Demonstrative EvidenceExpert WitnessLitigationTestimony

EXPERT WITNESSES – RULES FOR VISUAL AIDS IN THE COURTROOM

Medical Illustration

Photo Courtesy of Coulter Medical Imaging

Visual Aids and Demonstrative Evidence are an excellent way for Experts to explain complex medical, financial and technical issues to juries.  Listening to Finance Experts expand upon how damages were calculated in real estate litigation or to Medical Experts explain a botched surgery is often not enough.  For hard to follow testimony, visual displays or demonstrative evidence, such as charts, drawings, graphs, and models can be essential to capturing and maintaining a jury’s attention.

In their book entitled, “Expert Testimony,” Steven Lubet and Elizabeth I. Boals suggest that there are Six General Rules for using visual aids in the courtroom.

  1. Keep It Simple – too much information can overload the jury.
  2. Only use information essential to the case and easily demonstrated.
  3. Obtain professional assistance in drawing and developing visual displays.
  4. Work in conjunction with the attorney – the visual aids may be subject to legal or procedural rules that govern their use.
  5. Be sensitive to the judge and his/her acceptance of digital technology displays – confer with counsel.
  6. Be sensitive to the impact of graphics – an enlarged photo of a bloody bullet trajectory may be too disturbing for a jury.  A drawing may get the point across and also be less offensive.

As technology progresses, litigation is becoming increasingly more complicated for juries to understand. Using demonstrative evidence and visual aids and following these general rules can mark the difference between a case won and a case lost.

Accident Investigation & ReconstructionBiomechanicsEngineeringExpert Witness

Biomechanics Expert Witnesses & Consultants

Biomechanics are defined as the scientific study of biological and especially muscular activity – as in locomotion or exercise.  Though this field of expertise is relatively new as it pertains to litigation, it is understandable why so many attorneys are turning to biomechanical engineers to support their cases. In Smelser v. Norfolk Southern Railway
Company, 105 F.3d 299, 305 (6th Cir. 1997),  it was noted that, “Biomechanics apply the principles in mechanics to the facts of a specific accident and provide information about the forces generated in the accident, explain how the body moves in response to those forces, and thus determine what type of injuries would result from the forces generated.”

Biomechanic experts are trained in Engineering as well as Human Anatomy.  This makes them particularly useful for determining causation  in personal injury and products liability cases.  For instance, in an article entitled, Experts in Mechanisms of Injury, Biomechanics Expert, Dr. Dennis Andrews, BSOSH, MSOSH, PhD, explains that seatbelt injuries must be described to the jury in two ways: (1) the mechanisms and forces causing the injury and (2) the injuries themselves (cuts, lacerations, bruises) in detail and their locations identified.

Considering the wealth of knowledge Biomechanics Experts can bring to an injury case, it is no wonder why the demand for their services has grown so drastically over the last decade.

See Biomechanical Engineering Expert Witnesses and Consultants on Experts.com.

ConsultantsExpert WitnessiPhone App

Experts.com iPhone Application

The FIRST of its kind for the iPhone, the Experts.com Application provides Users worldwide an Efficient, Effective and Economical way to find and retain the most knowledgeable Experts and Consultants for litigation, business consultations, new business development, research projects, breaking news and other projects.

Customer Ratings

Current Version: ★ ★ ★ ★ ★ 114 Ratings
All Versions: ★ ★ ★ ★ ★ 143 Ratings

FEATURES:Experts.com iPhone

The App lets you:

  • BROWSE by Category of Expertise the qualifications and contact information of the Experts listed in each Category. There are over 1,265 Categories of Expertise, ranging from Accident Investigation & Reconstruction to Zoology.
  • FIND the right Expert by searching Keywords, Name, Company, Address, State, or Country. The Search Function is dynamic and robust. You can use one Search Field or a combination of Search Fields. Using Search Filters, you can broaden or narrow the search using: All Words – Any Word – Exactly.
  • MANAGE Referrals \ Requests For Experts using the SynapsUs Management System. You can (1) track each Request For Experts separately, (2) review the Experts matched to that Request, (3) view the contact information for the User initiating the Request For Expert, (4) communicate back and forth with one or multiple Experts, and (5) log each communication.
  • PERSONAL search assistance. Let Experts.com do all the work. Fill out the Request For Experts Form or Request For Information, or simply email us or call us, and our staff will Complete the search for you.
  • APPLY for Membership. If you are not already a Registered Member, you can begin the process by submitting a Membership Application.
  • REGISTER as a User. The User Account will be established once the User Application is submitted.

Download The Application At your iPhone App Store:

App Store Keywords: Experts.com \ Experts \ Experts and Consultants

Expert Witness

Expert Witnesses & Consultants – Books, Peer-Review Articles & Papers

For Expert Witnesses and Consultants, there is great value in writing articles and books.  For many, books, peer-review articles and papers are a natural progression in the acquisition of knowledge.  It may be something new for others who have already acquired a great deal of information on a certain subject.  In any case, publications are solid evidence of an Expert’s knowledge in his field of expertise.  As such, including a list of publications on an Expert’s Curriculum Vitae is an excellent way to increase credibility.

In addition to credibility, publications help to garner attention.   Many attorneys rely on the Internet to find articles or papers on subjects specific to their cases.  If an Expert’s name is attached to the article, it follows that the attorney has found her Expert Witness for the case.  For example, if an attorney is doing a Google search on mold and he uses the search terms “mold exposure experts”, Expert Witness, Dr. Joseph H. Guth’s, article, “Mold Exposures Need Better Medical Responses,” appears No. 1 out of 4,540,000 results (link from Experts.com)*.  In a search using the phrase “motor vehicle experts,” Experts.com member, Dr. Irving Ojalvo’s, article, “Optimizing Your Use of Motor Vehicle Experts,” is No. 1 out of 6,230,000 results.

Although one may hold himself out as an Expert Witness or Consultant, the depth of his knowledge is not always apparent. Case scenarios and case studies are an excellent way for those looking for higher knowledge to apply a specialty to specific factual situations.  These case scenarios can be linked to an Expert’s or Consultant’s website or made readily available to anyone looking to retain him for his services.

Caveat:  All writings are discoverable and can be used in depositions and in court.  If  an Expert understands his area of expertise, then there should be no problem with this, however, remember to be consistent and factually correct.

*Though the number of Google results may change daily, the article’s appearance remains No.1.

Expert Witness

Expert Witness Directory vs. Expert Witness Broker – Where’s the Value?

There is no doubt that the Expert Witness Broker Model is lucrative.  For the longest time, it was the fallback model for the rolodex and word of mouth referrals.  Indeed, the impetus for starting Experts.com was the lack of an alternative to this fallback model.  The founder of Experts.com, Nabil E. Zumout, Esq., started the company out of sheer frustration with a broker that his firm relied on for years.  It was the broker’s inability to find a specific Mortgage Practices Expert and failure to communicate promptly that drove Mr. Zumout to search other sources, including the Internet.  What he found was immediate, direct contact with highly knowledgeable experts.

In this day and age, it is difficult to imagine a world without the Internet.  Fifteen years ago, however, the information available on the Internet was scattered and accessibility was limited.  As Information became more accessible, the need to have someone broker access to it diminished drastically.  Given that Experts can publish their expertise on the Internet and make it accessible to those who seek it, the more relevant question is whether the Broker Model provides an added value for attorneys that Directories do not?  If so, what is that added value truly worth?

The answer, in most cases, is no they do not.  Any value added early on in the engagement and selection process does not merit the 30% mark-up in fees that is tacked on to every hour billed after the selection and engagement of the expert is completed.  How can you justify a $30,000 commission on $100,000 in Expert Witness fees, especially if you could have found the same Expert for free?

The reason that the Broker Model continues to be successful is that attorneys are slow to change and have not yet been educated as to the benefits of the Directory. It is our job to make them aware, but it is becoming much easier with the new generation of computer-savvy, financially-conscious, Internet-connected generation of attorneys and paralegals in the market.

Many Expert Witnesses and Consultants can be found in both venues.  When a lawyer knows he can find the same highly-experienced Expert in a Directory as with a Broker, why would he ever pay for the Broker’s services?  We cannot speak for all Directories, but at Experts.com, when asked to search for an Expert, we, like Brokers, screen Profiles and CVs.  But, as with Brokers, this is cursory and it always falls to the attorney to do his due diligence in qualifying an Expert.  Anything less would be malpractice.  Again, what is the value the Broker offers that the Directory does not?

From the Expert’s perspective, joining a Broker seems like a no-brainer.  For no charge to the Expert, the Broker will gladly add his CV to its bank of CVs on file.  When the Broker receives a request from an attorney, he can select a few for the case even though many may qualify.  Regardless of the criteria the Broker uses to select the Experts, the Experts are not involved in the selection process.  The Broker model does not allow all of the qualified Experts to put their best foot forward for each case, negotiate their own fees or even have contact with the attorney until the investigation stage.  The true cost for the Expert is lack of control when it is most important.

These are troubled economic times and it simply does not make sense to pay for something that can be had for free. What we offer attorneys at Experts.com is an efficient, effective and economical way to locate Expert Witnesses and Consultants. What we offer Experts is an efficient, effective and economical way to market and broker their own expertise.

AdvertisingConsultantsExpert WitnessMarketing

Expert Witness & Consultant: To Advertise or Not to Advertise?

At the risk of sounding self-serving, we do believe that the following information should be shared with Expert Witnesses and Consultants for their benefit as well.

The age-old argument of whether it is best to advertise in lean or lucrative times has definitely been put to the test these last few years.  Those who understand the marketing industry would tell you that there should always be money in the budget for advertising.

Some Expert Witnesses and Consultants claim that they have so much business that they don’t need to advertise.  To this, great caution is advised – unless, of course, they have the all-knowing crystal ball.  As we already know, business is never static.  The engagements that one may be working on now will come to an end and there is no guarantee that the same profitability or source of income will return.  Confucius was not a lobbyist for the advertising industry, but in his timeless wisdom, he did profess that it was necessary to, “Dig the well before you thirst.”

The same holds true for the lean years.  Yes, budgets will be tighter and reasonably so.  It has been said, however, that if you are not advertising your business, you’ll be advertising that you’re out of business.  The Experts who spend a little to get their names out there have a better chance of making more during hard times.

Internet Marketing:   In his book, The New Rules of Marketing and PR, David Meerman Scott says that, “…Web marketing is about delivering useful content at just the precise moment that a buyer needs it.”  He goes on to say that advertising content must be built specifically for niche audiences, in this case, attorneys, the media, businesses or anyone in need of higher knowledge.  Expert Witness Directories target this specific niche.

Which Expert Witness Directories to Choose:  There are many different Expert Witness Directories out there.  Where to spend marketing dollars is a tough decision. Here are a few things to consider:

  • The Directory Should Be “Free” To The User
  • The User Should Not Have To “Sign In'” To Use The Directory Services
  • The Directory Should Be User Friendly
  • The Expert And Consultant Profiles And Contact Information (and possibly CVs) Should Be Visible To The User
  • The Directory Should Advertise In Legal & Business Venues
  • The Directory Should Not Broker Your Engagement Or Take A Referral Fee*

As it is part of growing and sustaining your business, advertising should be taken seriously and done professionally.  If done properly, it can be an affordable and effective way to help protect against hard times and maintain profitability in good times.

*It is our opinion that Expert Witnesses and Consultants should have direct contact with the client and control over the negotiation of their fees and services.  Fee mark-ups cost law firms more for Expert Witness Services, and, in this troubled economy, they are less likely to pay unnecessary fees.  Experts and Consultants end up pricing themselves out of the market with the mark-ups that brokers impose upon them.  Experts.com DOES NOT broker or mark-up the fees of its Expert Witnesses and Consultants.

ConsultantsExpert Witness

Expert Witness or Expert Consultant?

What is the difference between an Expert Witness and an Expert Consultant?  Not much, really.  The former avails himself to the legal system and is willing to go on record in a court of law. The latter, though he may offer his particular knowledge in this arena, does not testify and is not subject to the more stringent laws of Evidence that are imposed upon Expert Witnesses.

Merriam-Webster defines a Consultant as, “one who gives professional advise or services: expert.” A Consultant must have a special kind of expertise that can be transferred in a relatively short time. For the purposes of a law suit, the Consultant is usually retained early in a case to determine if there is cause of action or a need for an Expert Witness.  The Consultant’s greatest value is that his work is not subject to discovery. For this reason, many attorneys retain both a Consultant and an Expert Witness.  They must, however, be isolated from each other so the Consultant’s advice is not compromised.  A Consultant’s litigation support can be invaluable and worth the cost.  He can aid in preparing complaints, note defenses to a cause of action, and help with deposing the opposition’s Expert Witness.

No matter what the field of special knowledge, it has been said that Consultants should spend three days a week on average doing actual consulting, one day a week on marketing, and one day acquiring new knowledge, so that they continue to update the value that they provide.  Should Consultants market in the same venues that Expert Witnesses do? Absolutely. Since attorneys, businesses, the media etc. are savvy and know that they must do their due diligence, they mainly search for higher knowledge in Expert Witness Directories.  This is the same place that Consultants should be found.  If categorized and published properly, a Consultant’s Listing on an Expert Witness Directory can be an instrumental part of any online marketing budget.  Examples of Consultant Listings.

In closing, perhaps the title of this blog should have been, “Expert Witness AND Expert Consultant,” as there is definitely a place for both in the law.

Expert WitnessTestimony

Expert Witness Experience – How Much Is Enough?

Federal Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.”  How much experience is enough has arisen  as a very controversial issue for Expert Witnesses.  Do more experienced experts give more accurate opinions? Are they more competent to testify?

According to Stanley L. Brodsky, in his book titled, The Expert Expert Witness, “…studies have shown that it is not the amount of experience that is central to doing a good assessment, but rather, it is how skilled the assessor is and how well he or she chooses and uses measures of the issues at hand.”  He goes on to say that if the issue of experience is brought up in a deposition, the argument can be made that many people have worked for years in a certain field yet remain marginal at their jobs.  Others can work for a just a short time and be extremely proficient.

Most people remember the scene in My Cousin Vinny where the out of work hairdresser/ girlfriend, Marisa Tomei, qualifies as an Expert Witness because her grandfather, father and brothers were mechanics and she grew up in  a garage doing tune-ups, engine re-builds, transmissions, brake-relining, etc. Now in theory and movies, this is all well and good and Rule 702 may be satisfied, but the courts have set more stringent limitations on Expert Witness qualifications.

Without going into an in-depth analysis, the Daubert Rule (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) and it’s progeny established five criteria in determining the validity of an Expert Witness:

1. Has the Expert’s technique been tested?
2. Has it been subjected to peer review and publication?
3. What is its known or potential error rate?
4. Are standards controlling the technique in place and maintained?
5. Is it generally accepted in the relevant scientific community?

This generally relates to the scientific community, but if the testimony given by an Expert Witness does not meet these standards, the Expert may be excluded from the case.  Take, for instance, an Expert who believes he is the most knowledgeable in the field of UFOs and who is called upon to testify that UFO emissions caused an increased rate of cancer in a community.  Unless it is generally accepted that flying saucers exist and that they cause cancer, the Expert’s testimony may be considered “junk science” and the Expert would be disqualified from the case.

Again, it is not the number of years that qualify one as an Expert.  Those new to Expert Witnessing should not be intimidated if they lack experience.  However, they must satisfy the rules governing the admissibility of Expert Witness testimony and have an acute understanding of the issues on which they are to opine.

DepositionExpert WitnessTestimony

Expert Witnesses – Practical Guide to Smart Business Practices

Expert Witnesses have been burdened by issues that hinder their ability to both perform and receive compensation for their performance.  This post is a simple but practical guide to help Expert Witnesses overcome a few obstacles related to their work and help them become more efficient and effective .

Fee Collection. Perhaps the most problematic issue for Experts is collecting fees. There are many ways for this to become an issue. The attorney may fall behind in payments, may want to pay less if a settlement is smaller than anticipated, or may not want to pay at all if the case is lost.

  • Get a written agreement which includes all of the terms and conditions and any consequences for failing to comply. In an article for Expert Witnesses, appellate lawyer, Aaron R. Larson, writes, “Your agreement with the attorney should specify that you may decline to perform additional services if the attorney has not paid your fees for prior services. “ This will allow for more security once the attorney engages the Expert. More time can be focused on the issues of the case rather than how and when the Expert will be paid.

“Hired Gun” Syndrome:  Disparaging remarks made by counsel as to the ethics of Experts Witnesses has always been a bane to the practice. Merriam-Webster’s Dictionary defines a hired gun as, “an expert hired to do a specific and often ethically dubious job.” Credibility should be the number one priority. Here are two ways to protect your professional integrity:

  • Prior to engagement, tell the attorney that your opinions will be based on the facts of the case and your testimony will not be compromised by the attorney’s desired outcome of the case.
  • Perception is everything. If an Expert only testifies on behalf of either plaintiff or defense, than the Expert risks the perception of being a hired gun.

Depositions and Trial Testimony

  • Legal Issues – Have an understanding of the legal issues in the case. Regardless of your expertise, the legal issues may vary from case to case. For example, a Biomechanics Expert may have to opine in a case regarding an injury. This injury may be negligent or intentional. In such a case, it is important to differentiate between the two legal causes of action.
  • Do Not Interrupt – In order to have an accurate record, allow each person to finish before you speak.
  • Silence Is Your Friend – Only answer the questions asked. Never offer more information than is required. If counsel asks a “yes” or “no” question, only answer with a “yes” or a “no.” Do not add fluff to fill the silence.
  • Think Before You Speak ­– Take time to form an answer before you begin speaking. It is better to pause and be comfortable in the silence than to give an unsupported answer. If you do not understand the question, ask for clarification.
  • “I Don’t Know” – If an Expert is caught off guard with new or hypothetical facts that have not yet been analyzed, it is better to answer, “I don’t know,” rather than state an unsubstantiated opinion that can damage the case.
  • Check Your Ego at the Door – Experts are most effective when they are likeable! An Expert is more likely to be persuasive if they are well-liked.
  • Simplicity is Key ­– Make complex explanations understandable.
Expert Witness

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

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.