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Many expert witnesses do not realize that they can file suit against the law firm that retained the expert if the expert is sued for negligence.

In the 2005 California case of Forensis Group, Inc. v. Frantz, Townsend & Foldenauer, an expert witness was sued for professional negligence for his work in a wrongful death case involving a forklift. The law firm Frantz, Townsend & Foldenauer sued the forklift manufacturer on behalf of the family and retained a mechanical engineering expert witness. At his deposition, the expert did not identify any applicable safety standards, but when the manufacturer later moved for summary judgment, the expert stated in a declaration that the vehicle failed several safety standards. The court granted summary judgment, noting that the expert had contradicted himself. The family filed a malpractice suit against the law firm, and the expert. The expert cross-claimed against the law firm for equitable indemnity, alleging that because he was retained by the law firm, the lawyers should share the loss attributable to the expert’s unsuccessful opposition to the motion for summary judgment. The expert charged that the lawyers had not provided him with adequate information, had failed to rehabilitate him at his deposition, and had failed to brief the court on the law regarding the admissibility of evidence regarding industry standards.
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The SEC’s civil fraud case against former Qwest chief executive Joe Nacchio will most likely not go to trial until 2009. The SEC asserts that Nacchio and other former Qwest officials falsely inflated revenue by $3 billion from 1999 to 2002. U.S. Magistrate Judge Craig Shaffer gave the parties until Oct. 15, 2008, to submit information on proposed expert witnesses. The judge said he does not expect to allow depositions of the securities expert witnesses. As reported in the Denver Post, the SEC plans to file a motion for summary judgment against Nacchio in August, asking that Nacchio be found guilty of all or part of the charges.

Nacchio, already convicted of illegal insider trading for stock sales from April to May 2001, is scheduled to be sentenced July 27 on his criminal conviction on 19 counts of illegal insider trading.

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Thinking about becoming an expert witness? A logical first step is to figure out your area of expertise. Slate.com writes:

According to the Federal Rules of Evidence, an expert witness can be anyone with special “knowledge, skill, experience, training, or education.” An expert can testify under the following conditions: The testimony must be based on sufficient facts or data; the testimony must be the product of reliable principles and methods; and the witness must have applied the principles and methods reliably to the facts of the case. In general, expert witnesses are called in when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”

Always keep in mind that an expert witness must pass the Daubert test. Trial judges evaluate expert witnesses to determine whether their testimony is relevant and reliable. You must demonstrate that the evidence you present as an expert fits the facts of the case and your conclusions were derived from scientific methods.

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The National Ground Water Association is hosting the 5th Ground Water and Environmental Law Conference in Dublin, OH, on July 24-25, 2007. Lawyers and environmental expert witness speakers will cover groundwater litigation cases and forensic environmental investigations. Topics for day two will include new water law regulations, groundwater models, risk assessment, ethics for attorneys and expert witnesses, and a mock trial. The NGWA website states:

The first four of these conferences have been outstanding as a direct result of lawyers and expert witnesses who became part of the process providing excellent quality presentations including trial reenactments.

The 2007 NGWA Ground Water Expo and Annual Meeting will take place in Orlando, Florida, December 4-7. The educational program ranges from drilling operations to professional development and numerous networking opportunities.

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As a practicing lawyer, clients may scrutinize every expense and hour you bill in their case. The key to avoiding billing surprises with your clients is to communicate your billing practices. While money has to be considered in hiring an expert witness, it is not the best place to cut costs. Advise your client not to expect experts to discount their fees. A good expert witness is not a bargain expert witness.

Expert witnesses have the education, training, and experience that makes them knowledgeable in their field. While it is understandable that clients want to keep litigation costs to a minimum, in order to win their case, it is advisable not to cut expert witness costs.

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Gang expert witness Ray Villalvazo testified Friday on the rivalry between two Asian gangs in Fresno which led to death of 20-year-old Nath Ouch and her unborn child. As reported in The FresnoBee:

When Asian Boyz gang members unleashed a hail of more than 30 bullets into a southeast Fresno apartment complex parking lot in January 2006, it was the “ultimate response” to earlier drive-by shootings by members of the rival Tiny Rascal Gang. “It sent a strong message to say to the rival gang, ‘Don’t mess with us,’ ” expert witness Villalvazo said in Fresno County Superior Court. That message also put a bullet in the back of Nath Ouch, who was eight months pregnant. Both Ouch and her unborn child died. Prosecutor Jon Skiles says the Asian Boyz gang members fired bullets at the apartment complex because they knew it was a hangout for members of the Tiny Rascal Gang.

Villalvazo estimated there are 50 members of the Asian Boyz gang in Fresno. Asked about the gang’s “primary activities,” he listed a series of criminal practices: “Possession of firearms, firing at residences, attempted murder, homicide, vandalism, intimidating witnesses, just to name a few,” he said. When people join the gang — at ages as young as 12 or 13 — they’re called “new booty” and have to earn their stripes, Villalvazo said. To accomplish that, he said, they “do dirt.” Translation: They commit crimes. More crimes earn gang members more respect, Villalvazo said

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Ivory J. Webb Jr., a sheriff’s deputy in San Bernardino County, says he was justified in shooting an unarmed man at the end of a car chase. Webb is charged with attempted voluntary manslaughter and assault with a firearm. Law enforcement and police procedures expert witness Kent Ferrin told the jury that he was convinced Webb shot Elio Carrion because Webb believed Carrion had lunged at him. The defense expert witness, an 18-year police veteran, was cross-examined for more than four hours in the San Bernadino Superior Court case. The DailyBulletin.com reported:

“He felt that his life was in danger,” Ferrin testified. “He discharged his weapon at Mr. Carrion because he felt his life was in danger.” However, a videotape of the Jan. 29, 2006, shooting appears to show Webb shoot Carrion as Carrion followed the deputy’s orders to “get up” off the ground. Closing arguments are expected by June 26.

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A human resources expert witness’s presentation helped convince a Berkshire County, MA, jury to award $2 million to a former Wal-Mart pharmacist. Plaintiff Cynthia Haddad claimed she was paid less than male pharmacists and was fired in retaliation for complaining.

Massachusetts Lawyer Weekly reports that after more than 10 years at the Pittsfield Wal-Mart, Haddad complained that the retail giant laid her off after she asked to be paid the same as her male counterparts. The company paid her a bonus and then fired her two weeks later. Wal-Mart said the pharmacist was laid off because she left the pharmacy unattended during a period in which an authorized prescription was written by a technician. The jury also heard from North Andover attorney Julie A. Moore, an employment expert witness.

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When A. Bernard Ackerman, MD, a New York dermatopathology expert witness, is hired, he refuses to know which side the lawyer represents in the case. Ackerman’s goal is to keep his presentation of the facts and opinion objective. PointofLaw.com writes:

“I want to let the facts speak for themselves,” said Dr. Ackerman, who has testified equally for the defense and the plaintiff in medical liability cases and in other cases where medical expertise is needed, such as criminal cases. Sticking to the facts, he says, prevents a cross-examining lawyer from tripping him up about his opinion being consistent…. States in recent years have ratcheted up efforts to rein in false medical expert witnesses. They have adopted legislation requiring experts to be qualified or have stepped up state medical board oversight over who testifies and what they say.

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Brain Meehan, Director of DNA Security Inc., is often called upon as an expert witness . Unfortunately, the DNA expert witness lost some credibility when his testimony was criticized in Durham District Attorney Mike Nifong’s disbarment hearing. As reported in The News & Observer:

Lawyers on both sides and the panel chairman criticized his testimony during the hearing. From the moment Meehan stepped down through the end of the hearing, Williamson derided the scientist’s testimony, referring to him as “Mr. Obfuscation” and calling the scientist an “erratic witness at best.” Even Nifong’s attorney stated that “I wouldn’t make much out of what Dr. Meehan said.” Meehan can expect those comments to come up when he’s cross-examined in any future cases.