Category: Expert Witness Testimony

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

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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Voodoo Cases Trigger Memories of Child Witchcraft Expert Witness Request

In an article posted today in the Associated Press on Yahoo News brought back memories of one of the most unusual expert witness requests ever received. In the article from Yahoo News, Voodoo followers fear a backlash after two separate crimes against children were committed in the last two months. Due to similarities in the crimes, authorities have identified Voodoo rituals as a motivating factor in the injuries sustained by the child victims.

The two cases happened in Massachusetts. The first crime occurred in East Bridgewater, MA, when two sisters were arrested for restraining and burning a 5-year-old girl in an attempt to rid her of a demon. The child suffered permanent disfigurement. The violence against the child was described as a “Voodoo ritual.” Nearly a week later in Brockton, MA, a mother was arrested for stabbing two of her children in what the mother described as “Voodoo stuff.”

Two separate crimes, within close proximity, and both mentioning or characterizing rituals as related to Voodoo, have upset followers of local community members who practice Haitian Vodou, as they fear the crimes will result in a backlash against their culture and religion. The article explains “practitioners of Haitian Vodou, which adherents spell differently to distinguish it from other variants, say the religion does not sanction violence and fear the crimes will spark a backlash against their community.”

Reading this article sparked a memory of one of the most interesting cases presented to me during my time with Experts.com. It was not the most high-profile expert witness request I had ever received, but it was one of my first international expert requests.

The Child Witchcraft Expert Witness Request

Criminal defense counsel out of UK had contacted me via email. He was looking for several expert witnesses. His first two requests were common enough: forensic psychiatrist and child psychologist. It was the third request, for a Child Witchcraft expert, that forced me to do some in-depth research and search beyond our database to located the appropriate expert witness. First of all, I had no idea to what the attorney was referring. This was the first time in my life I had ever heard of the “Child Witch Phenomenon” or “Child Witchcraft.” As such, the research on the subject was basically to educate myself on the topic before I started contacting expert witness candidates.

While researching, I discovered… In several countries in Africa (Nigeria, Congo and others), there is a severe cultural and religious fear of witches as they are the crux of evil. According to this 2010 article from CNN, “Pastors in southeast Nigeria claim illness and poverty are caused by witches who bring terrible misfortune to those around them. And those denounced as witches must be cleansed through deliverance or cast out.”

Often, children are the ones accused of being witches. In order to cleanse the child, they are beaten, tortured, and sometimes buried alive. Some children have been stabbed to death in an attempt to free them from the witch’s grasp.

Religious leaders in some African countries have taken advantage of this belief in Child Witchcraft. They will offer to expel or exorcise the witch for a price. A pretty good way to make a living if you are dealing with a poor and uneducated populace. Rather than being made aware of mental health disorders that could be impacting a child’s behavior, these pastors have made a living preying on a family’s fear.

How did the case make it to the UK?

The UK has a large immigrant population. Those emigrating from areas in Africa where the Child Witch Phenomenon is rampant, now find themselves in a new country with new laws and a different appreciation of mental health disorders and treatment.

At the time we processed the referral for a Child Witchcraft expert witness, I recall there having been 10-12 UK-based criminal trials involving Child Witchcraft allegations. A child appears uncontrollable, possibly dealing with early onset mental illness, and the parents seek the counsel of religious leaders. Those leaders recommend exorcism. Exorcism involves violence, the child is severely harmed, the police get involved, and criminal complaints are filed. The prosecution begins.

Is this now happening in Massachusetts? Instead of the Child Witch Phenomenon, is the State dealing with a similar Voodoo-based phenomena?

How do we as a society, address these types of issues before the child is endangered and the parents are on trial? Is it a matter of educating parents, community, and religious leaders about mental illness? Do we need to improve awareness of treatment? Your comments are welcome!

 

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Opioid Crisis – An increase in addiction medicine and pain management expert witnesses.

In the nearly 8 years that I’ve been with Experts.com, I have noticed a massive increase in the number of addiction medicine and pain management expert witnesses marketing their services with our company. Between 2010, when I joined Experts.com, and today, the increase has been nearly five-fold.

Is this increase a surprise? Based on what we’re seeing in the news, the answer is no. The United States is experiencing an opioid epidemic. According to CNN’s Opioid Crisis Fast Facts, “more than two million of Americans have become dependent on or abused prescription pain pills and street drugs.” CNN further explains, “during 2015, there were 52,404 overdose deaths in the United States, including 33,091 (63.1%) that involved an opioid. That’s an average of 91 opioid overdose deaths each day.”

Just last week, I spoke to one expert witness who experienced an opioid-related death in his family.  The same day, hours apart, another expert began promoting his pain management and addiction medicine services on our site. This epidemic is impacting millions of families throughout our country. As a result of this epidemic, and much of the overdoses stemming from prescription medication, we are beginning to see significant litigation in the area of opioid-based pharmaceuticals.

Our Opioid Litigation Experiences:

Experts.com has processed more than a handful of expert witness referrals related to opioids. The cases have ranged from prescription abuse in family law settings to overdose issues resulting in wrongful death actions. Probably the most interesting opioid-related matter was as follows: general counsel for a mining company in a small town discovered the townspeople were using methadone at a rate approximately 5 times higher than the national average. Many citizens of the town were also employees of the mining company. They grew concerned about the potential liabilities of employees operating heavy equipment while ingesting powerful pain killers. The company decided to do some testing which triggered some privacy concerns and potential litigation. We have delivered toxicologists, addiction medicine specialists, and pain management professionals in dozens of different opioid-related cases.

Recent Litigation:

In the last few years, we have seen stories of both civil and criminal litigation related to the opioid epidemic, even before it was claimed to be a crisis. Here are a few of the cases you may want to follow:

Civil Litigation:

There have been many lawsuits against Purdue Pharma (maker of OxyContin) since the early 2000’s. As one article explains, more and more state and local governments are launching lawsuits against the manufacturers and distributors of heavy-duty pain medications. The frequency of these lawsuits is almost weekly.  In addition to Purdue Pharma, Cardinal Health, Teva Pharmaceuticals, Janssen, and others are targeted.

In July of this year, one of the lawyers, Michael Moore, who targeted tobacco companies in the 1990’s, began urging state lawsuits against the drug makers. By August, an Oregon County sued pharmaceutical companies for $250 million for allegedly persuading physicians to over prescribe opioids. As of September, Attorneys General in 37 states were urging insurance companies to do more to curb the opioid epidemic.

What can we deduce from the high-profile coverage of civil suits against the makers of pain killers? In my assessment, the worst is yet to come for the drug makers. This does not mean the drug makers are defenseless against the lawsuits. After all, there are others in the supply chain to be blamed: doctors, pharmacies, and the patients themselves. Over the long-term, the pain medication lawsuits are likely to be very costly for manufacturers and distributors.

Criminal Litigation:

For the sake of brevity, I’m going to ask you to assume that there is significant drug related crime and we’re going to skip the standard (possession and distribution) opioid cases. Where I have noticed a substantial increase, both in the news and in requests for expert witnesses, is in criminal prosecutions of prescribing physicians and pharmacists.

As CNN described, “doctors are increasingly being held accountable — some even facing murder charges — when their patients overdose on opioid painkillers they prescribed.” The article further explains that the DEA took action against 88 doctors in 2011 and 479 doctors in 2016. One of the doctors described has been convicted of murder. I see at least one new story a week where a doctor, or pharmacist, is being held responsible for the excessive amounts of pain killers prescribed.

The numbers described in the article above, combined with a more aware public, lead me to believe we’ll see even larger numbers of DEA actions against doctors when the 2017 statistics are available.

Other Legal Issues:

As you can tell, I focused on the two areas that I’ve noticed the largest increase in visible litigation. We have processed many other expert witness referrals associated with opioid issues. Many overdose cases are resulting in medical malpractice actions as well as actions brought by medical boards for ethical violations by doctors.  We often see the requests for expert witnesses relating to emergency medicine physicians, toxicologists, pharmacy and pharmacology experts, and more.

Opioid litigation may very well be the “tobacco” litigation of our time.  As such, we are confident that we’ll have more to write about and discuss in the future.

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Paul Manafort Indicted: What expert witnesses can we expect to see from defense and prosecution?

Robert Mueller’s investigation into Russian interference in the US Presidential Election has resulted in the indictment of Paul Manafort and one of his business associates, Rick Gates. It has been reported that a third individual, George Papadopolous, has pleaded guilty for making false statements to the FBI.

None of this is particularly surprising. On Friday we learned the first indictments would be handed down as early as today, and that is exactly what happened. As of this writing, Paul Manafort has turned himself into the FBI’s Washington Field Office.

ABC News reported the list of charges against Mr. Manafort and Mr. Gates. The 12 counts include: “conspiracy against the United States, conspiracy to launder money, serving as an unregistered agent of a foreign principal, false and misleading Foreign Agents Registration Act statements, false statements, and seven counts of failure to file reports of foreign bank and financial accounts.”

We are not writing to take any political side and it should be noted that an indictment does not mean the defendants are guilty of the charges. In fact, they are innocent until proven guilty. Rather, we wanted to discuss the expertise which may come into play in this matter.

What types of expert witnesses can you expect to see?

Forensic Accountants:

Based on the counts enumerated above, it appears the FBI has followed the money. As such, we expect the forthcoming prosecution will hinge on financial transactions and accounting related issues. As stated above, Manafort and Gates were charged with seven counts of failure to file reports of foreign bank and financial accounts in addition to conspiracy to launder money. If money is flowing in and out of multiple bank accounts forensic accountants are going to be needed to analyze the transactions and explain those transactions to the trier of fact.

Money Laundering / Anti-Money Laundering Experts:

Are you surprised to hear this type of expertise exists? Money laundering experts may have a background in forensic accounting, financial fraud, banking, and banking compliance. Again, there was a charge of failure to file reports of foreign bank and financial accounts. Failure to report these accounts might be a compliance issue. The prosecution could argue such a failure was purposeful and intended to evade reporting. Whereas, the defense may contend failure to report was accidental or negligent. We expect to see both sides presenting expert evidence on financial transactions and reporting.

Computer/ Digital Forensics:

Nothing in the counts of the indictment specify a digital forensics expert will be necessary. We are assuming that many of the financial transactions were done electronically and therefore attributing the transactions to the defendants may require electronic discovery and other digital forensic investigation / analysis.

This list should not be viewed as exhaustive. Looking at the counts in the indictment, it appears the upcoming case will be heavily litigated on financial matters. Going forward, we will look for news items related to forensic accounting and inform our readers as we know more.

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Suzanna Ryan – Forensic DNA Expert Interview

In this one hour interview offered by Experts.com and moderated by Nick Rishwain, Forensic DNA Expert, Suzanna Ryan, expounds upon her experience and expertise.  Through targeted questions and answers, viewers get a better understanding of what services a Forensic DNA Expert Witness can offer to attorneys. Ms. Ryan also explains the circumstances under which she is retained as a consultant, unrelated to litigation.

Suzanna Ryan, MS, D-ABC, is a former forensic DNA analyst and forensic DNA Technical leader with 15 years of experience in the field of Forensic Serology and DNA Analysis. She has had the opportunity to work for both public and private DNA laboratories and has testified numerous time for both the prosecution and the defense.

Ms. Ryan has been accepted as an expert witness in forensic serology and DNA analysis over 60 times in her career in state superior courts, state supreme court, federal court, and military court, and has been deposed as an expert witness in both criminal and civil trials over 20 times.

View Suzanna Ryan’s Profiles on Experts.com

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Expert Witness Credibility Can Make or Break a Case

In the forefront of legal news today is the Glossip v. Gross death penalty challenge / lethal injection case before the Supreme Court. Set for oral argument today, the Justices must determine if Oklahoma’s use of the common surgical sedative midazolam fails to make prisoners unconscious during lethal injections, violating the Eighth Amendment’s protection against “cruel and unusual punishment.”

According to ProPublica, the case took a turn when Oklahoma’s pivotal witness, Dr. Roswell Lee Evans, testified in trial that inmates “would not sense the pain” of an execution after receiving a high dose of midazolam. That, in and of itself, is not enough to turn heads but legal and medical professionals took note when Dr. Evans, a board certified psychiatric pharmacist and the dean of the Harrison School of Pharmacy at Auburn University in Alabama, testified that he has never used midazolam on a patient, nor has he ever personally induced anesthesia.

To make matters worse, 150 pages of his 300 page expert report were printouts from the consumer website Drugs.com, whose disclaimer reads, “not intended for medical advice, diagnosis or treatment.” Furthermore, pundits were grumbling at the fact that Dr. Evans had not published a paper related to his pharmacology research since 1996.

Last month, a brief was filed by 16 independent professors of pharmacology disputing Dr. Evans’ claim. The professors, according to Probublica, contended that, “It is widely recognized in the scientific and medical community that midazolam alone cannot be used to maintain adequate anesthesia…”

Caution SignCaution all Expert Witnesses! Credibility is Everything.

Once general competency is satisfied, an Expert Witness’ knowledge of the subject matter affects the weight and credibility of his testimony. Since a general rule of evidence is that a witness may only testify to what they have personally observed or encountered through their five senses, this “Sunday Pundit” is concerned for the good doctor. His lack of experience with the midazolam, his unreliable sources, and his lack of peer support do not bode well for him or the state of Oklahoma.

Ponder the The Daubert standard  for evaluating the reliability and relevance for “good science” and make your own judgment:
1) whether the scientific theory can be (and has been) tested;
2) whether the scientific theory has been subjected to peer review and publication;
3) the known or potential rate of error of the scientific technique; and
4) whether the theory has received “general acceptance” in the scientific community.

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