintiff also sought damages for pain and suffering, punitive damages under the Massachusetts Wrongful Death Statute and multiple damages under G.L.c. 93A.

For more see Massachusetts Lawyers Weekly.

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In Strategic Security Management: A Risk Assessment Guide for Decision Makers, author and security expert witness Karim H. Vellani provides a “definitive text on security best practices, introduces the concept of analysis for security decision making, and discusses advanced threat, vulnerability, and risk assessment techniques that you can apply to your organization’s security program.” The first two chapters include:

Chapter 1, Data Driven Security, sets the tone for the rest of the book with its discussion of a relatively new security concept, using data to drive the security program. Security professionals, only recently, have started using quantitative data to determine appropriate security levels. This chapter provides some of that food for thought mentioned above as well as a “howto” for developing security metrics.

Chapter 2, Asset Identification and Security Inventory, discusses the first two steps of the risk assessment process, the identification and categorization of organizational assets and the itemization of existing security measures. Critical assets, those that are integral to the organization’s mission, are the focal point of the first half of this chapter, while three types of security measures are discussed in the latter half. Also included in this chapter is a list of definitions so we’re all speaking the same language as we progress through the book.

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In Post Loss Underwriting is an Oxymoron, attorney and insurance expert witness Barry Zalma, Esq., CFE, discusses “post loss underwriting.” His firm’s practice emphasizes the representation of insurers and those in the business of insurance.

In California there is much publicity for what the plaintiffs’ bar calls “post loss underwriting” as a pejorative way of speaking of the equitable remedy of rescission. Post loss underwriting does not exist. Underwriting is a decision making process. It is made before insurance is issued. Rescission is an equitable remedy when an insurer is deceived regarding a material fact. If the rescission is improper the insured is not without a remedy.

As the Court of Appeal stated in Imperial Casualty & Indemnity Company v. Levon Sogomonian, 198 Cal. App. 3d 169 (1988), “Our conclusion here should not result in an assumption by insurers that policy liability can, with impunity, be avoided or delayed by assertion of a claim for rescission. That is a tactic which is fraught with peril. Where no valid ground for rescission exists, the threat or attempt to seek such relief may itself constitute (1) a breach of the covenant of good faith and fair dealing which is implied in the policy (citations omitted) and/or (2) the commission of one or more of the unfair claims settlement practices proscribed by Insurance Code section 790.03, subdivision (h).”

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Properly preparing the medical expert witness is vital to a successful deposition. The expert witness will then be able to perform with little assistance from the attorney in the case. This preparation is particularly important when the deposition is recorded on video. Since a common use for video depositions by opponents is impeachment at trial, counsel should treat the video deposition as if it were taking place in the courtroom.

When the expert’s deposition comes up at trial and objections are made as to the competency of the deponent, counsel does not have the right to instruct the expert witness not to answer questions but may advise the expert not to when appropriate.

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In Mediation as a Discovery Tool, insurance expert witness Guy O. Kornblum describes the benefits of going to mediation:

So the case does not settle at mediation! Disappointment perhaps, but there are other benefits to going to a mediation. One of them is the exchange of information that takes place between or among the parties. This is particularly true of a mediation that takes place early in the case, or at a certain point in time after the parties have exchanged limited information. Even though a mediation takes place, it is sometimes the case that the parties simply do not know enough about the other side’s position or the facts of the case; therefore, productive negotiations just don’t happen. Or, it may be that the perception of the parties is just quite different and more information needs to be exchanged before settlement can be reached.

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In Strategic Security Management: A Risk Assessment Guide for Decision Makers, security expert witness Karim H. Vellani writes in his introduction:

While researching this book, I sought out the wisdom of others and came across a quote by William O. Douglas which I think captures the essence of Strategic Security Management: “Security can only be achieved through constant change, through discarding old ideas that have outlived their usefulness and adapting others to current facts.” I think that pretty well sums up the intent of this book.

Vellani is President of Threat Analysis Group, LLC.

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In Anatomy of a Witness List, Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward.”

While most cases are resolved short of a trial, it is important to view each as a potential trial situation. This starts early in the life of a case. Even at an initial client interview, witnesses are named, areas of factual and legal inquiry are outlined, and the necessity of retaining expert (witnesses) may be considered. Pretrial discovery broadens the scope of witness identification and eventually allows refinement of a trial witness list. This is a time-consuming and hugely expensive process. Failure to focus early on the truly important witnesses to call, and what each may contribute to winning, can be fatal to ultimate success.

From Advocate Magazine, June 2008.

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Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers includes a chapter by Cook County criminal lawyer Sam Adam entitled Eight Lessons From a Lifetime at 26th Street. Lesson #1:

Look at the trial itself as an entity rather than as a collection of witnesses. Remember that the ultimate purpose of cross-examination is to get those gold nuggets for closing argument. Know every fact about the case – and perhaps especially your opponent’s case – before you plan your cross-examination. This should usually include viewing the scene. A well-prepared lawyer who has a superior knowledge of the facts has an enormous advantage going in.

More to come from Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers

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In Anatomy of a Witness List Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward.”

The order in which witnesses are called at trial can make or break a case. The process of preparing a witness list, including careful consideration of who to call, when and why, may forecast a verdict even before counsel step into the courtroom for trial.

It is vital to determine which witnesses will provide maximum impact at different points int a trial. Each (expert) witness must be evaluated as a potential “opener,” “closer,” or “sleeper.” Some witnesses can persuasively establish or refute liability on damages issues. Others are better for introduction of documentary or other exhibits. Sometimes witnesses must be called adversely for essential information or taking the edge off problem areas. Above all, calling any witnesses requires strategic thinking, not simply conjuring up an arbitrary list of persons with potential testimony.

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In Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers leading trial lawyers illustrate essential rules including:

*Never ask a question to which you do not know the answer – unless it doesn’t matter, or you have nowhere else to go.

* Always listen to a witness’s answer before asking your next question.

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