Category: Expert Witness Testimony

Sales Funnel Expert Witness Practice - Interest Stage
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Interest: The Best Content Strategy for Expert Witnesses

on January 21, 2025

INTRODUCTION

In a previous Experts.com blog post, I wrote about how the sales funnel is relevant for expert witnesses. Specifically, we covered the importance of the Awareness Stage and measured its success with reach. But what happens next? What steps do you take after you reach your target audience? How do you keep them engaged? This post delves into the best content strategies expert witnesses can use to nurture their target audience in the Interest Stage.

Sales Funnel for Expert Witnesses - Interest

What is the Interest Stage?

After you’ve acquired your target audience’s attention, some may stick around because they find your content relatable or intriguing. These audience members are part of the Interest Stage, as they have shown consideration for your previous material or find you someone with whom they resonate. Maybe they voted in a poll you posted or thought the introductory video to your practice was worth the watch. Regardless, metrics such as likes, comments, shares, reposts, and follows give you insight into people occasionally interacting with you online. Now that you have the information in mind, how do you maintain their interest?

Unlike the Awareness Stage, where people are familiarizing themselves with your practice, those in the Interest Stage want to know the available solutions to their problems. This includes the advantages and disadvantages of those solutions. At this point, you have strengthened your audience’s recognition of your expert witness practice. Now, your digital marketing efforts need to be taken a step further.

So, nurture your audience by focusing on persuasion. Just simply posting about your brand is not fully engaging. How can you simultaneously stand out amongst competitors while helping your audience begin to consider whether to connect with you or hire you for their next case? What methods can you use to put your expert witness practice, into practice?

Engaging Content - Interest Stage Expert Witness Practice

Content Strategies for the Interest Stage

Thankfully, there are a few options to highlight the benefits of your business. With the following content types, you can clearly communicate why your services are the best option for your potential clients and cement credibility, authority, and trustworthiness.

Comparison Guides

Comparison Guides are excellent for visually communicating the possible advantages and drawbacks of your service. They also allow you to share the aspects of your practice that stand out among other experts in your area or field. Being upfront about all factors of your expert witness practice (price rate, location, industry specialization, certifications, etc.) can inform your audience of everything they need to know before attorneys and law firms decide to retain you.

Here are more examples of things to include:

  • Total number of times you have testified (“I have been retained 15 times in the last 6 years.”).
  • List the states where you hold certifications and licenses
  • Types of courts you have presented your expert witness testimony.

Testimonials

Testimonials are valuable because they are first-hand accounts that praise you and your expertise. Essentially, they are subtle referrals for potential clients to consider when looking for an expert in your field. Even though you already have a positive reputation or an esteemed practice, confirmation from secondary sources can only help you market yourself.

Case Studies

Case Studies are, without a doubt, the most influential pieces of content to show your target audience. It demonstrates your experience in court and/or mediation, and how your testimony helped your client. In addition, it also portrays the types of cases you get retained for or accept. If you have notable cases that you are allowed to discuss, then presenting them to prospecting clients gives them insight regarding how collaborating with you would play out.

Successful Case Study - Expert Witnessing

Parting Words

Overall, identical strategies will not work in all sales funnel stages. There are different methods you can use to maintain and grow your audience’s intrigue in your business and add value to your services. In our upcoming blog, we’ll discuss content strategies for the Conversion and Loyalty stages so you can learn how to retain repeat clients.

Artificial Intelligence (AI)Expert Witness Testimony

Expert Witness Testimony: The Risky Role of AI

on November 20, 2024

Introduction

A recent New York case shed light on the growing complexities of AI in expert witness testimony. An expert witness used an AI agent to estimate damages in a real estate dispute—only to have the court challenge the reliability of both the AI and the damages calculations in the judge’s order.

The court challenged the reliability of both the AI and the damages calculations in the judge’s order, issuing a stern warning about the need for disclosure before any AI-generated evidence is admitted. This incident serves as a cautionary tale for expert witnesses and attorneys navigating the uncharted waters of AI in legal proceedings.

I learned about this case from an Ars Technica article by Ashley Belanger. I highly recommend you read the article, “Expert witness used Copilot to make up fake damages, irking judge,” in addition to my description of the case below..

Trust & Estates Expert, Not Real Estate:

The expert in this case specializes in trust and estate litigation. More specifically, the trust and estates expert is knowledgeable in fiduciary duties, trustee standards of care, and prudent investor rules. The expert witness used Microsoft’s Copilot AI chatbot to assist in the damage calculations. This poor decision backfired when the court scrutinized the reliability of the AI-generated evidence and the expert’s methodology.

The judge’s order emphasized AI’s evolution in legal proceedings along with its inherent reliability issues. The court made it clear that before any AI-generated evidence can be admitted, full disclosure is critical. This incident is not an isolated one; there have been several notable cases where attorneys have submitted briefs citing non-existent case law generated by AI. These incorrect or wrongly generated case law citations are what you’ve heard described as hallucinations. It was only a matter of time before an expert witness made a similar misstep.

Keep within Your Expertise:

While the use of AI was problematic and rightly admonished by the court, it was not the primary issue in this case. The expert’s lack of relevant expertise in real estate appraisal, valuation, and damages was the root of the problem. As an expert witness, it is crucial to never opine outside your area of expertise. If a case falls outside your skillset, it is your responsibility to inform retaining counsel and either decline the assignment or limit your involvement to those aspects that are firmly within your expertise.

A close friend of mine and Experts.com, Mitch Jackson, Esq., seasoned lawyer and expert, recently declined an expert witness assignment we recently presented to him. He declined it for this very reason. It is better to turn down a case than to risk your reputation and the integrity of the proceedings by venturing into unfamiliar and inexpert territory.

The Dangers of Over-Reliance on AI:

In this case, the expert lacked the necessary expertise and relied on Microsoft Copilot to “cross-check” his calculations. Unfortunately, the AI-generated numbers were incorrect, further compounding the issue. This serves as a stark reminder that AI tools, while powerful, are not infallible and should be used with extreme caution.

If you don’t have relevant expertise, don’t know the proper formulas, and can’t verify the outputs, do not use the AI tool. Just as we used to check our math homework manually, the same principle applies to AI-generated results. If you cannot verify the accuracy of the output, it has no place in your expert report, deposition, or testimony.

The Reputational Risk:

Stories like this one, covered by reputable tech publications like Ars Technica, can have a devastating impact on an expert witness’s practice and reputation. In the digital age, news spreads quickly, and a single misstep can haunt an expert for years to come. It is crucial for experts to prioritize their credibility and integrity above all else, as their livelihood depends on it.

Artificial Intelligence - Expert Witness Testimony

Best Practices for Expert Witnesses

To avoid falling into the same trap as the expert in this case, follow these best practices:

  1. Stay within your area of expertise: Only accept cases that fall squarely within your field of specialization.
  2. Verify your results: Always double-check your work and ensure that you can support your findings.
  3. Educate yourself on AI: As AI becomes more prevalent in legal proceedings, experts must stay informed about its capabilities and limitations.
  4. Prioritize your reputation: Your credibility is your most valuable asset as an expert witness. Protect it at all costs.

Best Practices for Attorneys:

  1. Vet experts thoroughly: Ensure that the expert has the necessary qualifications and expertise for all aspects of your case.
  2. Communicate expectations clearly: Discuss the scope of the expert’s work and inquire as to appropriate methods and tools.
  3. Review expert reports carefully: Scrutinize the expert’s findings and methodology, asking questions and raising concerns as needed.
  4. Stay informed about AI developments: Keep abreast of the latest advancements and legal precedents involving AI in expert testimony.

In Summation:

The case above serves as a stark reminder or a bold warning of the challenges and risks associated with uninformed usage of artificial intelligence in your expert witness practice. As AI continues to evolve and become more integrated into the legal practice and court proceedings, it is crucial for expert witnesses and attorneys to approach it with caution and diligence.

The Fun Stuff:

This article is an elaboration of a LinkedIn post I wrote approximately 1 month ago. To really bring the experience full circle, I pumped the text of the LinkedIn post into my chosen AI chatbot “LawDroid CoPilot.” So what you read above is a human-reviewed article written by AI. I did check my outputs, unlike the expert in the case above. Also, since it was my post to begin with, I was familiar enough with the content to be able to check my own work. Also, I had a teammate peer review before posting.

Now, I want you to be the judge. If you notice any glaring errors or mistakes in the article, please bring them to my attention so that we use this as a fun activity to improve our AI-assisted outputs. Hint, there are some phrases that are used more than once!

DISCLOSURE: LawDroid is a company owned and operated by my friend and colleague Thomas G. Martin. I’ve known Tom for nearly a decade through our efforts in the legal technology space. I just like to support my friends in their endeavors. The LawDroid CoPilot product was named CoPilot before Microsoft’s CoPilot.

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Expert Witness 101 (Part 1): What You Need To Know

on April 16, 2024

INTRODUCTION

Have you watched any major court trials, like DEPP V. HEARD on Netflix or Casey Anthony: An American Murder Mystery on Hulu? If so, then you are familiar with a courtroom scene, the judge, jury, attorneys, and their clients. There are always witnesses, but what is the difference between a regular witness and an expert witness? Why are they necessary, and how would an attorney go about finding one? Who knows, YOU may qualify as an expert witness yourself but you just don’t know it. In this blog post you will learn if you have the qualifications and, if so, how to establish a new source of income.

Fair Trial or Deposition for Expert Witness

WHAT IS AN EXPERT WITNESS?

Expert Witness Definition

The significant benefit of this industry is that anyone can become an expert witness! According to Federal Rule of Evidence 702, “An expert witness is a person with specialized knowledge, skills, education, or experience in a particular field who is called upon to provide their expertise in legal proceedings to assist the court with understanding complex, technical, or scientific issues.” Attorneys serving the plaintiff and defendant can both hire expert witnesses and pay them for their testimony and consultation. The expert witness must also qualify under specific FRE 702 criteria to certify their testimony is “relevant” and “reliable.” As of December 1st, 2023, the amendments to the federal rule have gone into effect (photo credit – Perkins Coie):

Amendments for FRE R 702 Expert Witness Testimony

Proskauer similarly describes the new language added by the amendment as:

  1. A court may not admit expert testimony unless the proponent establishes its admissibility by a preponderance of the evidence.
  2. A court must find that an expert’s opinion follows from a reliable application of the methodology to the facts at issue before that opinion is heard by a jury.

Business Consultant Definition

Some experts choose not to work in litigation. They do not want to subject themselves to the possibility of grueling questions or contentious court proceedings. These professionals would be considered Business Consultants or Consulting Experts. They receive payment for their assistance in a settlement or mediation. These experts act in the same way as Expert Witnesses, but they do not testify in trial or present evidence to a court. 

How Much Experience Do You Need?

Unfortunately, a straightforward answer to this question does not exist. It is relative to your chosen industry. For instance, experience in the medical and engineering fields vastly differs from experience in more creative and less analytical fields. However, that is not to say one industry is superior to the other purely based on years of experience. Comparing experiences to others is like comparing apples to oranges; it can not be done. Ultimately, as long as you qualify under Federal Rule of Evidence 702, or the applicable state test, then you can be an expert witness.

Movie: My Cousin Vinny

One of the most unexpected yet hilarious examples of expert witness testimony is from the movie My Cousin Vinny.

Vinny Gambini, played by Joe Pesci, a fairly new street-smart lawyer from New York who’s prone to verbal shenanigans, accepts the opportunity to defend his cousin accused of murder. During the trial scene he puts his girlfriend, Mona Lisa Vito, played by Marisa Tomei, on the stand. From her looks (sequin sweater, short leather skirt, and bright red lipstick), one wouldn’t expect her to be qualified to testify about cars, a pivotal aspect of the case. It turns out her expertise stemmed from her practical experience working in her father’s garage since childhood. Mona Lisa’s hands-on knowledge of cars, engines, and automotive mechanics helped her analyze the tire marks in the scene.

I will spare the rest of the details to avoid revealing any spoilers. While the movie is fictional, the testimony scene is possible at a judge’s discretion. Here is Mona Lisa’s expert witness testimony scene from My Cousin Vinny.

EXPERT WITNESS TESTIMONY CRITERIA

The Daubert Standard

The court has a systematic framework to assess the relevance, validity, and reliability of expert witness testimony before it is presented to the jury. The Daubert Standard grants trial judges the responsibility to be “gatekeepers” of scientific evidence and aims to mitigate their reliance on an expert’s reputation and credentials. Lastly, all Federal Courts use the Daubert Standard. Some states may use the original framework, the Frye Standard.

From the Daubert Standard, trial courts use these five factors to prove the validity of expert witness testimony and methodology:

  • Whether the technique or theory in question can be, and has been tested.
  • Whether it has been subjected to publication and peer review.
  • Its known or potential error rate.
  • The existence and maintenance of standards controlling its operation.
  • Whether it has attracted widespread acceptance within a relevant scientific community.
Expert Witness Testimony

PARTING WORDS

To summarize, becoming an expert witness is not a complicated process. An expert witness is responsible for objectively opining on the facts of the case using industry knowledge to support their testimony. The law offers guidelines to ensure you qualify as an expert witness to secure valid and unbiased testimony from legitimate professionals. Becoming an expert witness or a business consultant builds credibility and expands business and networking opportunities. With the requisite knowledge, you can be confident and secure in your testimony. Stay tuned for Part 2 of this blog series, which will give tips for starting your business and the best practices to do so!

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Safeguarding Your Reputation as an Expert Witness

on January 16, 2024

In 20 years in the legal industry and nearly 14 working with expert witnesses, I’ve never seen such a damaging assault on an expert witness practice as I did at the end of 2023. Something so destructive it has the potential to erase an expert’s practice. It must be discussed as a cautionary tale.

DISCLAIMER: We are not taking a position on the performance or practice of Professor Eli Bartov. We have not read his reports, seen his trial testimony, or reviewed trial transcripts in the case of New York v. Trump. This article is about the impact of judicial statements on your expert witness practice and serve as caution when taking high profile cases. We still want you to take high profile cases.

What Happened?

On December 18, 2023, Reuters wrote an article that may absolutely destroy the expert witness practice of Professor Eli Bartov. Professor Bartov is a professor of accounting at NYU Stern School of Business. He served as an expert witness in the New York civil fraud trial against former President Donald Trump.

Other major news publications (CNBC, Newsweek, NBC News), with search engine domain authority, also wrote articles on and around the same date.

In each of these articles, the publishers quoted presiding Justice Arthur Engoron’s analysis of Professor Bartov’s testimony which stated, “All that his testimony proves is that for a million or so dollars, some experts will say whatever you want them to say.”

That statement, my dear friends and colleagues, can be a career killer for nearly any expert witness. The judge’s statement may not only affect Professor Bartov’s practice, but the rippling effect of its repetition by major publications tarnishes his online reputation. It is just the beginning of the trouble.

Worst Negative Statement by a Judge I’ve Ever Seen:

If you are an expert witness, you never, ever want a judge of any court to comment in such a negative way about your work. Judge Engoron’s statement essentially calls Professor Bartov a “hired gun,” and questions his competency by indicating the analysis is trash.

You cannot control what a judge says or does. Judges may find your methodology lacking or your opinions to be unsupported. A comment on those issues would be unfortunate but it would not destroy your credibility or reputation. Should the comment resurface in a future proceeding, a capable attorney would probably be able to rehabilitate your credibility as an expert witness.

We have long discussed the need to protect your reputation and credibility. Nothing is more important. The job of opposing counsel is to chip away at your credibility. A high-profile case like this is going to put your expertise and opinions under broader and more intense scrutiny. Not just by counsel but by the media.

After a while, some might ignore the comments of this judge. They may say it was a high-profile political case and the judge was biased against the defendant and thereby biased against the defendant’s experts. I’m not here to discuss those items. Leave the politics at the door. We take the outcome as a lesson to be used in your expert witness practice.

Impact of a Minor Negative Statement by a Judge:

Opposing counsel, in future cases, may scour records of previous cases to find your reports, deposition, and trial transcripts, and may read rulings by judges to find ways to discredit your work. It is their job to undermine your expertise for the benefit of their client. Do not take it personally. It is an unfortunate side effect of our adversarial judicial system.

If they find a negative statement by a judge, they may use it against you in trial to impeach your credibility or question your reputation.

It is the job of the lawyer or law firm that retains your services to counter impeachment-attempts and to rehabilitate your credibility. You assist your counsel in countering impeachment attempts by doing objectively good work, using defensible scientific methodologies and taking cases where you know you can provide an objective and dispassionate analysis.

With some effort, a normal run-of-the-mill disparaging or negative comment by a judge is easily outweighed by your other solid work.

Why this is so Damaging Beyond the Courtroom:

As I mentioned above, so many major news organizations reported about this statement by Judge Engoron. When reading the Reuters article and the damaging comment about Professor Bartov’s efforts in the case, I had to dig further to see how this proliferated. More than4 weeks later the problem continues. I’m not sure SEO geniuses can rehabilitate the online reputation.

Here are some searches a lawyer is likely to do in the preliminary stages of due diligence before hiring this expert in the future.

I encourage you to conduct the following searches, noting that the results may vary by date and location. Here is one search a lawyer is likely to do:

Professor Bartov, NYU Stern School of Business has excellent domain authority and ranks right at the top of a Google search. It is the 3rd organic search result that lets you know the professor testified in a trial involving a former US President. That’s an article of interest for any attorney considering retaining an expert.

There’s nothing horrifically bad in this article. It talks about the amount of fees, but reporters love to write about the amount of expert witness fees. You do see that out of the first seven results, the last 2 results discuss credibility. That becomes a significant issue for any expert.

Let’s try another search. How about “eli bartov expert witness.”

Ouch. We now have several search results discussing credibility.

Most attorneys concerned about hiring an expert witness to assist with a client matter may be now totally unable or unwilling to take a chance on an expert with this sort of easily identifiable negative coverage.

You see, even if the judge was wrong in his statement, the media could have entirely destroyed any chance for this expert to be hired in a future matter because an attorney cannot take the chance of hiring this person and having their credibility called into question.

Finally, let’s assume another simple search. What if counsel searches “eli bartov trump.” This is the worst result.

Okay, well let’s try Bing and see if the results are any different. We try “eli bartov” again.

You get the drift. Second result discusses credibility. It’s very damaging.

In Conclusion:

Any lawyer considering retaining your services is going to be nearly impossible if they find this kind of coverage because opposing counsel is going to have a field day with these stories.

Might you be able to rehabilitate this reputation? Maybe. Will counsel be willing to take on that fight when they’re trying to win a matter on behalf of their client? Unlikely. Remember, you’re in business and you must sell your reputation.

I do not want to dissuade you from taking high-profile matters. They can be great for your practice. They can also be awful for your practice.

If you’re on a high-profile case, it is that much more important to do objectively good work, using defensible scientific methodologies and taking cases within your expertise where you know you can provide an objective and dispassionate analysis. Remember that your analysis will be under more microscopes than normal.

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Law: Gender Gap in Expert Witness Work

on February 15, 2023

On June 10th, 1963, the Equal Pay Act was enacted to require men and women to receive the same pay for the same work. Over 50 years later, gender equality still dominates workplace conversation. Since the 1960s, this “pay gap” has closed significantly, so it is best to recognize progress. For some industries, however, the pay isn’t even the issue. It’s the gender, or lack thereof. In a multi-million-dollar industry with many participants, it is difficult to ignore the underrepresentation of women in the expert witness industry. 

The Financial Times stated, “Last year in the Who’s Who Legal expert witness directory, just 16 percent of the experts listed were female.” The same article also mentioned a 2020 study by PwC and Queen Mary University. Out of 180 arbitral proceedings awards managed by the International Chamber of Commerce in Paris and New York between 2014-2018, only 11% were given to female expert witnesses. This blog aims to explain why the gap exists, provides tips for those in the legal industry to encourage women to participate in expert witness work, and includes accounts from Liability Insurance Expert and Experts.com Member, Jane M. Downey, ARM, M.Ed.

Three central reasons contribute to the scarcity of female expert witnesses. The first reason is simply that it is a male-dominated industry. For instance, according to Bloomberg ABA/BNA Lawyer’s Manual on Professional Conduct, “an astonishing 80 percent of expert witnesses chosen by attorneys are male.” Considering the field has been male-centric for an extended period, attorneys are more inclined to work and cooperate with male expert witnesses. The second reason stems from the first, which is a lack of availability. The same article states “there are far more male experts to choose from in almost all specialties – with the prominent exception of nursing.”

The third reason involves gender stereotypes and roles which have always existed in our society. The Jury Expert released an article about the ways gender bias affects both male and female expert witnesses. An excerpt from the article states, “Some studies have shown that men may be more influential and persuasive than women, particularly when they occupy traditionally masculine roles.” Prejudice is more likely to surface when women pursue roles that do not correspond to their gender’s expectations (structural engineer, police policy, construction defect), which may occur on a case-by-case basis. That is not to say people should only pursue occupations limited to their gender norms. The prejudice correlates to how an expert may be perceived by juries and judges. “The degree to which the expert’s gender and the type of case agree (what researchers call ‘gender congruence’) may be important in determining whether a male or female expert will be more credible and persuasive,” The Jury Expert.

The above reasons generally explain the lack of female expert witness testimony. Individually, women have different experiences in their expert witness work. The following is an insightful Q&A with Jane M. Downey, ARM, M.Ed, regarding her experience as a female Liability Insurance expert witness:

Q: How did you discover expert witness work?

A: My first case was a referral from the President of the Insurance Society of Philadelphia. I did not like that case because it had a 48-hour Federal turnaround timeline and was very stressful; therefore, I did not pursue the work until a few years later. It was then I was approached on a massive case, and I really enjoyed the work and the team of attorneys that I supported.

Q: What was the deciding factor for you to participate in providing expert witness testimony?

A: I have always loved to write and teach.

Q: Have you faced any difficulty as a female expert witness?

A: I think being female has given me an advantage. I stand out in all the listings.

Q: Why do you think there is a gender gap in the insurance industry? Do you think it might be attributed to a lack of knowledge of expert witness work as an option for financial income or other factors like gender roles?

A: I think there is a gender gap in the insurance industry, but it is much narrower now than in other industries. To be an expert witness, you have to be willing to be confrontational. I know a lot of women who avoid conflict.

Q: How should the legal industry encourage women to consider participating in expert witness work?

A: Training, training, training. I did not realize until recently that my master’s degree in Group Dynamics prepared me for this work and my work as an insurance arbitrator.

There are initiatives in place to inspire women to consider expert witness work as a part-time or full-time job. The previous Financial Times article highlighted a campaign called The Equal Representation for Expert Witnesses. Initiated in 2015, its goal is to help women market themselves to the legal industry. According to the article, “the pledge has 4,129 individuals and 983 organizations in 143 countries as signatories.” With movements such as this, hopefully, we will see more women entering the arena of participants for expert testimony.

Ultimately, attorneys, male or female, must do their due diligence in selecting the most highly qualified expert for their case, regardless of gender. But if women are absent from the pool of experts there can be no expectation for change. With proper training and industry knowledge, women can find expert witness work to be intellectually challenging, lucrative, and satisfying. A special thank you to Liability Insurance Expert and Expert.com Member Jane M. Downey, ARM, M.Ed for taking the time to contribute to our latest blog post.

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Experts.com Brings Attorneys and Expert Witnesses Together with its AssistedSearch Service

on August 9, 2022

In the years since Experts.com launched, we have offered an expert witness location solution which reduces the costs of litigation. Our founder, Nabil Zumout, was deep into the Internet while practicing as law as an attorney in 1999. He was searching for an expert on a case and was using Google before Google was the cool 800-pound Gorilla of search engine advertising that it is today.

At that time, Nabil determined there was no need for him to reach out to an expert witness broker to locate expertise. Information was democratized and at his fingertips. He could search for experts himself. The benefit of self-searching is his client didn’t have to pay an additional 25-50% markup on each hour billed by the expert witness. There was also no need to pay a finder’s fee for those brokers who required such.

For years we encouraged lawyers to search our site and contact experts directly. In fact, we still encourage this effort. In most situations, you can locate and communicate with the appropriate candidates for all your needs. Based on our data, we estimate about 99% of our users search the site, locate an expert, and retain them without having to contact Experts.com.

Our mission was being accomplished. For those willing to use the Internet, they could find what they needed by conducting a simple search on Experts.com. However, over the years we’ve discovered there is another group of lawyers who do not want to conduct the search themselves.

Whether they are too busy or still uncomfortable with a basic Boolean search, we do not want to lose them as customers and we do not want our experts to lose the prospective business.

Announcing our AssistedSearch Service:

To continue our mission of reducing the cost of litigation, we did not want to participate in billable hour markup or brokering of the engagements between lawyers and experts.

We determined the best way to achieve this while also efficiently connecting attorneys and experts, was to offer a flat-fee location service. For those who have read this far, our flat-fee service is $995.00.

What’s Included?

Simply reach out to us by clicking Assisted Search Request. Provide us with a brief description of the case and the type of expert you need.

  • We’ll follow up with a brief questionnaire for a clearer understanding of the nuances of the case, opposing counsel, and timeline.
  • After our communications with you, our team will begin the search, interviewing potential candidates to determine qualifications and ability to assist.
  • At the conclusion of our communications with available candidates, we will send you a report of our most qualified group of candidates with a brief description of the exchange. The referral is processed at this time.
  • Additionally, we create an account for you on Experts.com and include a link to each qualified expert. Each of your requests is tracked separately in this account. You can even communicate with the candidates through our cloud-based tracking system.
  • Our flat fee is $995 for a minimum of 6 hours of location services at an hourly rate of $165. If we are unsuccessful in providing qualified candidates, the fee is waived.
  • At no point do we add a premium to the expert’s hourly fees.

Free Database Search:

Don’t want to use our AssistedSearch service? You always have the option of searching Experts.com and communicating directly with the experts. The contact information of those actively marketing their services on our site is always available.

Ultimately, the goal at Experts.com is to make the process efficient and affordable for all parties. If you have any questions about Experts.com or our newly minted AssistedSearch service, feel free to reach out to us here.

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Cancer Verdict Overturned: Trial Court did not follow Daubert Expert Witness Standard

on July 26, 2021

$117 million talcum powder Mesothelioma verdict overturned by failure of the trial court to follow their gate-keeping role.

In an article today from Husch Blackwell, they highlight a case in which a significant verdict for the plaintiffs was recently overturned by the appellate court for failures to conduct a proper Daubert analysis.

As most of our members are aware, a “Daubert hearing” or “Daubert review” is the standard used by the trial court for admitting expert witness testimony. It is the federal standard for admitting expert witness testimony, but the standard has been adopted by a majority of US states.

For your brief review, I’ve decided to add the elements of the Daubert test below, from Cornell Law School:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

There have been a wide variety of mesothelioma lawsuits against manufacturers and distributors of baby powder products. Generally speaking, the issue arises from long-term talcum powder use allegedly exposing plaintiffs to asbestos in the talcum powder which causes mesothelioma.

In my 11 years in the expert witness field, there have only been a couple toxic tort matters where the science has been as fiercely contested as it is in the talcum powder cases. The only other cases in recent memory where the science is hotly debated involves lymphoma resulting from the herbicide Round-Up. The Round-Up lawsuits resulted in an $11B settlement between plaintiffs and defendants.

This talcum powder case out of New Jersey, was very similar to the other talcum powder cases. The plaintiffs, Stephen Lanzo III and his wife sued a variety of defendants including one Johnson & Johnson subsidiary, claiming Mr. Lanzo’s long-term use of baby powder caused him to contract mesothelioma.

The trial judge permitted testimony from two of plaintiffs’ expert witnesses, Dr. James S. Webber, Ph.D. and Jacqueline Moline, M.D. On appeal, the 3-judge panel overturned the verdict because they didn’t think the trial court applied a proper Daubert standard in permitting the testimony from doctors Webber and Moline.

According to the article from Husch Blackwell attorney Brittany Lomax, the appellate court basically found that three prongs of the Daubert test were not met, “Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform ‘its required gatekeeping function’ by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.”

As a result, the appellate court remanded to the trial court and ordered new trials for two of the defendants.

It is worth noting, this is a major win for defendants in these talcum powder cases. It appears the appeals courts, at least in New Jersey, are going to review scientific evidence with exceptional rigor.

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Expert Witness Liability, According to the U.S. 4th Circuit Court of Appeals

on November 2, 2018

Recently, we have received some questions from expert witnesses regarding potential liability for expert witness testimony. The U.S. 4th Circuit Court of Appeals decided this issue last Friday.

Last week, on October 26th, 2018, the United States, Fourth Circuit Court of Appeals ruled that the federal common law “witness litigation privilege” protects an expert witness for civil claims stemming from their testimony.

The best summary of the decision that I found comes from Pillsbury Winthrop Shaw Pittman LLP’s, Gravel2Gavel Blog. You can find the blog post here.

The matter involved a coal miner who was claiming benefits under the Black Lung Benefits Act. According to the expert witness the evidence did not support the plaintiff’s claim and the claim was denied. Thereafter, a report from the Center for Public Integrity alleged the “Johns Hopkins radiology unit and its expert witnesses were much less likely to find evidence of black lung disease than other doctors.”

The report from the Center for Public Integrity led to a lawsuit against Johns Hopkins and their doctors claiming liability for fraud, tortious interference, misrepresentation and more. The trial court dismissed the claim citing the federal common law “witness litigation privilege.” According to Gravel2Gavel, the appeals court was divided on the issue, but agreed with the trial court decision.

The Fourth Circuit stated “absolute immunity” applies to the expert witness testimony. They went further to state, “‘when a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages.’” This is a really wordy way for the court to say an expert witness cannot later be sued for their testimony.

We also went ahead and summarized the ruling in this video:

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Florida Supreme Court Says ‘No’ to Daubert Expert Witness Standard

on October 17, 2018

Since 2013, Florida has been the center of a battle over admissibility standards for expert witness testimony.

Prior to a move by the legislature in 2013, Florida followed the Frye Standard (i.e. general acceptance test). This test is considered a more lenient in allowing for expert witness testimony.

Normally, this standard is preferred by plaintiff’s counsel and disliked by defense counsel. Much like the “general acceptance test,” my last statement is a generalization.

In 2013, the Florida Legislature passed a law changing the admissibility standard from Frye, to the federal standard commonly referred to as Daubert Standard. Rather than the general acceptance test, the judge as the gatekeeper, would apply a multi-pronged test to analyze the admissibility of expert evidence. Here are the prongs per Cornell Law:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

Most of our members are familiar with the Daubert Standard because it is the standard used by federal courts and more than three-quarters of US states. Naturally, my home state of California still uses Frye because we always want to do things a little differently. Well, according to the Florida Supreme Court ruling this week, Florida likes to do things differently as well.

To summarize, the Florida Supreme Court found the law implementing the Daubert Standard to be an unconstitutional infringement on the court’s authority by the legislature.

The decision was covered by CBS Miami, and the most pertinent part is as follows:

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis and Jorge Labarga. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

It was a 4-3 decision by the Florida Supreme Court and the Chief Justice offered an impassioned dissent. For our members practicing in Florida, the law is clear, the Supreme Court has decided Frye is the appropriate standard for Florida.

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Trump Lawyer Michael Cohen’s Home and Office Searched by Feds: Attorney-Client Privilege?

on April 10, 2018

Yesterday, news broke about the FBI raiding the home and office of longtime Donald Trump attorney, Michael Cohen. All the major news outlets and talking heads are discussing the matter. Naturally, I felt I should join in and add some food for thought from the expert witness perspective. Assuming the case against Michael Cohen goes to trial, there are likely to be a variety of experts called to opine on different issues. At the time of this writing, reports indicate the federal government is investigating Mr. Cohen for both bank fraud and wire fraud.

Here is what we have learned since yesterday. According to NBC News:

“On Monday, the FBI raided the law office of Michael Cohen, President Donald Trump’s personal lawyer. They were seeking information about a $130,000 payment the attorney says he personally made to adult film star Stormy Daniels days before the 2016 election, sources told NBC News.

The search warrants were sought and executed by FBI agents and federal prosecutors in New York in coordination with special counsel Robert Mueller’s team after an initial referral from Mueller’s office.”

We have further discovered that Special Counsel Robert Mueller would have to consult with Deputy Attorney General Rod Rosenstein if his investigation discovered evidence unrelated to Russian interference in the US election. If such information was discovered, Rosenstein would then have to decide to expand the scope of Mueller’s investigation or refer the new investigation to another US Attorney’s office. It appears the Cohen investigation was referred to the US Attorney’s office for the Southern District of New York.

In essence, search and seizure of a lawyers office, where that lawyer maintains protected attorney-client communications, had to go near the top of the Justice Department. Thereafter, a warrant had to be approved by a federal judge, before the FBI could conduct the raid and seize these protected communications (among other evidence).

What about attorney-client privilege?

We should start with a simple definition of the attorney-client privilege. Here is a definition from Nolo.com: “The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to.”

Finding the violation of attorney-client privilege a little disconcerting (note, I am not addressing the possible crime-fraud exception to the rule), I reached out to one of our legal and judicial ethics experts for comment. Experts.com member, Mark Harrison, Esq., is an Arizona-based civil and appellate litigator at the firm of Osborn Maledon, PA. He has extensive experience litigating and testifying in cases involving legal malpractice, legal ethics, and judicial ethics.

My request of Mr. Harrison was as follows, “Do you see any issues arising from this seizure related to fiduciary duties, attorney-client privilege, judicial ethics, or other items?”

Mr. Harrison provided me with a rather thorough explanation based on available information. Details about the subpoena or the documents seeking the subpoena have not been reported at this time. I have included several pertinent comments from Mr. Harrison, below:

“As I am sure you are aware, in order to get a subpoena issued in this situation the US Attorney had to satisfy a magistrate judge or a federal district judge that there was good cause for the issuance of the subpoena.

The potentially dicey ethics aspect involved in a situation of this kind is the risk that confidential client information – other than the information clearly covered by the subpoena – is inadvertently or unintentionally taken by the FBI officers executing the subpoena.”

According to news reports, none of us know whether Mr. Cohen has clients other than President Trump. If he does have other clients, Mr. Harrison explained, “the FBI officers executing the subpoena must exercise great care not to compromise the confidentiality afforded the information of other clients in Mr. Cohen’s files or to compromise the confidentiality of information relating to Mr. Trump that is beyond the scope of the subpoena.”

My personal experience in law firms and my professional responsibility education in law school left me with the belief that the attorney-client relationship was sacred. There was good reason for this as it encouraged clients to be open and honest with counsel so counsel could zealously represent their interests. As such, I am hoping the FBI does exercise great care in the review of these files. However, in reviewing documents, the FBI has to view the documents to know whether or not they are “beyond the scope of the subpoena.”

I had one follow up question for Mark Harrison. I asked if he thought a judge would ask an expert on legal ethics to oversee the review of attorney-client files to make sure the federal agents didn’t go beyond the scope of the subpoena? In asking this question, I also realized that the judge is likely to fill that role. However, I was interested to see if additional oversight might be necessary in this case.

Mr. Harrison said “I would be surprised if the judge or magistrate appoints an expert for that purpose unless Cohen’s lawyer seeks that oversight.”

So, based on information available to us at this point, the attorney-client privilege has or will be breached by the federal agents in their review of documents maintained by Mr. Cohen.

It’ll be interesting to see how this case develops and what other expert witnesses may be involved in a future criminal prosecution.

Does this open Michael Cohen to professional malpractice?

Some questions I have for future blog posts are as follows: Does the breach of attorney-client privilege by the FBI, expose Mr. Cohen to malpractice liability? Does the attorney have a duty to conduct himself in a way that would have precluded the FBI or anyone else from seizing all of his files? Does an attorney have a professional responsibility to avoid suspicion that may potentially place confidential client information at risk of being breached? Or, does the issuance of a search warrant protect the attorney from civil liability?

 

 

 

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