Category: Expert Witness

EvidenceExpert WitnessExpert Witness Testimony

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

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 StandardRather 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.

EngineeringExpert WitnessWeather

Hurricane Floodwater & Wastewater: Sanitary Engineer Expert Witness Analysis

Five days after Hurricane Florence made landfall and pounded parts of the East Coast with winds and torrential rains, many areas are still inundated with flood water.

The floods have been devastating. Not only are the waters causing extreme property damage and personal injuries (in some instances death), they are also carrying contaminants and pollutants which have severe public health concerns.

Yesterday I read about some of the pollutants entering the floodwaters. Some of the items include: dead animals (turkeys, pigs, chickens), chemicals, manure, and untreated raw sewage. In fact, Bloomberg reported farm lagoons (storing feces and urine) had given way and sewer treatment plants have been overwhelmed by the rains.

Specifically, there are a variety of issues caused by these contaminants being washed away and transported via floodwaters. Bloomberg points out some of these concerns:

“Hog waste contains E. coli and bacteria, Rumpler said. Sewage overflows, combined with high floodwaters, bring the prospect of ecological impacts including fish kills. Humans coming into contact with fecal matter risk viruses, parasitic infections and rashes.”

So, there are some things our citizen brothers and sisters should avoid in North Carolina. Try to avoid swimming and wading through floodwaters. Remember the water is NOT just rain water. It is NOT clean. Those floodwaters include wastewater. Citizens should probably continue drinking bottled water until local authorities tell them otherwise.

That is enough of my non-expert suggestions. I’ve reached out to a sanitary engineering expert witness for some insights.

Sanitary Engineering Expert Witness Bonneau Dickson

Bonneau Dickson, PE, is a Sanitary Engineer with over 35 years of experience in all aspects of studying, designing, and constructing water, wastewater, and stormwater facilities, both in the United States and abroad. Mr. Dickson has designed approximately 300 water, wastewater, and stormwater projects. Has been resident engineer or otherwise participated in the construction phase of approximately 20 water and wastewater projects. Mr. Dickson has both project management and general management experience as project manager on approximately 175 projects.  You can learn more about his practice here: bonneaudickson.com.

Nick: With the post-Hurricane Florence flooding, we are reading about heavily polluted waters (pig excrement and raw sewage). What can North Carolina authorities do to address these sewage overflows and treat the wastewater?

Mr. Dickson: Very little. The pollution has escaped and there are few or no practical means of recapturing it.

The good news is that the torrential rains are likely to flush most of the pollution out to sea where it will decompose and be diluted down to insignificant concentrations.

Nick: At least one municipal sewer authority experienced catastrophic failure. Is there anything that can be done to limit or prevent such catastrophic failures when faced with heavy rains and severe flooding?

Mr. Dickson: Proper design of wastewater treatment facilities includes protection against flooding up to some level. Often, the protection includes levees and stormwater pumping facilities to prevent the wastewater treatment facilities from flooding.

The design storm often is a 100-year storm. I have not seen an analysis of the return period for a storm like Hurricane Florence but it could be on the order of a 500-year storm or a 1,000-year storm. Some areas were reported to have received up to 40-inches of rain in a few days. Typical annual rainfall in the Carolina’s is approximately 40-inches.

Nick: What are the major public health risks associated with untreated wastewater flooding parts of North Carolina?

Mr. Dickson: Probably diarrheal diseases from drinking or coming in contact with polluted water.

Nick: What can individuals and authorities do to limit public health risks associated with wastewater?

Mr. Dickson: Get the potable water systems operating again so people have clean water to drink and bathe in.


 

Until the floodwaters recede, please be safe. Listen to local authorities and remember to help your neighbors!

 

 

addiction medicineExpert Witnesspain management

Pain and Addiction Expert Witness Comments on 72,000 Opioid Deaths in 2017

Last week, the New York Times reported CDC estimates of 72,000 opioid-related overdose deaths in the United States, in 2017. Unfortunately, a record breaking number, beating the number of deaths caused by guns, HIV, or car accidents.

Well, I wish the last time I wrote about the opioid crisis could have been the final time. It appears we are far from the end of this crisis. In fact, I began writing about this topic because it will go on for years and the litigation surrounding pharmaceutical opioids is just beginning.

Normally, I am not one to follow entertainment news. In fact, I view it is a distraction from far more important topics. Yet there I sat, just a few weeks ago, reading about the overdose of pop singer Demi Lovato. She has struggled with addiction from a young age and recently experienced a heroin induced overdose. Then last week the CDC released preliminary estimates of approximately 72,000 deaths caused by opioid overdoses, in 2017. This is a horrific plight on our nation. Chances are we all know someone impacted by this epidemic.

As I mentioned in a previous post, Experts.com has seen an incredible increase in the number of addiction medicine, substance abuse, and pain management experts marketing their services with us over the years. I started in 2010 and I’ve witnessed at least a five-fold increase in these types of experts.

The litigation against major pharmaceutical companies has also skyrocketed. In the last year we’ve seen cities, states, and counties bringing lawsuits against opioid manufacturers and distributors. The litigation against the manufacturers and distributors is encouraging if it helps stem the flow of opioid overdoses and death.

Based on this article in the New York Times, there are two reasons for the increase in opioid-related deaths: “A growing number of Americans are using opioids, and drugs are becoming more deadly. It is the second factor that most likely explains the bulk of the increased number of overdoses last year.” The article goes on to explain synthetic opioids, such as Fentanyl, is a major contributing factor to the rise in overdoses. The Times further elaborates:

“Strong synthetic opioids like fentanyl and its analogues have become mixed into black-market supplies of heroin, cocaine, methamphetamine and the class of anti-anxiety medicines known as benzodiazepines. Unlike heroin, which is derived from poppy plants, fentanyl can be manufactured in a laboratory, and it is often easier to transport because it is more concentrated. Unexpected combinations of those drugs can overwhelm even experienced drug users. In some places, the type of synthetic drugs mixed into heroin changes often, increasing the risk for users…”

High profile news stories followed by the shocking statistics from the CDC compelled me to reach out for insights from those on the front lines. Those who are treating patients with legitimate and often chronic pain, while also addressing substance abuse disorders. Dr. Adam Carinci is one such professional.

Addiction and Pain Management Expert Witness – Dr. Adam Carinci

Dr. Adam J Carinci, M.D. is a nationally recognized clinician, speaker and expert witness with over a decade of pain medicine experience. He is double-board certified in both anesthesiology and in pain medicine and maintains an active, full-time medical practice. Dr. Carinci is Chief of the Pain Management Division and Director of the Pain Treatment Center at the University of Rochester Medical Center and an Associate Professor at the University of Rochester School of Medicine.

As with previous articles, I posed a series of questions to Dr. Carinci and asked for his insights. Below are my questions and his answers.

Nick: For our readers, can you explain what constitutes a synthetic opioid?

Dr. Carinci: Synthetic opioids are man-made drugs that mimic the effects of natural opioids such as opium or heroin. Synthetic opioids act at the same opioid receptor in the body as naturally occurring opioids to induce pain relief, sedation and respiratory depression among other effects. Synthetic opioids are many times as potent as naturally occurring opioids. For example, Fentanyl is 100 times as potent as morphine (derived from opium).

Nick: Fentanyl is one of the synthetic opioids I’ve read about more in recent years. It’s mixture with heroin seems to be responsible for the increased deaths according to the New York Times. What are some legitimate medical uses for Fentanyl?

Dr. Carinci: The synthetic opioid agonist fentanyl is approximately 100 times as potent as morphine and is characterized by a rapid onset and short duration of action after a single dose. It is most commonly administered intravenously but may be given intramuscularly, transmucosally or transdermally. Fentanyl’s high lipid solubility contributes to its rapid onset because it readily crosses the blood–brain barrier. Fentanyl is used medically as a component of general anesthesia for surgery, as a sedative for procedural sedation and for chronic pain management.

Nick: Is there any data on how addiction begins?

Dr. Carinci: Addiction is a condition in which a person engages in use of a substance or in a behavior for which the rewarding effects provide a compelling incentive to repeatedly pursue the behavior despite detrimental consequences. Addiction is a biopsychosocial disorder. It is a susceptibility that is a confluence of a person’s genetics, neurobiology, psychological and social factors. Activity substances increase levels of dopamine in the brain. Dopamine is the molecular messenger of the brain’s reward center. It is what gives people the feeling of pleasure and reinforces behaviors critical for survival, such as eating, drinking and having sex. Different drugs tap into the dopamine reward system in different ways, some more potent generators of dopamine than others. There are a variety of factors that determine how addictive a drug can be, however, how rapidly each drug can get into the brain, and how powerfully it activates neural reward circuits are two critical factors. Thus, the combination of the person’s susceptibility and the potency of the drug combine to create addiction.

Nick: In your experience, what factors have led to the “opioid crisis” as we know it today? I realize this is very general, so a summary will suffice.

Dr. Carinci: The current opioid crisis has its roots in the late 1990s, where the use of prescription opioid pain relievers began to be prescribed at much greater rates. This subsequently led to widespread diversion and misuse of these medications before it became clear that these medications could indeed be highly addictive. Opioid overdose rates began to increase. In 2015, more than 33,000 Americans died as a result of an opioid overdose, including prescription opioids, heroin, and illicitly manufactured fentanyl, a powerful synthetic opioid. That same year, an estimated 2 million people in the United States suffered from substance use disorders. In 2016, synthetic opioids (primarily illegal fentanyl) passed prescription opioids as the most common drugs involved in overdose deaths in the United States. In 2016, over 42,000 drug overdose deaths involved opioids. Of those, 45.9% involved synthetic opioids.

Nick: What treatment options are available for opioid addiction?

Dr. Carinci: Medications, including buprenorphine (Suboxone®, Subutex®), methadone, and extended release naltrexone (Vivitrol®), are effective for the treatment of opioid use disorders. The most comprehensive approach should be combined medications with behavioral counseling known as Medication Assisted Treatment (MAT). Studies have shown that MAT Increases social functioning and retention in treatment.


 

There will certainly be more to come in regards to this crisis. If there are any experts you’d like me to consult regarding this topic? Any other expertise you’d like covered? If so, please leave a comment and we will continue to cover this story, both from medical and litigation perspectives.

 

 

BlockchainComputer SecurityExpert Witnesslegaltech

Blockchain Voting Election 2018: Expert Analysis of West Virginia’s Plan

This November, West Virginians deployed overseas will have the opportunity to vote via smart phone through a Blockchain-based application. Given the existing concerns of election integrity, I couldn’t help but reach out for expert analysis.

Hey, did you know that election integrity is kind of big deal? Have you been watching any number of news stations in the last few years? Our country has not stopped talking about election meddling, voter fraud, electronic voting, and wide variety of related topics, for two or more years, give or take.

If you are not aware of these concerns, you must be living under a rock. Please make room under the rock as I’d like to join you. I do my best to ignore the talking heads because I’ve found they add no value to my life (anyone else feel that way about the twenty-four hour television news cycle?).

Before I digress entirely, my point is election integrity and vote verification are legitimate concerns and imperative for the success of our democracy. As such, broadcast news covers the subject extensively.

Rarely, however, do these broadcasters address the micro-issues. This is why I choose to get my news from a variety of different publications, most of which I read online. That’s how I found this article: Experts Criticize West Virginia’s Plan for Smartphone Voting, from Ars Technica. Many of my regular readers know I appreciate the legal and policy analysis from Ars Technica. Routinely, I use it as a jumping off point for further research. The publication often acts as a catalyst for blog posts. In this case, I’d been waiting for the opportunity to discuss the Blockchain topic and get insights from expert witnesses on the subject.

The issue of a Blockchain-based application being used, to allow soldiers stationed abroad, the opportunity to vote through their smart phone was the perfect topic. Bitcoin (a Blockchain-based crytocurrency) is already being written and discussed extensively. Voting, through a Blockchain application, is getting less coverage and is therefore more interesting to me.

Much of what I’ve read about the Blockchain is hyperbolic. I’ve read on more than one occasion that “the Blockchain cannot be hacked.” On its face, that statement appears illegitimate. There is no such thing as 100% secure. So, how do we plan on safely using a smart phone app to conduct one of our country’s most sensitive civic processes?

According to the Ars Technica article, West Virginia did a limited run of the system (Voatz is the name of the app) for the primary election in May. The article further provided, “West Virginia’s secretary of state told CNN that the pilot worked well and that the system passed four audits of various parts of the system. So this November, the state is planning to offer the system more broadly to West Virginians deployed overseas.”

Naturally, I have a lot of questions about the security and reliability of the voting application offered by Voatz. So I reached out to one of our computer science experts who has studied the Blockchain and recently published articles on the topic.

Computer Science and Systems Expert Witness – Dr. Stephen Castell

Dr. Stephen Castell is a computer science and systems expert witness with over 30 years of experience. As an expert witness, Dr. Castell has acted in over 100 major cases including the largest and longest computer software actions to have come to trial in the English High Court. Most recently, Dr. Castell contributed to the 200th issue of Computer Law and Security Review (CLSR), with his paper titled, “The Future Decisions of RoboJudge HHJ Arthur Ian Blockchain: Dread, Delight or Derision?Find out more about Dr. Castell by visiting his website: www.castellconsulting.com.

I’ve been working with Dr. Castell for more than eight years. We always have delightful conversations and “geek out” together over emerging technologies. Our recent conversations have, of course, covered the rapidly changing legal technology space.

Here are the questions I posed and the answers provided by Dr. Castell:

Nick: Can you describe Blockchain technology for the lay reader?

Dr. Castell: In its elemental form, a Blockchain is simply a decentralized database system – digital ledgers that store transaction data, distributed across many nodes.  It has a linked list data structure, with each block (an aggregated set of data) containing a ‘hash’ of the previous block.  Each block is formed by a ‘proof-of-work algorithm’, through which consensus of this distributed system is obtained via the longest possible chain.  A ‘traded’ cryptocurrency Blockchain (e.g. Bitcoin) is a shared public chain: in principle everyone has access to the chain, not only to read the information on the chain, but also to append new blocks on the chain.  This is known as an unpermissioned chain.  The West Virginia voting application is likely to be a permissioned chain, where, through public key cryptography, access control can be implemented during setting up of the chain so that differentiated access can apply – both voters and those managing and controlling the voting process can differentially record, and/or interrogate, votes and voting data added to its Blockchain.

Nick: Is a Blockchain-based voting system secure?

Dr. Castell: The Blockchain in and of itself provides strong cryptographic security.  However, ICT expert professionals bear in mind that not only are there no finalised international standards for Blockchain (eight  standards are in development under ISO/TC 307), but also there is far more to specifying, designing, developing, testing, deploying and maintaining an appropriate complete QA’d application than just the Blockchain element.  The security of the complete system needs to be addressed and designed-in from the start, irrespective of the use case for the Blockchain.  And whether to use a Blockchain as a component at all for a given business requirement such as public elections is a critical initial feasibility exercise that the expert knows is essential, as much from a security perspective as any other.

Nick: We know that electronic voting systems are vulnerable to hacking. Can Blockchain-based voting systems also be hacked?

Dr. Castell: Anything can be hacked, and electronic voting systems are no different.  Back in the late 1980s, I carried out a major definitive study, commissioned by the British H M Treasury, on the admissibility of computer evidence in court and the legal reliability/security of IT systems (The APPEAL Report, 1990, May, Eclipse Publications, ISBN 1-870771-03-6).  This concluded with what became known as my ‘First Dictum’:  “You cannot secure an ontologically unreliable technology by use of an ontologically unreliable technology”.  Nothing has changed.  Commercial computer hardware and operating systems, including smartphones, remain essentially ‘open’, and ontologically unreliable.

Nick: Is it the Blockchain that could be compromised or is it more likely a voter’s smartphone would be compromised by a hacker?

Dr. Castell: A well-engineered and implemented Blockchain distributed voting ledger should itself be as immune to compromise as its cryptography can provide.  But the voter’s smart phone security, and the overall voting application, are only as sound as whatever has been designed-in to the whole system – and we know that smartphones have for sure in the past been hacked.  It is not clear that the proposed West Virginia smartphone application would be any more (or less) hackable than anything else hitherto.

Nick: What sort of checks and balances would you expect for a Blockchain-based voting system before implementation?

Dr. Castell: It would seem an obvious (constitutional?) requirement that votes must always be manually-countable in any US election, in the event of suspected error or lack of trust in the reported result, whether through suspected deliberate tampering or compromise, accident or incident, random system malfunction, or whatever else, and particularly if the result is legally challenged in court.  Any smart phone app voting system must therefore always be designed so that its operation, and the voting data recorded, are auditable for integrity, accuracy and reliability ‘by hand’ – that is surely the most basic check and balance.

Lawyer Jonathan Bolls is a Magistrate, and Chief Election Officer, in Fairfax County, Virginia, who had personal experience of the consequences of unreliable computer systems, as a past victim of technical problems saving Bar Exam essays using suspect software provided by the Virginia Board of Bar Examiners (I provided expert opinion on his behalf – see http://jonathanbolls.blogspot.com/).  He notes that US citizens are passionate about the integrity of elections:  “For Blockchain technology, where someone is voting on their phone from overseas, they would want to consider that in doing so they potentially waive their rights to have their vote counted should a re-count be necessary.  We have actually gone the other way: removed our high-tech touchscreen voting systems and returned to the paper ballot.  If ever we need to check voting numbers we hand count”.

Aside from manual auditability, before implementation it is vital that ‘Proof of Concept’ projects be thoroughly executed, carefully trialing any proposed smartphone public voting system, prior to actual ‘go live’ for real.  Such Pilot Trials or Proving Systems are essential, with their scale, planning, operation, data and results, and assessment thereof, monitored and carried out by independent experts.

Nick: In your expert opinion, would you trust a Blockchain-based voting system to accurately register votes?

Dr. Castell: Deliberate hacking or compromise apart, there is no reason why a well-engineered and implemented Blockchain-based voting system, with careful professional expert involvement in its design and trialing before go-live, should not accurately register votes.  However, I do not consider that a so-called ‘trustless’ Blockchain-based voting system removes the need for a Trusted Third Party legally responsible for its operation and security.  ‘Who you gonna sue when it goes wrong?’ is still an essential consideration, and the Blockchain itself, nothing magical, ‘just another computer system’, cannot be sued.

See:

  • https://authors.elsevier.com/a/1XSpq_654J6Hkp  ‘The future decisions of RoboJudge HHJ Arthur Ian Blockchain: Dread, delight or derision?’, Stephen Castell, Computer Law & Security Review, Volume 34, Issue 4, August 2018, Pages 739-753.
  • Commission of the European Community. Green paper on the security of information systems, ver. 4.2.1, 1994.
  • S. Castell, Code of practice and management guidelines for trusted third party services, INFOSEC Project Report S2101/02, 1993.

Conclusion:

What are your thoughts? Would you trust a smart phone, Blockchain-based voting application? Please share your comments below!

UPDATE (08/16/2018):

Our friends over at the Robinette Legal Group, located in Morgantown, West Virginia, wrote a complementary piece to this blog. The author of the piece, Terri Robinette, did an exceptional job elaborating on prior “uses” of Blockchain in Sierra Leone and describing how West Virginia is legitimately the first to truly test this technology. She further described election security and fraud in West Virginia. Take a look at her article below:

Smartphone Voting App for Deployed West Virginia Military

Allergy-ImmunologyExpert WitnessWildfires

Wildfire Smoke: Allergy, Dermatology, and Respiratory Expert Suggestions

With wildfires raging across California, smoke, pollutants and allergens are filling our skies. Impacting not only those in the immediate vicinity of fires, but people throughout the state.

As many of our friends, colleagues, and readers are aware, the Experts.com corporate office is situated in Stockton, California. We are in the heart of the Central Valley and a safe distance from the roaring wildfires. However, we are surrounded by these fires and the airborne pollutants they are emitting.

The Mendocino Complex Fire (now determined to be the largest wildfire in California history) is occurring approximately 200 miles to the Northwest of our office. Those westerly winds, however, are blowing the smoke directly through the Central Valley.

The valley is known for terrible allergens, due in large part, to our amazing agricultural industry (responsible for producing somewhere in the neighborhood of 33-50% of the nation’s produce, depending on your data source). What we have been experiencing in the last couple of weeks is, for lack of a better phrase, a perfect storm of allergens and pollutants.

Stockton, and the Central Valley, are not alone. Smoke from the 19 (at the time of this writing) active wildfires in the state, are contributing to all kinds of allergy, respiratory distress and illness for Californians. As smoke does not recognize border lines, the smoke is impacting people across the West.

Here is what I know from personal experience. Children and older adults are most at risk from the airborne pollutants and allergies. Outdoor activities for these individuals should be minimal. The same goes for pets. Those afflicted with allergies or compromised respiratory systems should also minimize outdoor activity. You should also check your air quality daily. If you’re in California, here’s where to check: www.airnow.gov.

smoke-1-.png

Here is a quick look of the haze around our office. Skies are normally bright blue.

smoke-2.png

Here is the sun trying to peak through the smoke. This is an improvement over yesterday.

 

Beyond the above, I cannot tell you much more. I have been choosing to limit my outdoor activity and that of my dog because she has significant allergies and respiratory health problems. She’s also elderly. To better elaborate on fire related exposures, including allergies and respiratory impacts, I have reached out to one of our expert witnesses.

Allergy, Immunology and Dermatology Expert Witness – Dr. Ernest Charlesworth

Ernest N. Charlesworth, MD, is a Diplomate of the American Board of Dermatology, the American Board of Internal Medicine, American Board of Allergy & Immunology, and the American Board of Diagnostic Laboratory Immunology. He has over 40 years of experience in his field of expertise. He is one of only a few United States physicians who is board certified in both Allergy / Immunology and Dermatology.

Dr. Charlesworth specializes in respiratory diseases, Asthma, immunologic and allergic disorders, Allergic Pulmonary Disease, and more. He is located in Bronte, Texas. You can learn more about his expertise here. Below are my questions and Dr. Charlesworth’s answers.

Nick: What are the most common smoke-related allergic reactions?

Dr. Charlesworth: Smoke is a pulmonary irritant, even to healthy lungs, but for individuals with allergic asthma and chronic obstructive pulmonary disease, it has the potential to be life-threatening. Not only is the smoke an irritant, it may also contain allergic particles ranging from the oil in poison ivy (& poison sumac) to grass, weed, & tree pollen. The inflammation induced by smoke and pollutants release a cascade of inflammatory chemicals called cytokines. These cytokines augment and intensity of the allergic response.

Nick: Do allergy medications help at all when dealing with fire/smoke related exposure?

Dr. Charlesworth: Yes, individuals with inhalant allergies & asthma they will experience an increased need for using their “rescue” inhalers.   The rescue inhaler contains a bronchodilator (usually albuterol) that helps to relax the smooth muscle that surround the bronchi, thus allowing an increase in the ease of air flow in the lungs.  It is equally important that those with allergic asthma use their “control” medication which usually contain an anti-inflammatory steroid.  One of the problems with smoke inhalation is that it increases the inflammation in an already inflamed & irritable airway. This additional inflammation has the potential to push even a well controlled asthmatic patient over the edge and require urgent intervention in the setting of a hospital emergency department.

Nick: Personally, I fight allergies all year, but with the smoke-filled air, they seem to be worse. Is that just a result of greater airborne pollutants?

Dr. Charlesworth: The simple answer is, yes.  The irritants in environmental smoke “prime” the lungs & mucous membranes resulting in an exaggerated response to their allergies.

Nick: For those with respiratory illnesses, who are in smoky areas of California, what can they do to limit further damage to their compromised systems?

Dr. Charlesworth: The first step is to recognize that they are at much greater risk than the non-allergic population.  This includes having an action plan that stresses regular use of their prescribed allergy medications.  It’s also important to recognize the control inhalers should not be used for immediate relief.  Finally, lungs require moisture & humidity to function in a healthy manner.   Dry smoke-filled air will dehydrate the mucous membranes.  Accordingly, the use of room humidifiers can be of immense help. In addition, they should have an evacuation plan, even in the absence of general evacuation orders.  The use of filtration masks are recommended when outdoors and when indoors the air conditioning filters need to be changed.

Nick: Aside from staying indoors, what other items would you suggest for those currently exposed to California wildfire smoke?

Dr. Charlesworth: See above.  A plan for early evacuation to outside the atmospheric area affected by the smoke & fire may be the most important.  This might be a good time to take a vacation and visit family outside the affected area.

Nick: Please share any other information you think is appropriate for those exposed to smoke and other pollutants from wildfires…

Dr. Charlesworth: For those allergic to poison ivy, oak, & sumac there is a real danger that allergic oils aerosolized can cause not only respiratory but also an allergic contact dermatitis to exposed skin.  For this reason, I would recommend long sleeves and staying indoors.  If outside exposure is unavoidable, the use of a thin application of a petroleum cream (such as Vasoline) may be helpful.  Lastly, one should remember that most antihistamines  have a side effect of drying out the mucous membranes which will have a deleterious effect on those allergic individuals exposed to smoke.  This particularly true for diphenhydramine (Benadryl) and less so with loratidine and cetirizine.  There are also late complications that include an increased vulnerability to secondary infection of both the lungs and the sinuses.  For protection of the sinuses, I recommend irrigation with dilute salt water a couple of times each day.

Conclusion

The last two blog posts have been entirely inspired by the events taking place in California. The goal is to provide some information beneficial to our sisters and brothers in the state.

Stay healthy!

 

 

Expert WitnessInsuranceWildfires

California Wildfires: Property Damage & Restoration Expert Witness Insights

As of this writing, the Carr Fire in Redding, is considered the seventh most destructive wildfire in California history. It is just one of 17 active wildfires in the state.

In the past week, California has witnessed an intense round of wildfires. As I sit safely in my office reading the news about those being evacuated, or worse, I cannot help but empathize. The wildfires last Fall had the same impact on me. In fact, the concern for others dealing with disaster compelled me to write this piece last year. It covers topics  of evidence collection and insurance policy review, in the aftermath of a California wildfire. The only goal was to provide useful information to those impacted.

The same compulsion to provide helpful information is felt today. Smoke in the Central Valley has been an awful, constant reminder, that many are losing their homes, businesses, and lives. Just 200 miles North of our office, citizens of Redding California are experiencing the Carr Fire. Yesterday, according to USA Today, the Carr Fire was claimed to be the “seventh most destructive” fire in California history. Here is some further information about the Carr Fire from USA Today:

“Firefighters from 16 states are aiding the effort. The state Department of Forestry and Fire Protection – Cal Fire – reported promising headway Tuesday on the most devastating of the blazes: the Carr Fire in and around this city of 92,000. The death toll here is six, including two firefighters. More than 170 square miles have burned and almost 900 homes destroyed, making it the seventh-most destructive fire in state history.

While 10,000 people were allowed to return to their homes Monday, more than 25,000 people remain evacuated. And the fire was only 27 percent contained.”

According to the Cal Fire fire map, there are 17 active wildfires in California at the time of this writing. That number does not include contained fires. Firefighters throughout the state have a massive job ahead. Also, the last time I wrote about California wildfires was December, 2017, which means fire season has just begun.

These annual wildfires take an extensive toll on California. There is the emotional cost for those who lose homes, businesses, and loved ones. Before the grief subsides, individuals and families have to start putting their lives back together, and this involves significant time and financial costs. Many have to work with insurance companies and government agencies in order to rebuild their homes and businesses.

An article this morning, from the Sacramento Bee, indicated the Carr Fire destroyed “1,236 structures and damaged 225 more.” Additionally, “2,546 structures are threatened.”

I do not pretend to have answers for those dealing with catastrophic losses. What I have is a giant database of experts with whom I can consult and hopefully provide valuable information for those in a difficult position.

Seeing the number of structures destroyed, damaged, and threatened, I reached out to one of our property damage and restoration experts.

Brian Spiegel – Property Damage and Restoration Expert Witness

Brian Spiegel, of Spiegel Property Damage Consulting and Forensics, is a licensed general contractor and expert witness in property damage and restoration. He is a Master Fire & Smoke Restorer and a Certified Fire & Smoke Damage Consultant. Mr. Spiegel and his firm have addressed the aftermath of wildfires in Arizona, California, and Nevada. He has been in the property damage and restoration business for more than 40 years. You can learn more about his practice by visiting his website: spiegelexpertservices.com.

As in past publications, I have provided Mr. Spiegel with a variety of questions. Below, you’ll find the questions and Mr. Spiegel’s answers.

Nick: For those fire-damaged structures, what are the most common types of damage?

Mr. Spiegel: There are many specialized procedures for wildfire damages inside the home and outside the home. Roof damage, damaged / burned structure, electronics, all the personal contents. An engineer may be required for structural repairs. An experienced restoration contractor to evaluate what is salvageable and what is not for both structure and contents. Replacement costs; structure, painting, flooring, cabinets, landscaping, etc.

Nick: Is there a particular restoration process for structures that are damaged from a wildfire?

Mr. Spiegel: Generally speaking, wildfires can cause a variety of damages depending on the homes or commercial buildings that are in close proximity to the wildfire. Structures very close to the wildfire can burn to the ground with everything in them. Other structures will have partial burns and suffer from the smoke ash and toxic chemical residues to both the interior and exterior structure, hardscape, landscaping swimming pool and automobiles.

Other homes, miles away, can suffer from all the airborne contaminates created by the vegetation, trees, brush, etc. As well as the toxic chemicals and smoke contaminates caused by burning homes and automobiles. Smoke particulates will attach to airborne pollution particulates that were in the air previous to the fire. Wildfires produce heavy winds that also put a lot of dirt and dust into the smoke mix. I have been involved in wildfires that produced large airborne burning embers (projectiles) that will hit a roof far from the actual fire and take a house to the ground in about thirty minutes. You often see homes completely burned down and many other homes around the house that were not burned to the ground, however, the surrounding homes are impacted by all the airborne particles and will require diligent specialized restorative cleaning by restoration companies that specialize in this work.

Nick: Does a property owner have to hire a restoration company, or is that done through insurance?

Mr. Spiegel: The property owner has the right to choose whoever they want to perform the work on their home and contents. The property owner should seek an expert company to assess their damages and prepare a cost damage estimate, that expert should detail what the cost will be to return the structure and property to pre-damaged condition. This is not work the insured can do themselves or hire a maid service to do. It requires specialized equipment and expertise.

Nick: For those destroyed structures, what is the post-fire process before a property-owner is able to rebuild?

Mr. Spiegel: Obviously the insured should immediately report a claim to their insurance company. The property owner should photograph all the damage to document their damages and the impact to their neighborhood. The insured should seek a licensed contractor with fire damage experience that can determine what may or may not be salvageable.

The contractor will have to determine what the house and building materials looked like previously. This will include what the interior structure was comprised of, as the goal is to return to the home to its pre-damaged condition or establish that monetary value. The insured can help with those descriptions and if any photos are available. Often property owners try to clean themselves and do all the wrong things, such as not using HEPA filtered equipment. There are many wrong things that property owners attempt to do themselves which will make things worse.

Nick: Do you have any suggestions for those with a wildfire destroyed structure?

Mr. Spiegel: Insured should find and expert in these kind of damages as this is not just simple cleaning work. In looking for a restoration contractor find a licensed contractor with certifications and experience relating to this kind of damage. Specialized restorative cleaning requires an experienced expert and specialized equipment.

Nick: Do you have any suggestions for those impacted a by a wildfire, regarding dealing with their insurance company?

Mr. Spiegel: Again, thoroughly photograph and document all the damage to everything inside and outside the home or building.

Nick: Is there anything else the public should know? Feel free to elaborate…

Mr. Spiegel: Make sure you understand the totality of your damages. Make sure to check the credentials and experience level of people and companies rendering opinions regarding all of your property. If you receive an estimate of cost repairs from your insurance company adjuster it would be prudent for you to investigate the scope and method’s the adjuster prepared.


After answering the questions I provided. Mr. Spiegel went on to elaborate on a few additional concerns. He added a bold text to his additional information and I have provided it in full below:

IT IS IMPORTANT TO UNDERSTAND THE FOLLOWING

Dangerous emissions come from wildfires; wildfires are a conglomeration of a complex mixture of particles, liquids and gases a number of atmospheric pollutants, dirt and dust. Air pollutants in the air prior to the wildfire such as diesel & auto exhaust particles etc. which agglomerate into wildfire smoke particulate adding to the mixture that impacts homes in the path of wildfire smoke.

The smoke is comprised of particles, liquids, gases, polynuclear aromatic hydrocarbons (PAHs are carcinogenic) volatile organic compounds (VOCs)

Wildfire smoke is the worst airborne pollutant, even beyond fossil fuel emissions. Wildfires cause much particulate matter (PM) to enter homes than normal pollution. Wildfire residue can cause more air pollution in two days than an entire year of normal airborne pollution sources.


 

I hope this information is helpful to those dealing with active wildfires and the eventual aftermath. Stay safe!

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.

 

 

 

 

 

 

AutomotiveEngineeringExpert Witness

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…