Month: July 2018

ElectronicsExpert WitnessLivestreaming

Livestreaming App is Window into Your Child’s Bedroom: An Experts.com PSA

Law enforcement officers are warning parents about the LiveMe livestreaming application as it allows predators direct access to children, at home, in their bedrooms.

Earlier this week, I was searching for a new story for the blog. It was a long afternoon of reading news stories and not finding any that grabbed my attention.

Then after a while I found this story , from News4Jax, posted by my friend Sergeant Marc Marty, of the Montebello Police Department. Marc is a leader in online safety and the fight against child trafficking. He teaches courses to law enforcement and government officials via LawEnforcement.Social and is active with the Erase Child Trafficking organization.

It hit me, we generally write stories involving expert witnesses, but we only very occasionally write a straight informational, “public service announcement” post. This topic felt like the right topic at the right time.

I’ve been fairly involved with live video since 2015. In fact, live video is how I met Marc. We’ve attended several live video and social media conferences and I watched him speak about online safety and child trafficking at the last mutually attended conference. I’m happy to see he’s still fighting the good fight!

The livestreaming story shared by Marc, is very disconcerting. The app in question, LiveMe, has some 20 million active users. Before this article, I can’t recall hearing about LiveMe. My guess is the app targets minors, so it is not somewhere I wish to spend my personal or professional time. Unfortunately, it is somewhere sexual predators will be quite active.

I imagine law enforcement will also be active on this platform. Unfortunately, with limited resources, dozens of social media platforms, and jurisdictional limitations, police will only be able to monitor a small percentage of the streams and may be limited in their ability to take action. That leaves monitoring to parents, non-profit organizations, and other concerned citizens.

As the News4Jax article describes, several parents were not aware of what their children were doing on this app, in their own bedroom. Others didn’t even know the app existed (admittedly, keeping up with every new platform is difficult).

All of this got me wondering, what viewing behavior is indicative of a predator? Other than monitoring their children and their behaviors, what do parents need to know about online predators? How should they guide their children? What behavior indicates “grooming”? Which children are most at risk?

I reached out to Marc for some greater illumination on the subject.

Sergeant Marc Marty

As I’ve done in the past, I have asked several questions and Marc has provided some spectacular answers on the subject.

Nick: As an officer specializing in social media, what are some steps parents and others can take to prevent predatory use of apps like LiveMe?

Sgt. Marty: Parents first and foremost must develop an open line of communications with their children. Communication is key!! They need to develop a partnership with their children. If parents are “allowing” their child to have a cellphone, they need to explain to their child that it will be monitored and that there may be monitoring software on the phone. Let’s face it, most children cannot purchase a phone, so in essence the phone belongs to the parents, not the child. Be open and honest with your children. Develop a contract with your child that explains and stipulates the rules and guidelines the child must follow in order to have a cellphone. This is important because when the child breaks that contract and their phone gets taken away or they are disciplined, they have a clear understanding why they are being disciplined. This helps develop responsibility.

Nick: Assuming parents are monitoring the livestreaming use of their children, are there any telltale signs that viewers may be predators?

Sgt. Marty: It’s really difficult to determine who is actually watching/following your child online unless you know them. Here’s a question I pose to parents. “Do you let your child have random friends that you know nothing about? Do you let your child talk to just anyone at the mall as they are walking through it?” If the answer is “NO,” then why would you allow a random stranger online follow your child? Parents should know who is following their child online.

Nick: Are there particular signs that a viewer may be “grooming” a potential victim?

Sgt. Marty: If a viewer asks a child to take off their clothes, or to send a random nude photo of them, those are pretty good signs that that person is up to no good. However, predators will often seek weaknesses in children and exploit them. They are looking for the child who wants to run away, or who is upset with their parents, or who doesn’t have parents. They will look for any type of “in” they can find. They will often simply befriend them and develop that digital friendship online.

Nick: Can you share with our readers some basic online safety recommendations?

Sgt. Marty: Children should follow their parents rules at all times. Understand that anything you post online will be there forever. Never send personal pictures to anyone online. Never give out any personal information, such as address, phone number, or other identifying information. Don’t use your name as a screen name online, make up a name. Cyberbullying is huge, don’t respond to any threatening emails, messages posts or texts online. Screen shot the messages, block the individual and immediately notify Facebook, Instagram, or whatever platform you are on, and it will usually be removed right away. You may also need to notify your local police as well. Children should never meet anyone in person unless parents are present and/or notified. Always tell parents, teachers, or other trusted adults of any messages that are unwanted or threatening.

Nick: Is there anything you feel I should have asked that I didn’t ask? Potentially items you feel the public needs to know?

Sgt. Marty: Parents need to understand that social media is the gateway to child trafficking. They need to be able to communicate and educate their children!! They should follow Erase Child Trafficking and any other organization out there that is fighting against the exploitation of children.

Conclusion:

So there you have it, our first or maybe second, true public service post. The topic is hugely important. These are areas where Marc and I have been active for several years and we have seen some of the efforts by strangers to bully and prey on children.

You and your children should enjoy technology. Just do so wisely. Be smart and be safe!

 

Expert WitnessLawyersMarketing

Creating Compelling Legal Content – Lawyers Gone Ethical Podcast

A huge thank you to Megan Zavieh, of Zavieh Law, for having me on the Lawyers Gone Ethical podcast this week.

This week, I was honored to be a guest on the Lawyers Gone Ethical podcast from California State Bar defense attorney Megan Zavieh. It was a fun, educational experience and Megan is a fantastic host!

What I was surprised to learn is lawyers are very concerned about the ethical ramifications of creating content. The fear is not dissimilar to the concerns of expert witnesses regarding content marketing.

Granted, experts are more concerned that content created to market their services may later be used against them for impeachment purposes (if this is one of your fears, check out this post from a few years ago). Lawyers, on the other hand, are more concerned with upsetting state bar regulators.

The concerns of lawyers and experts are understandable, but they are based in fear. Lawyers can add appropriate disclaimers to their content marketing materials. Experts should not be creating any video or written publications that they cannot defend. In fact, experts can add disclaimers too. For example, “the facts of each case are different. The analysis used in this article/video/blog post may not be applicable in every case.”

The bottom line: Both sets of professionals need to get over the fear and start creating interesting and compelling content. Do so after taking proper consideration of your practice and any ethical standards which may apply. But, get started!

If you are not utilizing content marketing to expand your practice, you are missing out on the ability to distinguish yourself from your competitors.

There are reasons we encourage Experts.com members to write articles. It differentiates them from their competitors, reinforces their expertise, showcases their analytical and writing abilities, and drastically increases their online visibility.

Don’t let the fear win!

LISTEN TO THE EPISODE

compelling-content

Megan Zavieh’s Contact Information:

Website – www.zaviehlaw.com

Twitter – https://twitter.com/ZaviehLaw

iTunes – https://itunes.apple.com/us/podcast/lawyers-gone-ethical/id1352001379

Stitcher – https://www.stitcher.com/podcast/megan-zavieh/lawyers-gone-ethical

Oh, and if you love how the podcast was produced and edited, you should definitely check out Abboud Media.

 

Criminal JusticeCriminal LawExpert Witness

The Staircase on Netflix: Lawyer and Expert Witness Costs of a Homicide Trial

Netflix’s hottest new true crime show gives us an excellent view of the financial costs of criminal justice.

A little over half-way through the second episode, the defendant Michael Peterson, is having a conversation with his brother, Bill Peterson. They had just been pitched a $35-40,000 idea for conducting a survey instead of a mock trial. Thereafter, the brothers have an open and frank discussion about the costs of defending Michael Peterson for killing his wife.

They have a conversation in which they realize they’ll be over-budget by about $300,000. Initially, they thought the defense and trial might cost somewhere between $500-550,000. No small sum. Now, after speaking with the lead attorney and some trial consultants, they realize they’re looking at a $750-800,000 of legal spend. With that money spent, there’s no guarantee he’s staying out of prison.

  • SPOILER ALERT: He doesn’t stay out of prison, but he does get out of prison after many years.

Michael Peterson asks his brother, “Then again, what do people do, who don’t have any money?” It is an excellent question! Michael Peterson follows that up with “the rich get off because they can afford to defend themselves. The poor go to jail because they can’t afford to defend themselves… not in every case.” This appears to be a reasonable assumption. Michael goes on to state, “American justice is, very, very expensive.”

Regardless of what you think about Michael Peterson, or The Staircase, he has brought up some really prescient issues. In reality, cost is a major access to justice issue. I discussed this with my access to justice panel members, at the ABA GPSolo / GLSA conference in Louisiana, earlier this year. Cost often prevents people from seeking legal assistance. What if you seek legal assistance, but you don’t have $50,000, $100,000, $800,000 or more, to throw at a defense? That may put your freedom in a perilous position.

Considering the financial strain a criminal trial might cause, I thought now was a good time to provide an assessment of the costs. Remember, the costs discussed in episode two of The Staircase, were based on costs from the early 2000’s. It would be fair to assume those costs have increased. If you are innocent of a crime, you’d still have to spend the money to defend yourself.

I’m going use a hypothetical homicide case to assess attorney, trial consultant, and expert witness costs, for the purposes of this blog. For the fact pattern, assume similar facts to those in The Staircase (i.e. a victim is found at the base of a staircase. The police think the defendant killed the victim. The defendant argues the victim fell down the stairs). Our hypothetical criminal trial is going to include an appeal.

Legal Costs for a Homicide Trial:

To get some insights on the legal costs for defending a homicide prosecution, I’ve reached out to our friend Walter M. Reaves, Esq. Walter is a friend and colleague I’ve met through the LegalMinds Mastermind Group. He is a criminal defense attorney located in Waco, Texas. To find more about his practice, visit waco-criminal-attorney.com. The following text is the full analysis provided by Walter Reaves:

There are several lessons you can learn from the “Staircase”, one of which concerns the cost of a vigorous defense. In one of the episodes, while they are totaling how much they have spent so far, Michael Peterson wonders how someone who doesn’t have the financial resources he has can defend themselves. It’s a fair question, and one that is asked regularly.

He’s not alone in believing the criminal justice system favors the wealthy. You can’t argue with the fact that they can afford the best lawyers, and the best experts.  Some people also believe they can buy their way out of trouble.  While there are rare instances where that has happened, it’s the exception. The benefit of money is in the “extras” that most defendants are not able to take advantage of.

You probably wonder how expensive a murder case is to try. Cases like the Peterson one are the exception. Most cases are not nearly as complex or complicated. Where the facts are fairly well established, there may not be a lot you can do. Even in cases that are fairly complex, there may not be a lot of experts involved.

For those dying to know, here’s an estimate on the potential costs you could incur in defending a murder case:

Defense attorneys – this is probably the biggest range you will find, because criminal defense lawyers generally don’t work on an hourly basis; instead, they charge flat fees. That is based on a number of factors, including the lawyer’s experience, as well as the amount of time the lawyer anticipates the case will take. It also depends on the location.  For the defense of a major murder case, you would expect a good lawyer to charge at least $100,000, and maybe a lot more. In a case like the Peterson case, the lawyer is probably going to be working only on that case, and will utilize most of his office in doing so. That means they aren’t going to have any other money coming in, so the fee they charge needs to account for that.

Investigators – most investigators charge by the hour. In Texas, it can range from $50.00 an hour, to $100.00 plus. The amount of investigation that is necessary can vary widely, but for a complicated case like this one, an estimate would be 200-500 hours.

Fortunately, most other experts do not have to do the same amount of work. A pathologist is a must in a murder case. You can expect a retainer of $5,000 – $10,000 to review the case, provide an initial opinion. If they have to testify, most experts charge a fee based on the amount of time they are required to be in court, which can be $1,500- $3,500 a day, plus their expenses.

A biomechanical expert is a specialized expert, that might be involved in a murder case. Their fees would generally be in line with the pathologist, although they are more likely to be paid by the hour, with rates ranging from $150 – $500.00.

Blood spatter experts can be expensive, because they are looking at all the evidence. While a pathologist may only be looking at the autopsy, the blood spatter expert is reviewing all the autopsy, as well as all the photographs. They also may want to visit the scene, and take more detailed measurements than the police did. They also will review all of the reports and statements, to determine whether they are consistent with the physical evidence. Normal fees would be in the range of $10,000 – $15,000. They will also charge an additional fee for testifying, based on the number of days they are required to spend away from the office.

In addition to the above experts, you might also have a crime scene expert, or an expert in crime scene re-construction. Like the blood spatter experts, they will review all the evidence, and the photographs, and will probably visit the scene and take their own measurements.  Their fees would be consistent with blood spatter experts. They may also provide additional services, such as producing re-enactments of the crime scene.

If you don’t that kind of money, what are you supposed to do? Fortunately, you aren’t completely out of luck. The Supreme Court has held that a defendant must be provided with the tools necessary to mount a proper defense. What those tools are is open to debate. However, courts have generally held experts such as a pathologist should be provided. These experts can be paid for through the court, even if the defendant is paying for his own lawyer. Just because someone can afford to hire a lawyer, doesn’t mean they can afford to pay for a full defense. Of course, you aren’t going to get everything you might want, but at least you can have someone in your corner.

Legal Costs for a Homicide Appeal:

My experience with appeals is limited to academic. I interned at the California 3rd District Court of Appeals, while in law school. For this blog post, we really needed someone who could provide more detailed information about the practice of criminal appeals. As such, I reached out to friend and colleague, Ryan C. Locke, Esq.

Ryan Locke, founder of the Locke Law Firm, practices personal injury and criminal appeals in Atlanta, Georgia. He is an Adjunct Professor at Emory University School of Law in their trial techniques program. Previously, he worked in the Atlanta Public Defender’s office. To find out more about his practice visit: thelockefirm.com.

The following are some questions I posed to Ryan followed by the answers he provided regarding the costs of criminal appeal.

Nick: Can you tell our readers a little about post-conviction appeals (i.e. general information on what items may be appealed; how many appeals might a defendant have in the State of Georgia; anything else you think is relevant to summarize the appeal process)?

Ryan Locke: The strategy in an appeal case is to find errors that are serious and made a difference in the trial. Our two biggest obstacles in an appeal is the harmless error doctrine and appealing issues that are not preserved.

If we find an error but it doesn’t make a difference in the trial, then it is harmless error and we will lose. For example, if the defendant had a credible alibi defense and his lawyer never investigated it—serious and would have made a difference, and we’ll probably get a reversal of the conviction. But if the court let a witness testify to some pretty harmless hearsay—not serious and would not have made a difference, even if it was error.

Issues that are preserved—the defense objected to them at trial and the judge made a ruling—can be appealed directly. But often issues are not preserved because the trial lawyer didn’t object. In order to appeal those issues, we must ask for a hearing in front of the trial judge and bring the trial lawyer in to testify about his mistake. We do this by filing a motion for a new trial.

This hearing is our last chance to enter evidence into the record. For example, in The Staircase the government introduced evidence of Peterson’s neighbor in Germany dying under similar suspicious circumstances in order to prove that he knew how to fake his wife’s accident. If the trial attorney doesn’t object to this evidence then the issue is waived—unless we assert that the trial attorney was constitutionally ineffective for that failure by calling the lawyer as a witness and asking him or her about it.

If the trial judge denies the motion for new trial, we then appeal that denial. Most cases go to the Court of Appeals, while some go directly to the Supreme Court. In either court, the process is straightforward: each side files briefs, we go to the court and have oral argument if they grant our request, and then we wait for the opinion.

If we lose the direct appeal, then the defendant can file a civil case asking for a writ of habeas corpus. You have the right to a lawyer for the direct appeal, but not in the habeas case, and there are some additional hurdles for raising issues in a habeas, so the direct appeal is usually your best shot at getting a conviction reversed.

Nick: In your experience, what is a common cost of post-conviction appeals in Georgia?

Ryan Locke: The cost of an appeal can really vary based on the length of the trial, the complexity of the evidence, whether any experts testified, and the complexity of the issues raised on appeal. The cheapest appeal may be a trial that only lasted a few days, no scientific evidence was presented, and no experts testified. On the other end, I worked on appealing a federal trial that lasted three weeks and involved a complicated conspiracy—it took me 60 hours just to review the trial transcripts.

The cost also depends on if the work requires experts. In our Staircase example, one issue may involve hiring experts to review all the scientific and forensic evidence. If there was a way to attach the government’s scientific evidence that the defense didn’t raise at trial, then we’ve got to bring our own expert to court and have him testify, just like he would have testified at trial. This can add considerable expense to an appeal.

I would ballpark most appeals between $15,000 and $25,000, unless there’s a complicating factor. Price can also vary depending on who you hire. The best lawyers in Georgia handling high-profile cases will start at $75,000 to $100,000.

Nick: If there are multiple appeals, how much might a defendant expect to spend on multiple appeals?

Ryan Locke: The reality is that most defendants rely on the public defender for their direct appeal and will then be pro se for their habeas case. Because habeas cases have more procedural hurdles to jump through before the court will decide a case on the merits, I will usually charge one fee to review the case first to see what the strategy should be and then a second fee to execute on the strategy. For me, habeas cases end up being a bit more expensive because of this.

Nick: For an entire appeals process, can you provide us with a low to high range of costs?

Ryan Locke: From free to as much money as you have. Where money makes the biggest difference is in experts. If the prosecution relied on scientific evidence and expert testimony to secure the conviction, you need to have everything reviewed by independent experts—even if the defense had experts testify at trial. My most recent appellate win relied on having a psychologist review almost a thousand pages of medical records and evaluate my client in prison. The report we got was persuasive both to the prosecutor and the court and provided the evidence we needed to win.

You also need quality experts to give you bad news. I had a case where we hired an out-of-state medical examiner to review the autopsy. He told us that the government’s conclusions were sound and most experts would agree with them. This allowed us to focus on other aspects of the appeal and not waste time or money on a losing issue.

Conclusions:

A huge thank you to Walter Reaves and Ryan Locke for participating in this effort. We wanted to give readers a modest idea of the costs associated with mounting a significant criminal defense.

To wrap up, I’m going to take the lowest costs provided by my co-authors to give our readers a basic understanding of the expense involved in criminal defense.

Defense attorney – $100,000.

Investigator – $50/hour times 200 hours = $10,000.

Pathologist – $5,000 retainer; $1,500 1 day of trial testimony = $6,500.

Biomechanics expert – per Walter Reaves these costs would be in line with Pathologist, so = $6,500.

Blood spatter expert – $10,000. Plus a fee for testifying. I had to search some of our data to see what they charge for testifying and we’re going to ballpark one day at $2,400 for a total =  $12,400.

Crime scene expert – per Walter Reaves, these costs would be in line with the blood spatter experts so we ballpark it as = $12,400.

Criminal appeal – per Ryan Locke, the low end cost = $15,000.

Again, these numbers are based on the lowest costs provided by my co-authors. We also factored in one day of testimony for most of the experts. We come up with a low cost for a criminal trial and appeal of $162,800.

We did not use mounds of empirical data in this analysis. Many things could change the costs of a trial. One, for example, is if your lawyer decided to hire an expert through an expert witness broker, you could add another 40% onto the cost of each expert. I know, that’s a self-serving comment, but it is entirely accurate. You should be getting your experts through Experts.com.

Other items impacting the costs were our use of the same experts we saw used in The Staircase. Not every case is going to require all the experts mentioned in this hypothetical. However, you are already at $115,000 if you factor in your defense counsel and appeals counsel.

My best advice, stay out of trouble. It can be very expensive, even with available assistance described by Mr. Reaves and Mr. Locke.

 

 

 

 

 

 

Expert WitnessEngineeringAutomotive

Tesla Whistleblower Alleges Inflated Production, Safety Hazards

Former Tesla employee Martin Tripp has blown the whistle accusing the company of what may be securities fraud peppered with dangerous safety concerns.

This is an update on our last post: Tesla Trade Secrets Lawsuit: Investigators & Expert Witnesses.

It seems this story is just heating up. Once again, Cyrus Farivar from Ars Technica, is doing some excellent reporting on this story and I only hope to follow in his footsteps with my own expert witness-based input.

Last Friday, former Tesla employee Martin Tripp, submitted a whistleblower tip to the SEC. According to Mr. Farivar’s reporting, Tripp did so using a “TCR” (tip, complaint, or referral form). Mr. Tripp is now represented by a lawyer specialized in whistleblower cases. Interestingly enough, he still is not represented by counsel in the Tesla trade secrets lawsuit filed against him and his lawyer on the whistleblower claim does not represent him in that suit.

CNN Money has some details of what is alleged in the claim to the SEC. Tripp alleges that Tesla regularly inflates productions numbers on the Model 3, meaning fewer than the supposed 5,000 vehicles a week are actually being produced. He further contends car batteries are defective because they contain dangerous punctures and Tesla had decreased vehicle safety specifications, all of which increases the likelihood of battery explosions and safety hazards.

If any of the above allegations are true, we are entering into the arena where the following expert witnesses may be needed in a whistle-blower litigation by the SEC.

Securities Fraud:

If Tesla is actually inflating number of vehicles produced and claiming they are meeting their production goals, they could be dealing with some securities fraud issues in addition to opening themselves up to a potential shareholder lawsuit. Claiming they’d be building 5,000 Model 3‘s each week, but not doing so, could be seen by the SEC as an attempt to manipulate the stock price and lie to shareholders, to which the directors and officers of the company owe a fiduciary duty. If this is the case, I expect to see reports from experts in director and officer liability and corporate governance.

Automotive Safety & Engineering:

If there are issues of defective or damaged car batteries being installed in the automobiles, the SEC will need experts to investigate, inspect, and report the validity of these claims. I’m going to avoid the classic product liability issues that may stem from these allegations since those would be involved in a different lawsuit.

However, the SEC will have to employ automotive safety and automotive engineering specialists to determine the legitimacy of Mr. Tripp’s claims. Is he making claims maliciously because he’s a disgruntled former employee? Or, are the batteries and the vehicles truly dangerous?

Another expert likely to be needed to test Mr. Tripp’s accusations would be a specialist in battery engineering. The big selling point for Tesla… the cars are sleek and environmentally friendly because they are electric (battery powered). However, Tripp alleges there are dangerous holes in the batteries.

If you’re like me, you know very little about the inner-workings of your automobile. I do know that a hole in a battery is not good, but the SEC can’t have me do a once over and let them know if the “holes” Mr. Tripp saw are truly dangerous. A battery expert will have to inspect a sample of Tesla car batteries to determine any legitimacy to his claims.

That’s the latest in this ongoing drama. I expect, however, we will be seeing more on the trade secrets matter, whistle-blowing matter, and any counter claims that may be filed. Until then…