Category: Expert Witness

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Laurel v. Yanny: An Audio Forensics Expert Witness Scientifically Settles the Dispute

On Tuesday of this week, the Internet erupted in a dispute over an audio recording of a word. Or, maybe two words. Nobody knows because nobody can agree. I know what you’re thinking, “We’re so glad Nick decided to write about a viral Internet sensation that we’re already tired of hearing about.” I feel your sarcasm and I reject it. The confusion over the word got me thinking we may be unable to trust our ears. If we cannot trust our hearing, what impact might that have on recorded evidence presented at trial? Or, in a less formal matter (disagreements with a loved one)?

CLICK HEAR FOR THE RECORDING

The New York Times did a good job of addressing the Laurel v. Yanny dispute in this article. They created a tool that allowed readers to change the frequency of the audio recording. Move the arrow all the way to the left and your clearly hear the word “Laurel.” Move it all the way to the right and you hear “Yanny.” Regardless of where the arrow was stationed, disagreement exists.

Don’t worry, I did some research for this article. Using a non-scientific methodology, which is definitely NOT generally accepted in the audio forensics community, I came to some totally unreliable conclusions. Asking friends, family, and coworkers what they heard on the recording, I came to some interesting conclusions. More women heard Yanny and more men heard Laurel. I’m certain the margin of error is enormous and I can’t recall if I asked an even number of men and women. It also appears to be some different interpretations based on age. Then of course, some people heard different words, at different times, on different devices. This really caused problems for my non-scientific research. I heard Laurel one day on one device and Yanny another day on another device.

Naturally, all of this made me wonder how we can trust our hearing? How is evidence reliable? What about witness testimony about what was heard? Of course, I also wondered if science could settle the dispute?

Is testimony about what was heard as unreliable as eyewitness identification testimony?

Eyewitness identification used to be considered incredibly strong evidence. In fact, in some US jurisdictions, it is still compelling evidence. From my experience working with expert witnesses and following the science with some interest for the last eight years, I can tell you that eyewitness identification evidence is terribly unreliable. It is frightening how often it is wrong. There are so many variables which can impact the judgement, perceptions, and memories of an eyewitness, that I would not trust it (without some strong corroborating evidence).

So, I wonder if the hearing of an eyewitness is similarly compromised? How do I know if a witness heard three or five gun shots? How do we know the witness heard one collision or two? What about business negotiations? Are we certain we’re all hearing the same thing and agreeing to the same terms being memorialized in the contract?

Typically, I am more inclined to believe recorded evidence because I am biased against eyewitness testimony from the scientific studies I’ve read. Or, should I say, I was more inclined to believe recorded evidence.

After the Laurel/Yanny dispute, I wondered if recorded audio evidence is reliable? If I can hear one thing and others hear something totally different, how can we rely on a recording? For insights on this phenomena, I’ve reached out to an audio forensics expert.

Herbert Joe – Forensic Audio Video Analysis Expert Witness

Herbert Joe is a highly qualified and board certified forensic audio and video examiner. He has three science degrees and two law degrees. He and his partner have been retained in thousands of criminal, civil, and administrative cases throughout the US and internationally. Mr. Joe has worked on many high-profile matters including the Branch Davidian case, State of Florida vs. George Zimmerman; the Associated Press (Osama bin Laden); consultations with Dr. Phil (Manti Teo), CSI: Miami, TMZ (Michael Jackson), the Wall Street Journal, and People Magazine (Mel Gibson). You can learn more about Mr. Joe by visiting his website: forensicscenter.com.

As I normally do for blogs, I posed several questions to Mr. Joe. Please see my questions and his answers below:

Nick: Some listeners hear Laurel and others hear Yanny. Is this a result of the recording or the listener’s hearing?

Mr. Joe: What one hears has a large subjective component, and even then the same listener may hear it differently over time, depending on a host dynamic factors. For examples, what one perceives to hear may depend largely on the mood or emotive state of that person at that time; what one perceives to hear may depend largely on what s/he is expecting or anticipating to hear; what one perceives to hear may depend largely on one’s hearing ability. Clearly, there are many other factors to determine and affect what one hears, what one interprets and what one recalls, all of which may change over time for that person, and may be very different from what another person perceives to hear.

This only scratches the surface of the area of psychoacoustics, speech production and speech perception.

Nick: Is there a correct answer to Laurel or Yanny?

Mr. Joe: Hate to sound like an attorney – as I am one – but the answer to that question depends, depends on how you phrase that question. Is there a correct answer to what one hears? Yes, it’s what one perceives. But if one clearly enunciates either name/word, then there is an objectively correct answer, namely (sorry for the pun), the word that was spoken or played back – regardless of how it was heard, if at all, by the listener(s).

Consider this analogy with light. We know that our eyes are sensitive to light within the (narrow) visible light spectrum, a small part of the entire electromagnetic spectrum. So let’s take a red apple. Sunlight or white light is made up of all the different color lights that we know of, as we learned in school – ROY G BIZ, red, orange, yellow, blue, green, indigo and violet. But that apple is red, whether we perceive it that way or not. It’s red because the skin of that apple absorbs all the colors of the incoming white light except red, which is reflected and that’s why we see red. (If we shine a pure red light on that apple and no other light is present in a closed room, then that apple will not appear because all the red light is absorbed, and since there is no other light frequency to reflect, then there is no light to perceive, i.e., it appears black.

Likewise, sound is merely vibrations of air that propagates from the source (through the air or another medium) and can be heard when they reach a person’s or animal’s ear. That’s the objective part – the frequencies at whatever intensities at any given moment. It’s there whether we can appreciate them or not.

Nick: Is there a way to determine the correct answer?

Mr. Joe: There is a correct answer if the question is whether there are linguistic and acoustic differences between the spoken words “Laurel” or “Yanny.” See answer to question #5, below.

Nick: If listeners are hearing different words, how can recorded evidence be trusted?

Mr. Joe: For the past 31 years, my partner and I have been forensically analyzing audio, acoustic, voice and video evidence in state and Federal courts, in civil, criminal and administrative cases throughout the U.S., as well as many foreign countries. Recorded evidence must be subjected to admissibility standards to be admitted, and the subject to analyses and opinions that go to the weight of the evidence. If the proponent of the audio (or acoustic, voice or video) evidence can provide facts sufficient to support a reasonable jury determination that the recording is an accurate reproduction of the event that it purports to record. Where we often get retained is to show and testify, objectively and with a reasonable degree of scientific certainty, that the recording has been falsified or tampered with in one way or another to render the recording untrustworthy as a whole. Now if the case comes down to an interpretation or dispute of what was said in some recording, we can enhance (digital signal processing) the passage(s) of interest, allow the jurors to hear the enhanced audio (with good quality headphones), provide a reasonably accurate transcript and provide expert testimony thereof. However, the other side can also have their transcript version of the recording, and it is up to the jury to ultimately decide what the recorded evidence says or not say.

Nick: If the Laurel/Yanny recording was presented as evidence at trial, what analysis would you use to prove one word or the other?

Mr. Joe: We had a case in which the entire felony indictment centered on a single, mono-syllabic word. The Government contended that the Defendant said “Shoot the [expletive]!” The Defendant claimed that he said “Shoot me, [expletive]!” The Government contended the former exclamation underscored intent and contentment that an officer was killed. The defense contended that the latter showed his remorse. So, we had to objectively differentiate between the /th/ sound and the /m/ sound with a reasonable degree of scientific certainty – regardless of what perceives to hear. The /th/ sound is known as a fricative because the tip of the tongue is placed just behind the two front (central) incisors to create friction in producing the /th/ sound. The /m/ sound is known as a nasal sound since air bypasses the oral cavity because the lips are closed (and the soft palate drops) and thus passes out through the nasal passages. After enhancing the audio evidence, spectral analyses revealed the 2nd word had higher frequency energy (“the”, as opposed to lower frequency energy, which would indicate the nasal sound /m/); so, that 2nd word was “me” and not “the.” The case was dismissed upon our testimony.

Likewise, phonetically, Laurel begins with the letter “L,” whereas Yanny begins with the letter “Y.” Although the letter “Y” (a/k/a a semivowel) can represent a vowel or a consonant, it is used as a consonant in “Yanny.” Therefore, on the one hand, there are common phonetic features of the consonants “L” and “Y,” e.g., they are both voiced consonants produced by directing air solely with the lungs and diaphragm and actively narrowing the vocal tract upon articulation. In making either of these sounds, air only leaves through the mouth. On the other hand, there is a substantial phonetic difference between these 2 letters. The letter “L” is a “lateral” consonant, as it is made by directing the airstream around the sides of the tongue upon articulation; the letter “Y” is a “central” consonant, because it is made by directing the airstream along the center of the tongue upon articulation.

One can “see” this substantial difference in the raw waveform, as well as the same waveform viewed as a 3-dimensional spectrogram. Below is the waveform of my enunciating “Laurel,” and then “Yanny.” Below that is a spectrogram of the exact same recording. And one certainly should be able to hear and perceive the difference if the sound source is accurate in the enunciation of each.

laurel-yanny-graph-1.PNG

laurel-yanny-graph-2.PNG

Nick: The Laurel/Yanny recording is of a robotic voice. Are human voices less susceptible to this type of misinterpretation?

Mr. Joe: First, I’m not sure if I agree with the premise. Human voices naturally have varying degrees of emotions manifested by simultaneous changes in pitch, resonance, fluency, intonation, prosody and duration of the words and speech segments. In contrast, computer-generated, synthetic or robotic speech utilizes an algorithm that translates orthographic strings of letters into the robotic voice; however, synthetic voice is audibly missing emotive components, like the natural variations in pitch, level, and intonation.

But it’s not so much misinterpretation, as it is how the brain perceives the difference: human speech requires little effort by our auditory cortex when perceived; however, synthetic or robotic speech requires more effort when listened to. Without the emotive components in human speech, robotic speech has fewer cues to help our brains with identifying phonemes.

Nick: Do different interpretations of the Laurel/Yanny recording cast doubt on what a witness claims to have heard (ex. witness to a crime, collision, conversation)?

Mr. Joe: This question opens up a whole different Pandora’s Box. Earwitness identification, recall and the like has little to do with synthesized voices (unless of course the subject matter has to do with a synthesized voice). What one hears and perceives at the time of some acoustic event and recalls at a later time is subject to so many factors, e.g., one’s mental state at the time, how traumatic that acoustic event is, etc.

We had a case in which the reliability or trustworthiness of a witness recalling an auditory event years later was at issue. There are generally accepted academic, clinical and forensic studies in the areas of the reliability of earwitness identification. For examples, it is well-established that there is a temporal decay of memory for voices. In one study, after 2 weeks of hearing one’s voice but never seeing that person, reliability is only 68% correct, 35% correct after 3 months and only 13% correct after 5 months (less than a chance guess). The majority of forensically relevant encounters with unknown voices may well occur before the listener forms an intent to memorize.

Nick: We have no context for the Laurel/Yanny recording. Simply two words. Does context play a role in the analysis of a disputed recording? For example, a recording of a business agreement or a family law dispute.

Mr. Joe: Absolutely! Let’s take an example of the phrase “I’m going to kill you.” If that phrase appeared in a transcript with no other context, then 10 different readers may have ten different interpretations (20 if the readers are attorneys, but I digress). If that phrase was spoken in no other context and heard by someone, the emotionality and therefore the intent of that phrase alone may be revealed. If said sarcastically and sassily, then one would likely interpret that phrase without any real concerns. On the other hand, if that phrase was spoken and heard with sheer anger, then one would likely interpret that phrase with much concerns. If that phrase was in the broader context of 2 boxers, for example, being interviewed the night before their championship fight, then the meaning of that phrase is materially different than the same phrase spoken in context of 2 people viciously fighting. Clearly, one can see the context of a word or phrase can make all the difference in what was objectively meant, especially in contrast to a naked phrase with no context and completely subject to interpretation.

And another relevant issue here is the concept of top-down thinking in the context of speech perception. One can unintentionally or purposefully make someone subconsciously biased as to what s/he “should” hear in an anticipated audio recording; likewise, one’s own life experiences color what you think you hear or should hear. Stated another way, it may be equally remarkable if a study using the same “Laurel/Yanny” audio clip, the listener was asked what they hear without mentioning either or any name or word.

By the way, for the applicable analyses as described above, and given my 31 years of experience in critical listening of audio and acoustic evidence, and without any bias or top down thinking, it is clear to me that the word from the May 16, 2018 NYTimes article that the word generated is “Laurel.”


 

There you have it, folks! Laurel is the word that has baffled the Internet for the last three days. I want to extend a huge thank you to Herbert Joe of Yonovitz & Joe, LLP, for his exquisite scientific analysis of the Laurel/Yanny audio clip. What mystery will the Internet provide next? Only time will tell. When there is a mystery to solve, you can get your forensic scientific answers on this blog! Naturally, you’ll get some non-scientific analysis from yours truly.

 

 

Criminal LawExpert WitnessForensic Psychiatry

Golden State Killer, Part 2: Forensic Psychiatry and the Rapist and Serial Killer

As readers of Part 1 are aware, I’m following this case closely due to the connection to our local community. If you are anything like me, you wonder how someone could allegedly commit so many heinous crimes? Then, after a decade of committing dozens of rapes and multiple murders, the suspect ends his reign of terror (at least as far as we know).

What We Know:

From 1976 to 1986, a violent criminal struck fear throughout the State of California. Twelve murders, 45 or more rapes, and more than 100 hundred residential burglaries are attributed to one man. Authorities have indicated the suspect was meticulous in the planning of his crimes, which started as burglaries and escalated into violent offenses.

The crime spree spanned Northern and Southern California, including Sacramento, San Joaquin, Orange, Ventura, and Contra Costa Counties. The suspect was known by many names, such as Visalia Ransacker, Diamond Knot Killer, Original Night Stalker, East Area Rapist, and more recently the Golden State Killer. It wasn’t until a couple of years ago that DNA evidence connected the dots of all the crimes and detectives realized the crimes were committed by the same individual.

An arrest was made in late April. After using an innovative investigative technique (submitting a DNA profile to a free online ancestry database), detectives identified James Joseph DeAngelo, Jr., a former police officer and mechanic living in Citrus Heights, California.

What Makes Someone Commit Such Crimes?

Violent crimes are difficult for most of us to understand. Certainly we’ve all had emotional moments that could have resulted in a terrible decision had we lost self-control or been otherwise unbalanced. Although I don’t condone violence, I’ll admit reading about crimes where the violent result was understandable. Not acceptable, but understandable. For example, a parent acting violently towards someone who harmed his or her child is the type of violent behavior I can understand.

How do we reconcile vengeful, “loss of control,” or “heat of passion,” violence with violence that seems to be done for pleasure? Why does an offender experience joy from inflicting pain and fear upon a victim? What causes a person to lead a life of rape and murder?

There are so many questions on this topic. Does a lack of understanding make us more fearful? Does the human condition require a rational explanation for irrational acts we cannot fathom?

A little information before we continue:

For this portion of our series on the Golden State Killer, I sought input from a forensic psychiatry expert witness. Part 3 of this series will include input from one or more forensic psychologists.

It is important for readers to understand the difference between psychiatry and psychology. Allow me to differentiate between the two. For any psychologists and psychiatrists reading this post, I apologize for the very simplified descriptions of your professions, but we’ve had lawyers contact us looking for an expert, unaware of the distinction.

A psychiatrist is a medical doctor (MD, DO) capable of prescribing medications to address mental, emotional, and behavioral disorders. They generally focus on diagnosis and treatment. A psychologist is not a medical doctor. Psychology-based doctoral degrees are usually Ph.D or Psy.D. They generally are unable to prescribe medication and focus more on helping patients to effectively cope with mental, emotional, or behavioral disorders via psychotherapy (non-medical treatment). Again, this is an oversimplification of two highly complex professions.

Today, we will be addressing the Golden State Killer with some input from Experts.com member and forensic psychiatry expert, Dr. Stephen M. Raffle.

Stephen M. Raffle, MD – Forensic Psychiatry Expert Witness:

Dr. Stephen Raffle is double board-certified in Psychiatry and Forensic Psychiatry. He has over 40 years of experience as a clinical and forensic psychiatrist offering his expert opinion in federal and state jurisdictions nationwide. Dr. Raffle has conducted over 5,000 psychiatric assessments in his career and was a professor of psychiatry at UCSF Medical Center for 20 years. You can learn more about Dr. Raffle by visiting his website: psychiatristexpertwitness.com.

Nick: Are there common psychological attributes among serial killers?

Dr. Raffle: A common feature is a lack of empathy with victims. Most serial killers ​(with few exceptions) understand they are committing a crime because they take care not to be caught. Antisocial Personality Disorder and Borderline Personality Disorder commonly are present. Sadomasochism is also a common feature. Depending on the shared characteristics of the victims, the serial killer may have problems with impotence, paranoia, or sexual perversions which cannot otherwise be satisfied. Paranoid Schizophrenia is a common psychiatric disorder but not universal. A diagnosis of paranoid schizophrenia, in and of itself, does not necessarily justify a finding of insanity, because “insanity” is a legal construct, not a psychiatric diagnosis.

Nick: If so, what types of psychological attributes are common among serial killers?

Dr. Raffle: Refer to my response in No. 1 above. In addition, the psychiatric disorders, as diagnostic entities, may include:  ​Sadomasochistic Personality Disorder, Necrophilia, Paranoid Schizophrenia, Borderline Personality Disorder, Antisocial Personality Disorder, or other psychotic disorders.

Nick: Does a serial rapist or serial killer experience joy or pleasure from tormenting and harming their victims?

Dr. Raffle: Yes.

Nick: If so, why is it they experience joy or pleasure from inflicting pain or committing murder?

Dr. Raffle: In each instance, the torture is combined with sexual arousal (which is commonly not acknowledged by the perpetrator), leading to an emotional discharge, often overtly sexual in nature​ upon the death of the victim. Following the murder, serial killers have recurrent fantasies about various aspects of the ritual associated with the killing, which brings satisfaction. Over time, the recurrent fantasies become progressively less satisfying, (i.e., “old news”) resulting in a need for new fantasy material. Hence, the serial nature of the murders.

Nick: Can forensic psychiatry explain how one becomes a serial killer? Or, what causes one to become a serial killer?

Dr. Raffle: The prediction of violence in a specific individual is difficult, given the extremely rare occurrence of serial killers. Certain risk factors are identifiable for predisposing an individual to violence; however, the constellation of symptoms, behaviors, life experiences and genetic makeup makes it impossible to identify serial killers before the fact or even to explain how one “becomes a serial killer.” That said, a propensity toward violence most commonly occurs in individuals who have a prior history of violence, premeditated violence, paranoia, a strong impulse for revenge, drug and/or alcohol abuse, Antisocial Personality Disorder, Borderline Personality Disorder, the experience of repeated childhood sexual abuse and/or physical abuse, obsessional thinking, unresolved gender identity issues, sadomasochism, and conflicts about dominance/submission. The causes to become a serial killer commonly include prior sexual fantasies, coupled with torture ending in murder. The shift from fantasy to reality may occur following a personal crisis and need for greater satisfaction than is provided by the fantasy. Once the taboo of murder is breached, the serial killer is freer to convert subsequent emotional needs into murderous actions. Most serial killers have a ritualistic aspect to their killing which reflects their unconscious needs and conflicts, such as killing prostitutes, homosexuals, homeless people, or other such categories. The commonality of the victims usually is based on childhood experiences, parental attitudes, and psychosexual conflicts.

Nick: Are there common childhood development (characteristics or circumstances) issues among serial killers?

Dr. Raffle: The most common childhood development characteristics and circumstances include parental neglect, inconsistent parental behaviors, resulting in excessive, unpredictable punishment​ unrelated to wrongdoing, physical or sexual abuse by a parent or close relative, extreme religious beliefs, isolative behaviors as a child, poor impulse control, conduct disorder during childhood, victimization of various sorts during childhood, to name several.

Nick: News reports indicate the Golden State Killer was active between 1976 and 1986. Is it likely he stopped committing these crimes?

Dr. Raffle: On a probability basis, he didn’t stop committing his crimes after 1986. The nature of his fantasies may have changed over time such that subsequent murders were dissimilar enough from the earlier murders that they don’t share enough commonality to identify him as the perpetrator.

Nick: Is it uncommon for a serial killer to stop committing crimes?

Dr. Raffle: It is common for a serial killer to continue committing crimes.

Nick: Are there items you think the public should know about forensic psychiatry, as it relates to the Golden State Killer, that I have not covered in the above questions?

Dr. Raffle:

a) Serial murder is an extremely uncommon occurrence. It is extremely difficult to prospectively predict a particular person will become a serial killer, irrespective of the forensic psychiatrist’s ability.

b) The ritualistic behaviors of a serial killer do not define insanity or even suggest it​. Serial killers as a group are cunning individuals who seek not to be caught, who do not confess, and who obtain considerable self-satisfaction at the expense of their victims.

c) Serial killers as a group do not understand the intrinsic causes of their behavior and are extremely unlikely to be cured of their obsessional murdering. As the practice of psychiatry now exists, it is unreasonable to expect successful treatment of a serial killer.

d) The FBI Behavioral Studies Unit has interviewed and analyzed all of the serial killers who have been brought to justice. Certain statistical profiles exist which assist law enforcement to “profile” a serial killer based upon the victim type and associated rituals. Roy Hazelwood headed the unit for approximately 20 years and probably knows more about serial murderers than anyone else. His work has been instrumental in creating “profilers.”

e) The psychological makeup of serial killers is different from mass murderers. Serial killers who kill by sniping random people or cars are psychologically more similar to the mass murderer than the serial killer because they usually snipe more than one person during a shooting episode.

f) Contract killers are not serial killers. The mentality of a paid assassin is essentially that of an antisocial ​person who does not empathize with his victims and is therefore comfortable earning his or her living killing others. The obsessional quality or ritualistic behavior of the serial killer is not shared with the assassin. Their only common ground is they have killed more than once. The difference is the assassin is told whom to kill and is paid for it; whereas the serial murderer chooses his victims and engages in other behaviors in addition to a murder which satisfies unconscious needs. Conceptually, as serial murderers go, the assassin is “professional” and the serial murderer is a “hobbyist.”

Stay Tuned:

A huge thank you to Dr. Raffle for his very thorough insight into the mind of the Golden State Killer. Next week we’ll be bringing you more insights on the psychological nature of this perpetrator with input from some of our forensic psychology expert witnesses.

 

 

 

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2018 Lawyernomics Conference: Content Marketing to Build Connections with Clients

lawyernomics.PNG

The 2018 Lawyernomics Conference is less than two weeks away and I’m excited! This year, I’ll be attending, and representing Experts.com. What is Lawyernomics, you ask?

Lawyernomics is a conference created and hosted by Avvo, a leading digital company helping clients to research, find, and retain lawyers. It is also a platform for attorneys to promote their services and knowledge so they can be found by the right clients at the right time. The Avvo concept is not dissimilar from Experts.com. Avvo serves lawyers and consumers. Experts.com serves lawyers and experts.

Why am I excited? Several reasons:

One, I get to meet a ton of lawyers looking to improve and grow their legal practices. Meeting lawyers and informing them about the service we offer is something I love to do. We always want to build relationships with the lawyers who will be retaining our members in the future.

Two, the conference this year is all about building “connections.” Building connections is a huge part of what I do (connecting lawyers with experts). The “cherry on top” about this years theme, content marketing, is a big piece of the conference according to this post from Avvo: Lawyernomics 2018 aims to help build strong connections – and strong practices. As our readers and members know, I’m a huge proponent of content marketing. I spend a significant amount of my time creating and sharing content (some content by our members and other content for our members). Our customers are regularly made aware of the benefits of creating and publishing content in the form of articles, case studies, video/webinars, live video, and more!

Finally, attending the conference means I get to see and meet some great friends. Some I’ve met before and others I’ve connected with digitally and get to meet in person for the first time. It is always exciting to meet people in person after getting to know them online. Experts.com has built some amazing friendships, collaborations, and business relationships by being active online and creating and sharing valuable content! Content marketing and embracing digital platforms have changed our business; I cannot wait to be there to see others learn how it can change their business as well.

Speakers & Sessions I’m Excited to See:

The conference has a really impressive lineup this year. I’m really looking forward to meeting and learning from many of the speakers.

The Avvo Team:

There will be a lot of speakers from Avvo taking the stage over the two-day conference. I have not met members of Avvo in the past, so I’m most looking forward to speeches by Avvo’s Founder and CEO Mark Britton who will be providing a welcome speech. It’ll be interesting to hear about the things he has learned as the founder of the company, especially now, as I understand he’ll be leaving the company in the near future. It is always nice to hear about the progression of a company from someone who was there at the beginning.

Also, since I’m a fan of shiny new objects, I look forward to hearing from Avvo’s Product Manager, Danielle Martin. She’ll be speaking about the new features and new products Avvo will be offering to their members. It is always a pleasure to see new product offerings.

Creating Compelling Content Through Video, Podcasts and Other Marketing:

I am likely to pay dearly for not mentioning them first, but I have to take my chances. My friends Alycia Kinchloe of Kinchloe Law and Nicole Abboud of Abboud Media are hosting a session about creating compelling content. As you read above, I’m kind of into content creation. These lady lawyers are amazing! They are constantly creating spectacular content for the legal community, clients, and the niches in which they work. I am good friends with both, but I have yet to meet Alycia “in real life.” The three of us regularly interact and collaborate on content and other ideas through the LegalMinds Mastermind Group.

Growing Your Firm with Digital Marketing:

Seth Price, another member of the LegalMinds Master Group, is the Founding Partner of Price Benowitz LLP and Founder and CEO of BluShark Digital. Seth is an exceptionally knowledgeable lawyer and legal marketer. He’ll be discussing SEO, PPC, blogging, and social media marketing for lawyers. Many of these topics are of great interest to my expert witness members and I’ll be looking for the gold nuggets I can bring back to share with my customers.

45 Ways to Make Your Firm More Client-centric:

Gyi Tsakalakis, is the Founder of AttorneySync, a digital marketing agency for attorneys. This will be a spectacular session because it is focusing on customer service. Anything that helps improve the customer experience and delivery of a quality service is a must. Gyi will be discussing the implementation of client feedback systems, improving the client experience, and singing the praises of customers and clients.

The Age of Data Driven Law:

Patrick Palace, is the owner of Palace Law, a workers compensation and personal injury firm in Seattle, Washington. I met Patrick, albeit briefly, at the ABA GPSolo / GLSA conference last month. This time, I’m looking forward to getting to know him a little better and especially to learn all about the use of big data in the practice of law.

Patrick will be joined by Jack Newton who is the Co-Founder of Clio, a top-of-the-line law practice management service focused on helping lawyers spend more time with clients and less time on administrative tasks. I met some really great folks from Clio at the last conference, including Joshua Lenon, so I expect good things once again. Plus, if you combine someone with law practice management software for small and medium firms with the owner of a small/medium firm, I can only imagine there will be awesome insights on the use of data.

UPDATE: It seems that Jordan Couch of Palace Law will also be attending. I was unaware or I would have included him on my list of people I’m looking forward to seeing. I’m ashamed of my oversight. Deepest apologies, Jordan. 🙂

If you cannot tell, I’m really looking forward to this event. I anticipate having some useful and actionable information to share in future blog posts upon my return.

EnergyEngineeringExpert Witness

Expert Witnesses and North Korea? They Will Be Used to Verify Closure of Nuclear Test Site

Were you as surprised as I was to see the phrase “expert witnesses” in the same sentence as North, Korea? When I got back to the office this morning after a several days in New Orleans at the ABA GPSolo / GLSA Conference, I went through my emails, including my Google Alerts for “expert witness” and “expert witnesses.” One article, in particular, caught my attention. A post from ITV News titled, “North Korea ‘to close nuclear site’ in May in front of international expert witnesses,” got me thinking about what type of experts might be used in to verify the closure of a nuclear site. I understand that this probably means Kim Jong-Un will invite experts to witness the closure and is not likely referring to expert witnesses in the traditional-US-legal-system-sense.

Of course this article interested me because it brought together my employment and my undergraduate studies in Political Science / International Relations. In fact, the Dean of Political Science at my college specialized in the politics of the Korean Peninsula. I had taken several of his courses and respected him immensely, so this story really intrigued me.

Now, I do recall the verification processes that went along with the lead up to the war in Iraq. There were efforts by the International Atomic Energy Agency to verify whether or not Iraq had weapons of mass destruction, including nuclear weapons. It would not be a surprise to hear that the IAEA were involved in verifying the closure of a North Korean nuclear site. I do not want to get caught up on the particular agency taking part in this inspection. Rather, I am interested in the knowledge and specialization of the experts who may be asked to witness the closure.

According to the story from ITV News, “Kim Jong-un announced he would invite representatives from both South Korea and the US to witness the closure as the two Korean leaders met for a historic summit on Friday.”  What type of experts will be brought to witness the closure? How will we know the nuclear site is closed? Who verifies that it has been closed? What type of expertise is needed to verify the closure? These, and other questions were posed to some of our Nuclear Energy expert witnesses.

Before getting into the nuclear energy experts, I should also say that the above article really has to do with nuclear weapons testing, rather than the production of nuclear material. Our experts are more likely familiar with the production of nuclear material and that is what I have focused on as that will likely be a future step in negotiations.

Input from a Nuclear / Mechanical Engineering Expert Witness:

I reached out to one of our members based in the UK to get some answers on this subject. Geoffrey Beresford Hartwell is a Chartered Engineer who specialized in aerospace and nuclear energy early in his career. You can learn more about his current practice by visiting his website: arbitrator-engineer-gbh.co.uk. For ease of reading, I have distinguished between the questions I asked and the answers provided by Mr. Hartwell.

Nick: What type of experts would be used to confirm the nuclear testing facility is shut down?

Mr. Hartwell: I would suggest nuclear engineers or health physicists equipped with Geiger Counters and supervised by the International Atomic Energy Agency (IAEA). They should be able to detect remaining radioactive traces by their emission of alpha particles, beta particles or gamma rays.  They must test in apparently empty containers.

Nick: Would someone with your expertise be asked to participate?

Mr. Hartwell: I imagine so but my membership of the Institution of Nuclear Engineers lapsed after some health issues.

Nick: What is the process for closing a nuclear facility?

Mr. Hartwell:

A) Remove all active material to long-term storage approved by IAEA.  In contentious circumstances that should involve processing at a facility in Britain, USA or France.  I do not know if a facility is Russia would be appropriate.

B) Clean to IAEA requirements.  Dismantle plant and equipment.

C) After safety inspection (see Q.1) destroy nuclear specific buildings.  Reactor buildings, if any, may need special attention – insertion of boron absorber; casing in concrete; fencing.

Nick: How long might it take to close a nuclear facility?

Mr. Hartwell: Weeks, possibly months, perhaps many months.

Nick: Can a nuclear facility be reopened with relative ease?

Mr. Hartwell: Yes, if nuclear-specific buildings are left intact.

Nick: To prevent future activity at a nuclear facility, wouldn’t there have to be some action to dismantle a facility?

Mr. Hartwell: Yes.

Nick: What would it take to make sure that a nuclear facility is shut down and remains inactive in the future?

Mr. Hartwell: Demolish Nuclear-specific equipment and buildings – under IAEA supervision.

Nick: What items does the public need to know about closing a nuclear site?

Mr. Hartwell: Report of IAEA; open visits to site.

Nick: Any other comments you’d like to add. Important items that I have not covered in the above questions…

Mr. Hartwell: Disposal of materials is difficult; some remains radioactive for centuries.  Removing some materials – such as, from some reactors, hot liquid sodium which cannot be in contact with moisture – can be dangerous.

Well there you have it. Geopolitical affairs are taking place all around us. We get to wait and see what will happen with not only the nuclear testing site, but other nuclear production sites in North Korea. If another story presents itself in a way that I can write about it, I will.

I’d like to say I’m waiting for comment from Kim Jong-Un for this article, but his people are not returning my phone calls. I think they blocked my number.

 

 

 

 

Criminal JusticeCriminal LawExpert Witnesslegaltech

Fingerprints Lifted from Social Media Photo: Expert Evidence and Impact on Criminal Defense

Friday morning, I read a really interesting article from the FindLaw Technologist blog (their legal technology blog). The headline grabbed my attention because it was about drug dealers’ fingerprints being lifted from a photo on social media application, WhatsApp. This was news to me. I had no idea law enforcement could obtain digital fingerprints or that they could be used for an arrest. In hindsight, it seems perfectly reasonable that fingerprints could be obtained this way because the cameras in our cell phones are so advanced.

Probably, like many laypeople, I thought law enforcement had to access latent fingerprints left on a physical object (doorknob, weapon, cell phone, etc.). Based on my years of watching police procedural television shows and documentaries, I assumed the fingerprints had to be dusted by an evidence technician, input to a database, and then compared to other prints in the database. Today, however, I discovered that’s not the only way to do it.

As the Findlaw article explained, “Law enforcement arrested members of a drug ring using fingerprints on a cell phone photograph. Investigators didn’t even need the suspects’ cell phone because the photo was posted on the messaging application, WhatsApp.” The photo showed a male hand holding a bag of drugs. The agency’s forensics team uploaded the photo to a fingerprint data base and they found a match. The article specifically states the officers “acting on other information” located and arrested the man.

My assumption was the officers needed additional evidence in order to make an arrest.  Authorities can likely use the image as an investigative lead and then they have to go find additional evidence to establish probable cause for an arrest.

Alas, these were only my assumptions. It’s been a long time since I spent any time on criminal procedure. As such, I have asked for some input from 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.

Input from Criminal Defense Attorney Walter Reaves:

Walter jumped on the questions I asked and elaborated on the entire concept of using digital and social media photos. Here is what he said:

“Given the way cell phones have taken control of all our lives, it’s not surprising that they are being used as evidence in criminal cases. For several years, the police have been obtaining cell tower location to place a suspect (or at least their phone) in a certain location. Evidence found on cell phones has also been used – for some reason, dope dealers seem to like taking pictures with their stash. And of course, there’s always text messages.

A new technique may be lifting fingerprints from phones. The process would utilize a picture on the phone of someone’s hand and fingers, and attempt to match that like you would a latent print developed at a crime scene. The process may be no different from what is being done now. Latent prints are placed on a card, and pictures are taken. The digital photos are what are used for comparison.

If a fingerprint on a cell phone is used, you can expect challenges from defense lawyers. The prosecutor will have to convince the court the process for making the comparison is reliable, which may be a problem.

For starters, there could be problems with manipulating the photos in order to get something to use for comparison. The photos will probably need to be enhanced in some way, and you can expect defense lawyers to challenge the way that is done. Some adjustment will have to be made for the photo itself, since no camera produces an exact representation of what it is capturing. Establishing the admissibility of the photo of the fingerprint will therefore have to be the first hurdle the State will have to meet.

Even if the State can establish the identification is reliable, I seriously doubt this is going to be a common practice. I can’t imagine many situations where it would be relevant. Maybe if someone is holding dope, and all you can see is their hand, the fingerprint could be used to establish possession. I can’t think of many other situations though. In most cases, you would think if a picture is being taken, you could identify who was in the picture. You also might have problems with identifying location, and time, if that’s important.

There will be an even bigger problem when you are trying to use the photograph to prove possession of a controlled substance. The problem is proving what the substance is. If you don’t have it, there’s no way to test; it could be baking soda just as easily as it could be cocaine.

So, it’s an interesting concept, but don’t expect it be coming to a courtroom near you anytime soon.”

Based on reading this information from Walter, I stand by my contention this is an investigative tool for law enforcement. However, such images are unlikely to be used as evidence in court. It seems there will be problems with relevance, reliability, and authenticity. These hurdles may in time be overcome as technology advances.

Input from Photographic Evidence Expert Witness Dr. James Ebert:

For a more in-depth understanding of this practice, I reached out to Experts.com member and expert witness Dr. James Ebert. Dr. Ebert is a forensic photogrammetrist who is regularly called to interpret and testify about photographic and mapped evidence in civil and criminal matters. You can learn more about Dr. Ebert’s expertise and practice by visiting his website ebert.com.

Dr. Ebert’s comments left me feeling behind the times when I heard about the use of digital photos as a law enforcement tool. Here is what he had to say:

“It has been widely known and discussed on the web for a decade or more that identifiable fingerprints can be recovered from photographs for good or bad purposes, given that the photos are of sufficient resolution, lighting, focus, and that enough of the fingerprint can be seen to allow a match to be attempted.  Faces published on the internet can, of course, also be identified through photo matching services like TinEye reverse image search, or facial recognition software.  Both fingerprints and faces can, for instance, be run on the FBI’s new Next Generation Identification system by law enforcement agencies around the country.  This does not insure false positive results as are common with all automated fingerprint or facial identifications.  I have never attempted to make identifications of fingerprints in my practice as a forensic photogrammetrist, but are certainly possible and they should be just as reliable as are those done with fingerprint or facial data collected in other ways.  I am often, however, called upon to do facial identifications from photographic evidence. Whether such fingerprints and facial identification are ethical clearly depends on whether they are done for ethical purposes.  Identification of possible criminals from fingerprints by law enforcement is an example of a good use of technologies, and if done for purposes like hacking or harassment it’s not.”

Based on Dr. Ebert’s comments, it appears this practice has been considered and possibly utilized for some time. As Dr. Ebert mentioned, there is potential for abuse in matters of hacking and harassment. I cannot speak for Walter, but I imagine he would think there is potential for abuse by law enforcement as well.

Technology is changing so rapidly that it is difficult to keep up with all the advancements. What we’re doing with this blog is trying to discover how technology impacts the criminal justice system. If you have any suggestions for future  posts on technological advancements in criminal or civil justice, please comment below.

 

 

EngineeringExpert WitnessInsurancelegaltech

Robot Rights and Liability: Do they need legal rights? Here’s what one expert witness has to say…

Have you been following the advancements in artificial intelligence and robotics? There are some really fascinating developments in the fields. Just this week I’ve read about artificially intelligent systems used to identify people likely to commit a crime (before it happens); robotics systems being used in construction; unmanned aerial vehicles; self-driving cars; and, of course, it seems a week cannot go by without a new headline about sex robots.

Last Friday, I found some news stories that were really interesting. It appears a 2017 report from the European Commission had “a paragraph of text buried deep in a European Parliament report, that advised creating a ‘legal status for robots,'” according to this article from The Daily Mail.

I found this quite fascinating and had to dig deeper. Why would we need to develop a legal status for robots? What would be the point? An article in Futurism stated, “If a robot, acting autonomously injures or otherwise wrongs a human, who will be held responsible? Some European lawmakers think that the best way to resolve this question will be to give robots ‘electronic personalities,’ a form of legal person-hood.”

To me, there is a simple answer to this topic. The owner and/or the manufacturer would be held liable. Why would society need something beyond existing negligence, product liability, and consumer protection laws?

According to the report, the European Commission does not want to give robots legal status equal to humans. Rather, they want to give them a status similar to corporations. The concern doesn’t seem to apply to your automation-style robots, but rather those capable of self-learning.

I contend we do not need new theories of liability to address this issue. It should be handled just like owning an automobile. As the owner of a car, I must have it insured. Insurance covers personal injury and property damage caused by the vehicle if I am driving it or if another driver is covered by my policy. If the vehicle malfunctions and causes damage due to a manufacturing, design, or warning defect, then I sue the manufacturer (or another injured party may sue the manufacturer). As such, owner and manufacturer are the responsible parties. My automobile doesn’t require its own legal status.

A robot, sentient or not, does not require its own legal status. It can be insured just like an automobile and the owner should be responsible for insuring the equipment. Furthermore, if it malfunctions and causes harm, the manufacturer can be held liable for any product defects.

I have asked for some input on this topic from a couple of our Experts.com members. At the time of this writing we have received a response from one expert. Dr. Harry Direen, PhD, PE, has a wide variety of expertise including electronic systems, control systems, robotics, software, signal processing, UAV’s/drones, and more. I encourage you to check out his company DireenTech.

Several questions were posited to Dr. Direen. Please see the questions and answers below.

What the expert has to say:

Me: Do you see any need for creating a legal status for robots?

Dr. Direen: No… robots are not humans, they are machines.  Despite the hype, I do not believe robot technology is anywhere near thinking on their own or being responsible for their actions.

Me: Are there any positive reasons to create a legal status for robots?

Dr. Direen: No, not that I know of.

Me: Are there any negatives you can think of in creating a legal status?

Dr. Direen: Yes, as a society we start legally blurring the lines between humans and the machines we create.  I don’t believe we elevate humans in the process, but just the opposite.  We advance the myth that humans are little more than carbon based machines with no more value than the machines we create rather than highly valued creations of our Creator.

Me: Is there any reason damage caused by robots cannot be addressed by existing legal principles such as product liability (manufacturing, design, or warning defects)?

Dr. Direen: No. Giving robots legal status would simply be an excuse to divorce engineers, designers, and manufactures from the responsibility of their products.

Me: If a robot were to fail and cause personal or property damage, would a forensic investigation apply the same principles as any other failure analysis investigation?

Dr. Direen: Yes, a robot is just a piece of technology like any other.

So there you have it. Dr. Direen and I seem to be in agreement. Existing legal and investigatory principles should apply to robots. There is no need to provide additional legal protections to machinery.

What do you think? Feel free to comment below and let me know your thoughts. It is a fascinating topic. Robotics is a field where I anticipate a great deal of future litigation. As the topic evolves, I’m certain we’ll be discussing it in greater depth.

 

Expert WitnessExpert Witness TestimonyFraudLawyers

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?

 

 

 

Accident Investigation & ReconstructionAccident SafetyExpert Witness

Tesla and Uber Self-Driving Systems Result in Fatal Crashes

In the last few weeks we have read several news reports about self-driving car accidents. Tesla and Uber, two companies leading innovation in driverless automobiles, have recently experienced fatal collisions which have hampered their autonomous testing. These are not the first instances of fatal crashes using the self-piloting systems. However, the collisions happened in such a close time frame, the public had to take notice.

On March 18, an Uber autonomous vehicle (AV) was involved in a fatal crash with a pedestrian. A Phoenix Business Journal article describes video of incident as follows:

“The video shows the victim Elaine Herzberg walking her bike in the middle of the road. It does not show the actual collision “due to the graphic nature of the impact,” said Det. Liliana Duran in an email. The video also shows an interior view of the driver looking down at something off and on, possibly a phone or computer screen, before looking up in surprise right before the car hits the woman.”

Due to the graphic nature of the video, we have decided not to share it here. There appears to be some elements of distracted driving involved in this crash. Human error seems to have combined with a failure by the autonomous (self-piloting) system, to identify the pedestrian and brake or take evasive action to avoid the collision.

About 5 days after the Uber crash, Tesla experienced a similar incident while their autopilot system was engaged. Engadget reported on this accident explaining:

“The driver of a Model X has died after his electric SUV collided with a median barrier on Highway 101 in Mountain View and was subsequently struck by two other vehicles. The incident destroyed the front half of the vehicle and sparked a fire that involved the battery, leading to Tesla sending an employee to investigate. Witnesses reported seeing a fireball during the crash.”

In a follow-up article today, Engadget has gone on to state that the NTSB is unhappy that Tesla shared information about the accident. Tesla CEO, Elon Musk, went ahead and blogged that autopilot was engaged but that the driver had removed his hands from the steering wheel for the six seconds prior to impact. The NTSB says Tesla has been cooperative in all previous accident investigations, but evidently they did not want this information made public. Also, it seems the deceased driver, had some concerns about the autopilot system according to his family.

The family claims “he had brought concerns to a Tesla dealership that his Model X had previously swerved toward the same median where the accident happened.”

What gets investigated when autopilot fails?

Readers may think that some elaborate investigation needs to take place since we are dealing with driverless automobiles. The truth is, this boils down to an automotive / vehicular accident reconstruction issue.

Certainly there is advanced programming involved and the crash data retrieval (CDR) may require new methods or new technologies to access information, but the data must be recovered nonetheless.

The NTSB even states, “At this time the NTSB needs the assistance of Tesla to decode the data the vehicle recorded.” They probably require help in accessing the data from Tesla’s proprietary system, but it is still a matter of CDR. If Elon Musk knows that the driver removed his hands from the wheel for six seconds prior to impact, he must have learned of this through the data retrieval process used by Tesla.

The same is true in the Uber crash. They already have dash-cam footage that shows the vehicle did not slow before striking the pedestrian. In that instance, an accident recontstructionist, automotive engineer, or automotive software engineer will have to analyze the self-driving sensors, data, and response of the software, to determine why the car failed to respond while on autopilot.

Both of these accidents require failure analysis. What seems new to us as a society, is that these crashes involved a failure of software, rather than brakes, tires, steering columns, or seat belt failures (failures that have become common and often result in a recall to fix a feature).

The technology and collection methods may change. However, the theories of liability and the investigation remain pretty constant. We have two automobile crashes resulting in death. They require a thorough accident reconstruction investigation to determine the cause of the accidents. Once determined, matters of negligence, product liability, and fault still apply.

 

Expert WitnessIntellectual PropertylegaltechSocial Media

Tinder v. Bumble: Swipe Right for Your Next Patent Infringement Expert Witness

Last Friday I was sitting at my desk trying to find the next topic to blog about. Friday was an incredibly slow news day and nothing had piqued my interest. So I reached out to some lawyer-friends in the LegalMinds Mastermind Group for some ideas. I received a lot of feedback with some really great ideas. However, this Tinder v. Bumble lawsuit sounded like the most fun. A special thanks to patent lawyer, Karima Gulick, for the idea.

In fact, I had not even heard about this lawsuit until Karima mentioned it. It seems that Tinder’s parent company, Match Group (think Match.com), has decided to sue Bumble for patent infringement. For those who haven’t heard of Bumble, it is another popular dating app that allows women to make the first move. It seems they are now using very similar features to Tinder. An article in The Verge described the two patents at issue:

“…one called ‘Matching Process System and Method,’ in which users swipe cards and mutually select one another, as well as ‘Display Screen or Portion Thereof With a Graphical User Interface of a Mobile Device,’ which it describes as an ‘ornamental aspect’ of Tinder’s App. The lawsuit also points to similarities between each companies’ apps, and Bumble’s descriptions of ‘swiping’ run afoul of Tinder’s registered trademarks.”

It seems Tinder is accusing Bumble of infringing on the item that really made Tinder famous (i.e. swiping). Swiping did away with all that scrolling, reading, and learning about a potential romantic interest. Who has time for that? Even if you have time, who wants to do it? Instead, Tinder allowed you to make the important dating decision based on looks and looks alone, if you’re that shallow. It does appear there is a short biography portion some might want to read, but only if the potential match fits your physical requirements per their photo.

“Swipe right” and “swipe left” became a part of our nomenclature, often used outside of dating. I’ve heard comics and late show hosts use the terminology. There is no doubt in my mind, those using the terminology associate it with Tinder. Alas, Bumble decided to use the feature as well. Probably because users liked picking their mates via the swipe method.

There are some further accusations as set forth in this article by Recode, “[Tinder] also claims that early Bumble executives Chris Gulczynski and Sarah Mick, who both previously worked at Tinder, stole ‘confidential information related to proposed Tinder features,’ including the idea for a feature that lets users go back if they accidentally skip someone, according to the suit.” This is important, because when you’re swiping for volume (because it’s a numbers game) and get into a zone you might accidentally eliminate someone you find attractive. You need to undo that ASAP.

Finally, there is the issue of Match/Tinder trying to purchase Bumble last year. They offered $450 million, which was turned down, due to the acrimonious relationship between the two companies. Is Tinder using this case to apply some pressure on Bumble, thereby encouraging a sale? Quite possible.

If the case actually moves ahead and a sale is not negotiated, we can expect to see some expert witness participation. What kind of experts? I wish I could encourage you to swipe right to view them. However, you just have to keep reading!

Intellectual Property / Patent Infringement:

Intellectual property is sort of wide ranging term for expert witnesses. A broad range of expertise fits into the category intellectual property, such as patents, patent infringement, trademarks, trade dress, copyrights, licensing, trade secrets, and more.

In the Tinder v. Bumble issue, it appears they are only suing over a couple of patents and The Verge told us what those patents are. Both patents appear to be connected with the user interface, so I anticipate we will see intellectual property experts with software, programming,  and design engineering backgrounds. There is potential need for electronic engineering expert witnesses, but I think that will be less likely as it doesn’t appear hardware is at issue in this case.

Trademarks:

The lawsuit also claims that Bumble’s use of the word “swiping” infringes on Tinder’s registered trademarks. This legal dictionary from Cornell Law School’s Legal Information Institute describes a trademark as follows, “A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.”

The Legal Information Institute also tells us that “Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive.”

As I mentioned above, I knew that “swiping” was something associated with Tinder and I know that Tinder is a subscription based dating service. So, according to this layperson, the mark is being used in commerce and I recognize it as distinctive to Tinder. Now that I’ve made this information public, I cannot imagine Bumble wanting me on the jury. Luckily, the case has been filed in the US District Court in Waco, Texas.

Furthermore, a trademark expert witness retained by Bumble, may be able to provide information about “swiping” that indicates it is not distinctive. In fact, the terminology may be quite prevalent in software uses.

A Similar Matter?

The software matter I equate to this lawsuit would be the “Stories” issue between Snapchat and Instagram. Snapchat was the first social media platform to use the Stories feature, allowing users to post a continuing series of video clips or photos in order to create an ongoing story. Instagram copied it, nearly outright, and even admitted that they took the idea from Snapchat. To my knowledge, this has not resulted in litigation. However, the use of software-based features seem nearly identical and I wouldn’t be surprised to see a patent infringement and trademark dispute between Facebook (Instagram’s parent company) and Snapchat.

Requests:

As I am not practicing in this field, I think it would be great to get some feedback from a some lawyers who regularly deal with patents and trademarks.

I have asked Karima Gulick of Gulick Law and Joey Vitale of Indie Law to provide some real insight, rather than lay punditry, in the matter of Tinder v. Bumble.

UPDATE:

Intellectual property and patent attorney, Karima Gulick, has provided her insight about this case on her blog. Here is her blog post: Tinder v. Bumble: Patent dispute in app dating paradise.

Copyright and trademark attorney, Joey Vitale, has provided his insight about this case on his blog. Here is his blog post: Be careful if you “swipe”: trademark battles in Tinder v. Bumble.

 

 

Accident Investigation & ReconstructionCranesEngineeringExpert WitnessForensic Accident Investigation

Let the Finger Pointing Begin: Who is Responsible for the FIU Bridge Collapse?

[DISCLAIMER: In this post, we are going to name probable defendants based on available information. We are not determining liability or placing blame.]

One attribute of legal education is viewing an event and knowing, without a doubt, litigation will ensue; it is a blessing and a curse! I had this experience yesterday as I watched the horrific news unfold about the Florida International University bridge collapse. Issue spotting and parties were being identified within minutes after I received notice a bridge had failed in Florida.

For many catastrophic injury and wrongful death attorneys, this is a dream case. This sounds bad, I know, but hear me out. The result of this disaster is appalling and fault is abundant. None of that fault can be attributed to the victims. They were going about their day – sitting in their cars, stopped at a red light, probably admiring the new bridge – when the bridge collapsed on top of their vehicles. The victims did nothing wrong. They have no-fault (contributory, comparative, or otherwise) and, for certain, someone else is to blame.

The list of defendants will be ample. I’ve listed some of the probable defendants below. Don’t worry, these companies and institutions will be doing their own finger pointing. Whether we see it reported in the news or not, the blame game has already begun. To limit their liability, these defendants will point to others as responsible for this catastrophe, and the others will point back and point to others.

What we know:

In the City of Sweetwater, Florida, a pedestrian overpass at Florida International University (FIU) collapsed onto a notoriously busy road below. The Miami-Dade fire department confirmed six people are dead as a result. According to this article from Yahoo News, “at least eight vehicles were trapped in the wreckage of the 950-ton bridge.” Evidently, the bridge was constructed on the side of the road and was installed last Saturday.

“To keep the inevitable disruption of traffic associated with bridge construction to a minimum, the 174-foot portion of the bridge was built adjacent to Southwest 8th Street using a method called Accelerated Bridge Construction (ABC). It was driven into its perpendicular position across the road by a rig in only six hours on Saturday, according to a statement released by the university.

The $14.2 million bridge was designed to withstand a Category 5 hurricane, the most dangerous measure by the National Hurricane Center, and built to last 100 years, the university said.”

We can safely say the bridge did not live up to the purpose of its design. It didn’t have an opportunity to be hurricane tested because it was unable to remain standing for a whole week.

Possible Defendants: Anyone Involved in the Design, Construction, Inspection, and Erection of the Bridge

Where do I start? There are so many possibilities. Here is the list I’ve developed so far:

  • Munilla Construction Management (built and installed the bridge)
  • FIGG Engineering Group (bridge design, engineering and construction services)
  • Barnhart Crane and Rigging (moved the bridge into place)
  • BDI (structural testing and monitoring services)
  • City of Sweetwater
  • Miami-Dade County
  • Florida International University
  • Florida Department of Transportation
  • Materials Manufacturers (concrete, steel, etc.)

There will probably be other subcontractors and unknown parties who will be added to this list. The city, county, and state probably conducted inspections at different times during the design and construction of the bridge, so failures may be attributed to the municipalities as well.

Where Experts Come In:

What we have in this case is a bridge collapse. Failure analysis is the technical phrase used to determine why the bridge collapsed. The NTSB is sending their own investigative team to determine the cause for the failure. In litigation, both Plaintiff and Defense will retain a variety of experts to conduct their own analysis. Experts for all parties will have many questions to address. Here are some of the issues that come to mind immediately…

Were there defects in the construction of the bridge? If construction defects are identified, they may indicate a breach in the standard of care used by Munilla Construction Management during building of the overpass.

What about the design of the walkway? Did FIGG Engineering follow appropriate standards in designing the structure? Design and structural engineers will have to evaluate errors in the specifications which may have left the platform in a weakened and unsafe state.  This will also play a role for BDI who monitored the installation and later posted this picture, on Twitter:

 

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Was the platform moved and installed according to crane and rigging policies and standards? Had there been a failure to secure the pieces of the bridge when moving it into place? Had the installation process added stress to components unnecessarily? This will all have to be analyzed to see if Barnhart Crane and Rigging had breached their standards of care during installation. Again, this will play a role for BDI, as they believed the move was a “job well done.”

By images and videos available in the news, we can see significant concrete slabs on top of the damaged vehicles. It will have to be analyzed and determined if the materials themselves had failed. Was the concrete, steel, or other material defective? Was it built to specifications? If not, what is the acceptable industry-standard deviation? If so, a product liability lawsuit against the materials manufacturers may also be appropriate.

All of these items will come back to the municipalities involved. Why did they retain the above-named companies? Was there a history of safety concerns with any of the firms? Were they overlooked? Did the municipalities fail to properly inspect the construction efforts? The Miami Herald covers some items about Munilla Construction Management and FIGG Engineering (and their respective work histories) in this article.

Traffic and pedestrian safety standards also come to mind as issues that may be addressed in upcoming litigation. Was there an alternative traffic route that could have been used until construction was completed? Were traffic safety procedures followed for the installation of an overpass?

There are many questions to be answered. For the victims, those answers will not ease the pain of losing loved ones. But the one guarantee we have is that one or more parties are responsible and those parties will be busy pointing the finger at each other and at others.