Tag: expert witnesses

Business ValuationExpert WitnessLitigationSecurities

SEC Charges Theranos CEO with Massive Fraud – Securities Expert Witnesses

on March 14, 2018

Once considered “The Next Steve Jobs” or the “female Steve Jobs,” Elizabeth Holmes has fallen from grace and landed directly in the cross-hairs of the Securities and Exchange Commission (SEC). Today, the SEC filed a civil complaint against Elizabeth Holmes and her company Theranos, Inc. There was a separate action filed against the Chief Operating Officer, Ramesh “Sunny” Balwani.

The complaint alleges, in part:

“Holmes, Balwani, and Theranos raised more than $700 million from late 2013 to 2015 while deceiving investors by making it appear as if Theranos had successfully developed a commercially-ready portable blood analyzer that could perform a full range of laboratory tests from a small sample of blood. They deceived investors by, among other things, making false and misleading statements to the media, hosting misleading technology demonstrations, and overstating the extent of Theranos’ relationships with commercial partners and government entities, to whom they had also made misrepresentations.”

Oh the good old torts of negligent and intentional fraud and misrepresentation. Takes me right back to the first year of law school, when Nickelback was a hot new band, rather than the sad punchline of Internet memes. I digress.

The complaint goes on to allege that based on representations, investors believed Theranos had developed a proprietary medical device able to conduct comprehensive diagnostic tests from a small amount of blood taken from the patients’ finger. They also made representations that they would collect and transport these samples in order to complete the tests on their proprietary analyzer. All of this would be done more efficiently and economically than traditional blood testing labs.

According to the complaint, Theranos was only able to perform about 12 of the 200 tests they claimed they were capable of performing.

Let’s stop here and give a simple warning: If you are soliciting money from investors, make it very clear what you are able to achieve. Differentiate this from what you hope to achieve in the future. Do not mix the two. Otherwise you get into a bad area called misrepresentation, or in this case, securities fraud.

A wide variety of expert witnesses:

In complex civil litigation such as this, there is room for a wide variety of different experts. I can only imagine the SEC and Theranos are both using consulting experts at this time in preparation for a long drawn out litigation. The complaint has only been filed today, so expert disclosures are a way off. Here are a few types of expert witnesses or consulting experts I expect to see in this matter.

Corporate Governance:

Expert witnesses on corporate governance are highly likely to play a role in this case. Officers of a corporation are fiduciaries of the corporation. Holmes owed a duty of care to the company and to her investors. She is accused of misrepresentation which, if proven, would certainly violate the standard of care owed to shareholders and the company. I expect there will be significant dispute by the parties to prove she either did or did not violate her fiduciary duties.

Securities & Finance:

Several different types of experts who practice in the area of securities fraud may come into play. We are likely to see experienced Wall Street experts with a history in equity trading, proprietary trading, investment research, securities valuation, financial forecasting, venture capital and investment banking.

Some experts will probably have backgrounds in IPO’s, private equity financing, securities financing, and stock options financing.

In this area, I feel as though I can go on ad infinitum. That’s not true and it is probable one or two candidates will have the requisite expertise, described in this section, to address the finance and fraud related matters.

Economics:

Although the SEC is primarily suing for injunctive relief, they do mention the potential for civil monetary penalties. I would expect there will be some need for an economist (by both parties) to establish the value of Theranos and shares owned by Holmes and Balwani.

As I do not practice securities litigation and this is not a law review article, it is possible the civil penalties are predetermined by the Securities Act and there is no need to value the penalties other than by the trier of fact.

UPDATE:

Within hours of writing this blog post, I discovered that Elizabeth Holmes has settled with the SEC. According to Reuters, she will be stripped of her majority control of the company and will have to return millions of shares to Theranos. She will also pay a $500,000 fine and be barred from being an officer or director of a public company for 10 years. As of this update, Mr. Balwani has not settled with the SEC.

 

 

Expert WitnessMedicalToxicology

Freed Russian Spy Likely Poisoned: What experts might be used in this investigation?

on March 6, 2018

Yesterday, news broke that a former Russian spy, Sergei Skripal, and his daughter, Yulia, were found unresponsive on a park bench in Salisbury, England. News reports revealed Mr. Skripal and his daughter were suffering from exposure to an “unknown substance.”

According to an article in the Daily Mail today, “Two police officers who were among the first to come into contact with Mr Skripal and his daughter on Sunday were also admitted to hospital after suffering itchy eyes, rashes and wheezing on Sunday. Up to 10 other people suffered symptoms including vomiting.” One member of emergency services remains in the hospital as of this writing. Mr. Skripal and his daughter are both in critical condition. The substance remains unknown.

Of course, this instance immediately reminded me of the 2006 poisoning of former Russian spy Alexander Litvinenko. Mr. Litvinenko’s tea was laced with a radioactive material known as polonium-210, causing sudden illness and hospitalization. He died approximately three weeks later. UK inquests have determined the Russian Federation was responsible for Litvinenko’s assassination.

From reading a bit about both of these matters, I begin to understand that Russia does not take kindly to turncoats. They are also very brazen in their efforts to eliminate enemies of the state.

Reading about the potential poisoning of Mr. Skripal got me thinking about the types of experts that would be used in the investigation and possible criminal or civil actions related to this assault.

HAZMAT & Emergency Services:

Images from multiple news stories show a HAZMAT response to decontaminate the area from exposure to the “unknown substance.” I am unfamiliar with different levels of hazardous material responses, but I imagine HAZMAT experts will be required to help investigators determine the type of substance based on their response. It appears the immediate area around the bench, first-responders, and a restaurant in Salisbury are all being decontaminated.

There is no evidence of a large-scale quarantine nor is an entire block cordoned off. So, it appears HAZMAT believes the chance for further exposure to the community is limited. Such a response likely eliminates the threat of certain chemical or biological contaminants which could result in greater danger to the community.

Nuclear, Chemical, and Biological:

The post from the Daily Mail tells us, “Tests on the substance involved are being carried out at the defence research centre at Porton Down.”

There must have been evidence of the substance available at the scene allowing for samples to be taken for testing. Based on the previous assassination of a former Russian spy using radioactive materials, one can conclude nuclear scientists will be vigorously investigating the substance for radioactivity.

Since Scotland Yard’s counter-terror investigators are involved, it is reasonable to assume chemists and biologists will also be conducting tests on the substance.

A Toxicology Investigation:

I know most of us in the legal community think of forensic toxicologists being needed to detect drugs in a person’s system. Usually we see the use of toxicologists in a DUI, employment, or toxic tort related matter.

We don’t normally think of the need for toxicologists in an assassination or attempted assassination. However, if we remove the international intrigue from the equation, we are simply left with murder or attempted murder. Therefore, investigators will need to know the impact of the substance on Mr. Skripal and his daughter.

The Daily Mail noted, ” Emergency services initially believed Mr. Skripal and his daughter had taken fentanyl, a synthetic opioid that is up to 100 times more potent than heroin that has caused thousands of deaths among drug addicts worldwide.”

A toxicological investigation of the Skripal’s will be necessary to help determine the substance used to either drug or poison them.

Conclusion:

It is too early to conclude anything. Until we know more about the substance, we cannot identify the most appropriate experts to assist in the investigation. As the substance appears to be unknown as of today, we can only suspect UK authorities will employ all of the above during their investigation.

Should this incident turn into a murder investigation, we are likely to see several of the above experts testifying as expert witnesses.

Crisis ManagementExpert WitnessSchool Security

School Violence, Safety and Security – Expert Witness Perspectives

on February 28, 2018

There is no easy way to begin a discussion on school violence, safety and security. As such, I will just delve right in. I have no desire to get into the political fray with regards to gun control or mental health awareness. Further, I do not have a cadre of expert witness writings to choose from on related topics. The result is a blog post where I’ve gained a slightly better understanding of the safety and security issues facing administrators at educational institutions throughout the United States.

Let me start with a little background. When I was a child, my hometown of Stockton, California, was thrust into the national spotlight after a horrendous school shooting commonly referred to as the Cleveland School massacre. This was one of the first mass school shootings to occur in the nation. The perpetrator, Patrick Purdy, took aim at the Cleveland Elementary School playground where he fired over 100 rounds of ammunition, killed five children, and wounded 30 other students and a teacher. Purdy then turned the gun on himself.

Fast forward to the mid and late 90’s, I remember lockdown drills during my high school years. At that time, I seem to recall they were generally related to someone threatening to do harm to students or faculty. During high school, I can recall only one or two instances where we had to actually lockdown the school for any period of time. No incident stands out as particularly frightening or noteworthy. I cannot recall an incident where I ever felt in danger, other than occasional gang-related disputes. Those disputes were generally directed at rival gangs.

If we jump ahead another twenty or so years, we are now dealing with regular incidents of school violence. Not just gun violence, but physical altercations, bullying, stabbings, hostile parents, angry teachers, current students, former students, and more.

With all this in mind, I decided to start reading some articles, by experts and available on Experts.com, to see what might be done to improve the safety and security of school facilities. The following is what I found:

Safety & Security

In reading several articles by member Dr. Edward Dragan, I found that he often restates some similar comments about school liability. It is summed up as such, “Schools, after-school programs, summer camps, Sunday schools, daycares and other agencies that supervise children are responsible for student safety of children in their care.” With this in mind, schools need to have policies, procedures and protocols for protecting the children in their care.

After reading several articles, it does appear difficult for schools and school districts to avoid liability when children are injured due to violence. The schools are put in a difficult position of protecting children while simultaneously trying to avoid liability. In my research, it seems that schools are often found liable even when it appears they did everything in their power to prevent injury. So, what are some of the things they should respond to in order to protect children and also attempt to avoid liability?

Responding to Terroristic Threats

As Dr. Dragan points out in an article on terroristic threats, “The standard of professional care and legal standards for determining what constitutes a credible threat are contradictory and confusing. Until the U.S. Supreme Court defines a common standard, various contradictory lower court opinions will persist.” He goes on to use Pennsylvania law defining a terrorist threat as a “threat to commit violence with the intent to terrorize another person, to cause evacuation of a building, or to cause serious public inconvenience…”

I’m immediately reminded of students discussing calling in a bomb-threat in order to get out of an exam. I don’t know of anyone who ever used the method, though I recall students liking to joke about it in high school and college. In our current environment, it is far less humorous.

Dr. Dragan uses the School District of Philadelphia as a good example of how students and administrators should respond to terrorist threats.

  • Staff members and students shall be made aware of their responsibility for informing the building principal about any knowledge relevant to a possible or actual terroristic threat.
  • The building principal shall immediately call 911 and follow the district’s crisis plan after receiving a report of such a threat.
  • The principal shall react promptly to this information and knowledge, in compliance with state laws, regulations, and procedures established with local law enforcement.

It should go without saying that depriving or disrupting a child’s education in order to protect the student is most definitely worthwhile.

Lockout & Lockdown Drills

Until reading this article by member James Francis, I did not realize there were distinct drills. In my own experience, we only ever practiced a lockdown drill. It turns out there is more than one drill and the terminology may be a little confusing.

According to Mr. Francis, “Lockout recovers all students from outside the building, secures the building perimeter and locks all outside doors. This would be implemented when there is a threat or hazard outside of the building.” The lockdown protocol is different. It requires “locking the classroom door, turning off the lights and placing students out of sight of any corridor windows. Student action during Lockdown is to remain quiet. It does not mandate locking outside doors.”

I had to summarize the difference as such:

  • Lockout = locking perimeter doors.
  • Lockdown = locking classroom doors and remaining out of sight.

You could see where one is used for an external threat or hazard and the other is when the threat has entered the school grounds. Mr. Francis explains lockout is not just necessary for a school shooting situation, but imagine a dangerous dog is loose. On a rare occasion we get mountain lions in our area and a lockout might be appropriate where the school is contained in a main building or a couple buildings. At my elementary and high schools, where the buildings were spread out, we would have been required to lockdown in the event of a mountain lion. To be fair, there is less of a “jumping the fence” hazard with most dogs.

Mr. Francis further explains there have been confusion of the lockout v. lockdown terms. Schools and first responders have reacted inappropriately by conducting lockdown drills when a lockout would have been the appropriate response to a neighborhood or community threat.

As I read this article, I couldn’t help but think maybe a change in terminology is more appropriate so administrators, police, and other first responders are on the same page. “Close-out” might be an appropriate replacement for “lockout.”

Emergency Planning

From what I’ve been reading, emergency planning and response are massively complex topics. Even for me to write about it briefly, I’ve had to undertake some pretty serious research.

Our member Bo Mitchell has written extensively on both topics. His experience with companies and campuses is that they need to have an emergency plan for “all-hazards.” It cannot be an active-shooter plan only. As he states in this blog post, “Your plan has to be all hazards. Not just fire, but severe weather, active shooter, roof collapse, assault in your parking lot—any and all foreseeable circumstances—as the lawyers say.” All-hazards planning requires employers (including schools) be prepared for all man-made and nature made crises.

This seems extreme, does it not? How can a school or school district be prepared for all crises? In my mind, it is impossible to be prepared for all crises. One-hundred percent safety and security is unattainable. That should not prevent schools from taking all necessary steps to implement an emergency plan when a crisis occurs. Preparation and anticipation of all contingencies may limit damage or injury sustained during a crisis.

According to this pundit, it is foreseeable that a troubled student would pull the fire alarm, evacuate a school, and shoot at students and teachers during the “fire evacuation” process. This appears to be what happened in Parkland, Florida two weeks ago. After reading post by Bo Mitchell, it appears educational facilities will need to be prepared for this contingency and be able to respond.

For some detailed information on emergency planning, I recommend viewing Bo Mitchell’s 10 Commandments of Workplace Emergency Training.

Emergency Response

Assuming you have done your job in preparation and planning for all potential emergencies, what is your response when a crisis presents itself? As active shooter situations are top of mind, we will continue using this example. On his website, Mr. Mitchell indicates, “No court or government agency will find you—as an employer—at fault for failing to stop crazy. What every court and government agency does expect is that every employer know how to respond to crazy.”

He further explains that the negligence issues employers and schools face after active shooter situation is failure to plan and failure to train. If you have not properly planned and trained for the crisis, you cannot respond appropriately. As Mr. Mitchel points out, “police, fire, and EMT’s are official responders. Your employees are the first responders.” In an educational setting, that makes students first responders as well.

Therefore, schools need to create their all-hazards plans and then train students, faculty, and other staff on implementing the plan in order to mitigate risk and loss of life. Bo Mitchell describes just some of the issues you will face when training to implement an Active Shooter Protocol. I’m certain after you read this list, you will understand why training is so vital:

  • Which of your employees is in command?
  • Where is your emergency team of employees deployed to help control your response?
  • What communications do you provide to talk to your people?
  • Can you account for all your employees and visitors?
  • Where are all your people?
  • Your Lockdown procedures
  • Your Lockout procedures
  • Control of power to your facility for shutoff
  • Site map: detailed
  • Floor maps for all floors for all buildings: detailed
  • Perimeter control
  • Identifying friend from foe among your people
  • Procedures for rapid exit of your people when ordered
  • Reuniting procedures/facility after incident
  • Access to MSDS (Material Safety Data Sheets)
  • Crisis Communications Plan
  • Crisis Media Plan
  • Training
  • Drills
  • Exercises

If a school has not trained according to their plan, how will they be able to carry out their emergency response? My young staff member, Bobby Burns, has indicated to me that his high school only conducted one “lockdown” drill during his 4 year tenure. After writing this blog post, I have to assume that is insufficient training for students and faculty to put an emergency plan into action.

Crime Prevention through Environmental Design

Have you ever heard of this before? I had not until I started working for Experts.com. I had no idea there was an entire area of architecture dedicated to developing safer buildings. In one article, our Member, Dr. Randall Atlas, explains, “The basic crime prevention through environmental design (CPTED) premise is that through the effective use and design and management of the built environment, there can be a reduction in the opportunity and fear of crime, and result in the improvement in the quality of life. If we can build effective spaces using CPTED in the next generation of schools, we will substantially reduce the opportunity and fear of crime in them.”

Schools should be accessible to students, faculty, and other employees, while also being safe and secure environments in which students can learn. Dr. Atlas has written several articles on CPTED and there is a plethora of additional information on the Internet.

CPTED takes a wide variety of characteristics into account, including: site or campus design; building design (interior and exterior); visibility from classrooms; surveillance systems and other equipment; vehicular and pedestrian observation (line of sight); landscaping; walkways (interior and exterior circulation paths); signage; handicap accessibility; and much more.

A properly built CPTED school should make a school or university a safer learning environment. This does not mean creating a prison atmosphere. It simply requires a design that minimizes and impedes security threats while being accessible to students and faculty. CPTED combines safety, security, and design to make a hospitable educational facility.

Conclusion:

This post only includes a handful of issues related to school safety and security. I have not yet touched on emergency communication systems and training with police, fire, and EMTs. Nor did I cover issues of “Run, Hide and Fight” protocol for dealing with active shooter situations.

This is meant to be a summary of school safety and security matters based on publications from our expert witnesses. What I have discovered is that making schools safe is a major undertaking and nothing I have read demonstrates 100% safety is achievable.

Nevertheless, we should continue to learn and work to make our schools an inviting and safe environment for future generations.

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LegalTech and Access to Justice: Panel at The ABA GPSolo/GLSA Spring Meeting

on December 26, 2017

As 2017 comes to an end, I am looking at what we accomplished this year and what is on our “to do a list” for 2018. There is one item I’m very excited about. I’ll be moderating a panel at the ABA-GPSolo/GLSA 2018 Joint Spring Meeting (April 25-28, 2018) in New Orleans. This is the GLSA’s (Group Legal Services Association) annual educational conference.

Legal Technology:

The panel is covering the topics of legal technology (legaltech) and access to justice. Many may wonder why I’m excited about this. If you are not in the legal or legaltech business, I understand the topic may seem dry. I’ve been working in legaltech for nearly 8 years at Experts.com and one of my hobbies includes vlogging about legal technology. I am deeply passionate about the impact of technology on the practice of law and delivery of legal services. In essence, I get to host a panel on a topic that fascinates me.

There are a lot of exciting advancements taking place in legaltech. You may have heard about topics such as artificial intelligence, blockchain, and chatbots. These subjects have been dominating legal news for the last couple of years. The innovations are very cool, at least to an admitted nerd like myself. However, our panel will not be taking a deep dive into these legaltech topics. A friend and colleague, Tom Martin of LawDroid will be at the conference and he’ll be discussing running his practice virtually while vacationing in Europe. I highly recommend chatting with Tom about chatbots and how they can help to run a lean, efficient practice as well as improve access to justice.

Access to Justice:

As much as I’d like to have a more involved discussion about the cutting edge technologies impacting the practice of law, there are less sophisticated, readily accessible technologies that can be employed by lawyers and law firms to improve access to justice. In fact, many of these technologies are already employed by legal practitioners. I’ll be hosting the panel with four actively practicing lawyers, with varying levels of technical aptitude, who are actively improving consumer access to justice.

To learn more about the magnitude of the access to justice problem, I encourage you to visit the US Department of Justice, Office for Access to Justice and this page from the United Nations and the Rule of Law.

Here is a brief breakdown of the items identified by our panel for discussion to improve access to justice within the United States:

  • Cost of legal services
  • Consumer awareness of pro-bono services
  • Time restraints for lawyers
  • Technologies used to improve access to justice

As mentioned above, you and your firm already have access to many of the technologies we’ll be discussing. It is just a matter of how the technology is used to improve consumer access to legal services.

Here are a few of the technologies we will cover:

  • Open source and cloud-based services
  • Mobile technology
  • Social media
  • Prepaid legal services

If you are a solo-practitioner looking to improve client access to justice, what would you want to learn about in this presentation?

To my friends and colleagues in the legaltech space, what other legacy technologies should be covered?

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

on November 6, 2017

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

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

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

Our Opioid Litigation Experiences:

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

Recent Litigation:

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

Civil Litigation:

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

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

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

Criminal Litigation:

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

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

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

Other Legal Issues:

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

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

AccountingComputer ForensicsExpert WitnessExpert Witness TestimonyForensic Accounting

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

on October 30, 2017

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

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

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

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

What types of expert witnesses can you expect to see?

Forensic Accountants:

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

Money Laundering / Anti-Money Laundering Experts:

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

Computer/ Digital Forensics:

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

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

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Expert Witnesses Embrace Digital Media Platforms – Interview with Attorney Mitch Jackson

on October 27, 2015

On October 14, 2015, Experts.com interviewed Expert Witness and 2013 California Lawyer of the Year, Mitch Jackson, on the benefits of Expert Witnesses embracing digital media to promote their services. To watch the interview, click the link below.

Mitch Jackson was admitted to the California Bar in 1986 and immediately opened up his own practice representing victims of personal injury and wrongful death. In 2009, Mr. Jackson was named Orange County “Trial Lawyer of the Year,” by the Orange County Trial Lawyers Association. In 2013, he received the California Lawyer Attorneys of the Year (CLAY) Award for litigation. According to California Lawyer Magazine, the CLAY Award recognizes attorneys who have changed the law, substantially influenced public policy or the profession, or achieved a remarkable victory for a client or for the public and have made a profound impact on the law. Mr. Jackson is also an expert witness in legal malpractice matters.

Mr. Jackson is an active social media influencer with a strong presence on Twitter, Facebook, Periscope, Blab, Instagram, among others. In addition to his legal practice, Mitch Jackson maintains several websites promoting: livestreaming, communication, Rotary service, and, most importantly, “Being Human.” To learn more about Mitch Jackson, his practice, and his social influence, visit the following sites:

http://jacksonandwilson.com/
http://streaminglawyer.com
http://human.social/

Experts.com was established to allow professionals a platform to showcase their areas of Expertise. Since 1994, we have been providing millions of users worldwide with access to specialized knowledge. We believe our members should have control over monetizing their specialized knowledge and expertise. In this day in age of high technology, there is no need for a broker or middle man to mark up fees or market your expertise. Put your best foot forward with Experts.com.

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Expert Witness Credibility Can Make or Break a Case

on April 29, 2015

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

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

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

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

Caution SignCaution all Expert Witnesses! Credibility is Everything.

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

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

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Expert WitnessIntellectual PropertyLitigationPatent Infringement

The Tech Industry and Litigious NPEs

on September 4, 2013

Patent InfringementIt comes as no surprise that the tech industry is the most litigated of 2012-2013. With companies such as Apple, Samsung, Verizon, LG, and Google vying for major shares of the market, competition can get fierce. For over a year, Samsung and Apple have been slugging it out over the copy and design of the iPhone’s software features. These, however, are operating companies with products and services to sell, both of which are vulnerable to fundamentally important legal counter-assertion defenses. Intellectual property litigation gets even more complicated and egregious when it is engendered by entities with no competitive products and services. The same defenses do not apply to to these entities. Even with new and pending patent reform laws in place, high tech litigation is overwhelming our court system and affecting the bottom lines of many high tech companies in industries such as electronics, communications, semiconductors, and software.

The most notable combatants in the IT litigation arena are the Non-Practicing Entities (NPEs), derogatorily known as “patent trolls.” These companies base their revenue stream solely on collecting, licensing, and enforcing patents, litigating whenever there is a threat to their patent’s market share, whether real or dubious. Although under criticism from some, James Bessen and Michael Meurer from Boston University released a highly publicized study estimating that the direct cost of NPE patent assertions is “substantial, totaling about $29 billion in accrued costs in 2011.” Although this includes patent infringement awards in all industries, high tech makes up fifty percent of NPE suits filed.

Litigation brought on by NPEs, both costly and time consuming, is difficult to defend. According to PatentFreedom, a company dedicated to assessing and addressing specific NPE risks, since NPEs “do not sell products or services (other than the licensing of their patents), NPEs typically do not infringe on the patent rights contained in others’ patent portfolios. As a result, they are essentially invulnerable to the threat of counter-assertion, which is otherwise one of the most important defensive – and stabilizing – measures in patent disputes.”

The America Invents Act (AIA) passed in September of 2011, which was meant to limit the number of defendants an NPE can join in a suit, has not curbed the amount of patent infringement litigation occurring today. The major tenet of AIA is a shift from “first to invent” to “first to file.” As such, NPEs can no longer gather all possible defendants in an effort to maximize awards. With good intentions, Congress set out to decrease the “deep pocket” syndrome, thereby reducing the number of suits filed. Although the AIA changes the economics of litigation, it has not, in the past few years, decreased the number of cases filed by NPEs. In fact, PatentFreedom estimates that, NPE  litigation against operating companies has increased by 170 from 2012 to 2013, and this is only the halfway mark. In 2012, the number of cases filed against operating companies was 4,229. So far this year, that number has increased to 4,400.

In March of 2013, the Shield Act was passed to curb the amount of egregious lawsuits brought on by NPEs. In effect, it makes NPEs responsible for the litigation costs of failed suits. However, the Shield Act requires defendants to take the suit all the way to final judgement. Since much time and resources are required to litigate these suits, most settle well before judgement. This leaves the door wide open for opportunistic NPEs.
Considering they have the right to sue, do NPEs, by their nature, have an unfair advantage over the operating companies they are suing. Considering the state of affairs today, should Congress do more to level the playing field? Only time will tell how this battle plays out.

ConsultantsExpert WitnessMarketing

Press Release – The Benefits of Distribution

on February 7, 2013

Press Releases are an excellent way to promote Expert Witness and Consulting Services. Aside from publishing press releases to a variety of print, broadcast, and online media, they can also be sent to current and prospective clients. The benefits of issuing a press release are many:

  • Perception Is Key – The idea that an Expert’s services are deserving of media coverage plants the seed that he is successful. In other words, if the New York Times  is taking space to publish a press release announcing an Expert’s or Consultant’s new book , then he must be worthy of consideration for an engagement. A press release, in essence, is mass confirmation of your achievements.
  • Third Party Endorsements – A press release issued on an Expert’s or a Consultant’s behalf by a third party is much more effective than one issued on their own behalf. Most Experts and Consultants are uncomfortable touting their own successes. By letting a third party advocate on their behalf, it takes the negative effect of self-promotion out of the equation.
  • Opportunity to Inform – A Press Release is issued mainly for a specific reason, whether for the publication of a new book, a business milestone, or a litigation success. It does not, however, have to be limited to that success. If written properly, press releases can include a short biography on the Expert or Consultant, communicating their areas of expertise and offering website links for more information on their services.
  • Maintain a Presence –  “Out of sight, out of mind.” It is important for professionals to let their current and prospective clients know that they are consistently relevant in their field of expertise. By issuing a press release, they keep their clients informed of their achievements and remain fresh in their minds for future jobs.

For more information on how Experts.com can help market your services and promote your achievements through a Press Release, please contact us at press@experts.com.

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