Expert Witness

Expert Witness Work Product & Communications – Changes to Federal Rule 26

on September 30, 2010

Unless Congress legislates to the contrary, the United States Supreme Court has approved amendments to Rule 26 which will take effect on December 1, 2010.  These much needed amendments affect Expert Witness work product and communications and became an issue in 1993 when the Committee Notes from Rule 26(b)(4) broadened their discovery.  The Committee reasoned that only by disclosure of communications, notes and drafts of work reports used by the expert could the fact finder determine how much of the expert’s opinion was influenced by the attorney.

These Committee Notes put the Expert Witness at a great disadvantage and forced attorneys to practice in murky waters.  Both attorneys and experts would go to great lengths to avoid creating a discoverable paper trail. In an article written for the ABA, Calvin Cheng writes that attorneys would go so far as to, “…prohibit experts from taking any notes, making any record of preliminary analyses or opinions, or producing any drafts of the report.”  It stands to reason that the quality of Expert Witness work product declined. In depositions, behavior by counsel trying to prove the existence of work product became egregious, costly and counter-productive.

The American Bar Association finally called for a change and the following amendments were created:

Rule 26(b)(4) will extend immunity to the discovery of draft reports by testifying expert witnesses and, with three exceptions, to communications between Expert Witnesses and retaining counsel.

Rule 26(a)(2)(c) would require an attorney relying on a testifying expert who is not required to provide a 26(a)(2)(b) report to disclose the subject matter and summarize the facts and opinions that the expert witness is expected to offer.

In the end, this seems like a fair compromise.  No longer will communications, drafts, notes, preliminary findings or opinions be discoverable under Rule 26(b)(4). Those experts specifically retained to provide expert testimony need only provide a final report for discovery.  Three exceptions to this rule apply but they seem fair enough: (1) Communications regarding expert compensation; (2) Data given by the attorney to the expert which was considered in forming his opinion; and (3) Assumptions provided by the attorney on which the expert relied in forming his opinion.

Those experts who are “not retained” but who qualify as Experts for a case need only summarize the facts that support their opinion.  In this way, they are not unduly burdened for their time and yet all parties are aware of what their testimony will include.

Save a few, the amendments to Rule 26 have been met with overwhelming support by attorneys and bar associations.  For Expert Witnesses, it means higher quality work product in a less adversarial arena.  In essence, these amendments are a win-win for both attorneys and experts.


Expert Witness

EXPERT WITNESS CASE REPORTS & CHALLENGES

on September 27, 2010

In the view of this pundit, it never hurts for Expert Witnesses to wear a little Kevlar under their suits. Many Experts do not know that there is a consolidated arsenal of information about them that is available to attorneys. This information can either bolster or undermine an Expert’s credibility.  All Experts should know that this data exists and that they also have access to it, albeit for a fee.

The information is based on public record and is compiled by legal databases using expert witness depositions, testimony and reports, case law, jury verdicts, dockets, briefs, and motions pertaining to the admissibility of expert testimony.   It comes in the form of an extensive, in-depth report which is a cost-effective, efficient way for attorneys to determine the following information on Experts and for Experts to be aware of what they could be up against:

  • Win/lose record when testifying for the Defendant
  • Win/lose record when testifying for the Plaintiff
  • If Expert is Plaintiff’s Expert or Defendant’s Expert
  • If Expert Witness qualifications were challenged and the outcome – admitted or excluded
  • The names of attorneys worked for and judges appeared before
  • The amount of awards won
  • If testimony was mostly in state or federal court

With knowledge as your armor, it is best to leave naivete at the door and enter the courtroom believing it is your battleground. Reports that offer a summary of an Expert’s past experience will not only benefit the attorney, but will prevent Experts from being blindsided by damaging questions of credibility.

Expert WitnessLitigation

Expert Witnesses – Early Case Involvement

on September 23, 2010

An unfortunate practice among many attorneys is to wait until the last minute to retain an Expert Witness.  This has put a strain on the attitude that Experts have toward attorneys. As Expert Witnesses will tell you, waiting to hire them for their services can be detrimental to all parties involved in the case.  It burdens the Expert to perform at his best, sometimes having to process months of information and produce his opinion under unreasonable time constraints.  This is not to the benefit of the attorney or the client.  One Expert we interviewed had this to say,

“…frustration mounts, anger sets in, and you quietly curse the Litigators for waiting until the very last minute to solidify your expertise for case leverage. Thoughts of putting the monkey on their backs run through your head, like why not add a penalty for putting me, the expert, into a position of having to now work 15 hours per day to perform at my best. Where do we as experts justify the pressure generated by firms in general, without any consideration of the hurdles we’ll have to run in order to offer professional expertise. Should we tack on additional billable hours as “Overtime” pay, or swallow the enchilada that this is just the way things are done in the expert witness arena, and reconcile that this is your job description, live with it?”

Some attorneys believe that hiring an Expert at the outset of a case may not be cost-effective.  However, in many cases, the opposite is true.  An article featured by the American Bar Association supports the view that the trend is toward retaining the Expert at the beginning of the case.  The authors, Lisa Pierce Reisz, Esq. and David V. Dilenschneider, Esq., in their article entitled, “Early Case Assessment:  Get Experts Involved From Day One” write that, “Many litigators and their in-house counsel clients recognize that this process facilitates better decision-making with respect to whether and how to proceed with a case-ultimately resulting in more certainty and a reduction of costs.” They go on to say that hiring the Expert well before the court-imposed deadline is just good strategy.

Is it possible to put an end to the love-hate relationship that exists between attorneys and experts?  Maybe this is a step in the right direction.

Expert WitnessInsurance

Expert Witness Insurance?

on September 22, 2010

One question on the minds of Expert Witnesses more than ever is, “Do I need professional liability insurance?” That is not an easy question to answer.  Experts have always received  immunity from professional malpractice claims, however, there has been a trend toward allowing retaining parties to sue their Expert Witnesses for negligence.

In order to prevail, Plaintiff must prove that the testimony given is not on par with the Expert’s standard and that Plaintiff would have won the case “but for” the Expert’s negligence.  This standard is difficult to prove and requires a “trial of the Expert within the actual trial.” If found negligent, the Expert can only be held liable for the actual harm caused to Plaintiff. (Mattco Forge V. Arthur Young & Co.).

Avoiding Liability
According to the A-Z Guide to Expert Witnessing (Babitski, Mangraviti, and Babitski), the following tips will help Experts avoid professional liability.

  • Testify Truthfully
  • Be Well Prepared, Careful, Competent
  • Appear As Agreed
  • Maintain E&O Insurance
  • Understand the Daubert Test of Admissability of Testimony
  • Do Not Destroy, Misplace or Lose Evidence
  • Avoid Being “Agreed Upon” Expert To All Parties (Lose Adversarial Immunity)
  • Avoid Conflicts of Interest
  • Seek Legal Counsel In Drafting Contractual Language In Engagement Letter
  • Be Discerning As To Which Attorneys You Work For

With the absence of Expert Witness immunity, we would like to pose the following questions:

1. Should the party hiring the expert be entitled to sue the expert for malpractice?
2. Should the party that the expert testifies against be allowed to sue the expert?
3. Is professional liability insurance something that every Expert should consider?
4. What are the implications of Experts having to carry Professional Liability (E&O) insurance?

This post does not even break the surface of the case law or circumstances under which this topic could arise. It is simply intended to bring about discussion. Please leave a comment to answer the above questions, share any experiences you may have had, or opinions you hold on this subject.

Psychology

Psychology of Negotiation

on September 21, 2010

What is the best way to approach a legal opponent?  Some would say the old “adversarial”  attack is the most effective – to come out with fists flying.  In other words, YOUR agenda as the TKO.  From a psychological standpoint, a little sparring would better serve your purpose.

It is common in many sports to put yourself in the shoes of your opponent so that you can better anticipate their moves.  The same is true for legal negotiations.  According to Dr.  Kenneth J. Manges, PhD, a Forensic Psychology Expert, sometimes it is necessary to, “…Give your perspective a rest and invest yourself in opposing counsel’s position.”  In his article entitled, “Psychologically Speaking©: Negotiation 101,” Dr. Manges goes on to say, …”Role playing your opponent will prepare you for their way of thinking, which will in turn get you thinking more clearly about how you have to counter what they have to offer.”

Read Dr. Manges’  Full Article

Dr. Kenneth J. Manges is a Vocational and Psychological Expert with over 30 years of experience. He is certified in Forensic Psychology, Emotional Trauma, Wage Loss, Disability, and Crisis Intervention and is recognized as an Expert in Post Traumatic Stress Disorder

Accident Investigation & ReconstructionElectro-Mechanical EngineeringEngineeringIndustrial AccidentOSHA

Steel Mill Electric Arc Furnace Accidents

on September 16, 2010

Steel mill electric arc furnace manufacturers and employers must be required to properly train workers to ensure a safe working environment. The following Case Scenario is an example of how improper training can lead to egregious harm and even death.

Steel Mill Electric Arc Furnace

Case Scenario: Death On A Steel Mill Electric Arc Furnace

 

By: David Kobernuss, BSEE, MSEA, PE
Tel: (315) 336-2808

Expert’s Job Assignment

To assist with the case by the plaintiff widow against a third party industrial company and various contractors.

Case Synopsis

Maintenance work was being done on a three phase AC electric arcfurnace that was about 30 feet in diameter. It was shut down for some extensive repairs. There were many different crafts and contractors working on different aspects of the repairs and many of them were out of sight of others.

The deceased was welding on the support section of one of the three electrode arms that hold and carry current to the main electrodes that do the melting in the furnace. The clamping section had been removed so that he could get access to the damaged area that was to be repaired, and it was being held up about 10 feet above him by an overhead crane, by means of a chain assembly on the main crane hook. The removed clamping section was an assembly of aluminum and copper that weighed over two tons.

By means of a spurious electrical signal the control circuit for the furnace sent a signal to raise all three electrode arms. The stored energy in the hydraulic accumulators did just that: all three electrode support posts rose up to their full height. In doing so one of the other arms hit the suspended clamping section and dislodged it from the overhead crane. It fell and killed the welder below.

Expert analysis

  1. The control system for the furnace required that there be a large hydraulic accumulator for each phase electrode in order to be the source of a large volume of oil so as to move the electrodes faster that the hydraulic pumps could supply the oil. These were piped to the electrode cylinders through 4 inch diameter pipes.
  2. . . . Read Entire Article

David Kobernuss, BSEE, MSEA, is an Electro-Mechanical Engineering Expert who specializes in Industrial Accidents, Machine Performance, Electrical Accidents, Shock and Electrocutions.

Computer ForensicsComputer SecurityComputers

Computer Safety and Security Articles

on September 15, 2010

CYBER ABUSE, CYBER CRIME

By: Richard Albee
DataChasers, Inc.
Tel: 877-DataExam (877-328-2392)
Website: www.DATACHASERS.COM

The Internet is a vast universe of discovery, with items of interest for everyone–regardless of your particular curiosity. Unfortunately, this availability often leads to abuse, and sometimes to crime. But, not unlike adolescent discovery, the steps to cybercrime are achieved in stages.

The first stage is availability

Without access to the Internet the potential for abuse becomes a moot point. It was common, several years ago, to simply advise employers against allowing employees access to the Internet; this is no longer practical. Internet access is an integral part of many businesses, and certainly a part of everyday life…
Read the Entire Article

DataChasers, Inc., is a select, exclusive computer forensics and e-discovery company. Our examiners find the evidence, interpret it, evaluate its importance, and articulate those facts to a jury. Computer forensics and e-discovery is our only business, and we welcome your inquiries about the process, or our procedures.

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CSI COMPUTER FORENSICS – Real Cases From Burgess Forensics #9 – The Case of the Teacher and the Trickster

By: Steven G. Burgess
Tel: (866) 345-3345
Website: www.BurgessForensics.com

The stories are true; the names and places have been changed to protect the potentially guilty.

It was a grey October day, the kind of day when a guy likes to cozy up next to a bank of servers to keep warm, when the Teacher first called me. “They think I’m nuts” were the words emanating from the phone. Well, just because you’re paranoid doesn’t mean they’re not out to get you. I sat up and went to my desk, away from the noisy fans cooling off all those Gigahertzes. “What’s the problem, Miss?”

The young woman explained that she was a not-yet-tenured teacher in a New England (greyer there than here) high school with a problem. Seems that a student in one of her classes was repeating things in the classroom that she had uttered only the night before in the apparently illusory privacy of her own living room…
Read the Entire Article

Steve Burgess is a freelance technology writer, a practicing computer forensics specialist as the principal of Burgess Forensics, and a contributor to the just released Scientific Evidence in Civil and Criminal Cases, 5th Edition by Moenssens, et al.

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