Tag: nick rishwain

Criminal JusticeJails and PrisonsLitigation

MDC Brooklyn – Prison Expert Witness on Policies During Freezing Temperatures

On Friday night, February 2, 2019, my Twitter feed exploded with news of the “power outage” at the Metropolitan Detention Center, Brooklyn. There were protesters and news stories trending about inmate health and safety.

It appears the New York Times broke the story, with the headline “No Heat for Days at a Jail in Brooklyn Where Hundreds of Inmates Are Sick and Frantic.” The frantic nature of the story was certainly increased by the protesters outside the facility advocating for inmate rights. Additionally, we were at the tail end of an incredibly cold week, referred to as the “Polar Vortex.” So, the stars had aligned for an uncomfortable and scary incident for those incarcerated. I’m certain I’d experience fear in the same circumstance.

As the New York Times reported, most of the accounts were described to them by Federal Public Defenders who represent the inmates. The inmates were limited in communication with the outside world, but were able to communicate with defense counsel in some instances. It appears heat was the primary complaint, although there were claims of limited hot water access.

In the article above there seems to be a disagreement between different stakeholders (i.e. warden, union officials, public defenders, and inmates) as to whether there was an electrical or heating problem and which one was causing the problem. For our purposes, the cause of the event does not matter. We’re interested in response.

On Monday, February 4th, a lawsuit was filed against the Federal Bureau of Prisons (FBOP) and warden, as described in this article from NBCNews, “claiming the jail kept inmates in “inhumane” and unconstitutional conditions during a dangerously cold week.”

Did you expect a lawsuit would not be filed? This is a legal blog. Of course a lawsuit was filed. Many questions arise. Was the treatment inhumane? Was it as frigid in the facility as reported? Did prison officials fail to provide humane care? It is hard to say from the publicly reported facts. We are unlikely to know, until a FBOP investigation is completed and/or discovery made public.

Nevertheless, I thought it would be helpful for us to get a better understanding of jail and prison policies and procedures from a correctional expert witness.

Jail Management Expert Witness Donald Leach:

Donald L. Leach, II, is a Jail / Corrections Management expert with over 30 years of experience. He has 20 years of consulting experience on jail management issues nationally, focusing on Risk Management for jails and jail operational methodology. Mr. Leach has served as an expert witness for 5 years, in both State and Federal court. His services are available to counsel for both Plaintiff and Defense and include case review, testimony, and consultation for jail and prison issues. You can learn more about his practice at: https://www.dlleach.me/.

As I often do, I posed several questions to Mr. Leach, and he provided answers to those questions. I have posted them verbatim below.

Nick: Are there health and safety requirements for jails/prisons when experiencing inclement weather?

Mr. Leach: The same requirements for providing humane living conditions exist regardless of weather. The Court has not specified what those conditions have to be, unless addressing an individualized case, but they have to fall within a general range of adequate conditions of confinement. This is in a normal situation. When inclement weather, such as the cold hits, then more leeway is typically given because it involves a relatively short period of time.

Nick: Do jails/prisons have policies and procedures in place for responding to a loss of electricity/heat?

Mr. Leach: More likely than not, FBOP has policies and procedures for managing the loss of electricity and heat. These are generally short-term events and are addressed as such. A close reading of the news articles coming out indicates that while conditions may be unpleasant they are far from life threatening. Depending on the facility design, adequate light may be obtained from natural sources-such as daylight. Evening hours may involve the use of lanterns placed in common areas. Again, these are typically short term events and like you address them when the lights at home go out, jails and prisons have similar policies. Additionally, I would be surprised to find that there are no emergency generators that provide general lighting and power life safety systems.

Nick: Assuming a lack of heat and electricity occurs in a jail/prison, while temperatures outside are below freezing, how should correctional personnel address the issue?

Mr. Leach: I would recommend issuing extra blankets, sheets. If additional clothing is available for issuance, provide that. If the weather has not significantly impacted commerce, then possibly an emergency purchase of thermal tops and bottoms. Extra materials would be issued to the female inmates who seem to suffer from the cold more than the males.

Nick: There were concerns about certain at-risk inmates (elderly and those with medical needs). How would you address medical concerns in a similar situation?

Mr. Leach: The administrator may have to consider temporarily transferring those inmates to neighboring facilities. We would do this on a regular and common enough basis, lasting only until the situation is rectified. Agencies will typically work together to overcome these situations. Today it’s freezing temps but tomorrow it may be plumbing!

Nick: Based only on the publicly available reporting (i.e. NYTimes & ABAJournal), what recommendations would you have for other institutions who may face similar issues in the future?

Mr. Leach: There has to be some prior planning for emergency situations such as this. A general outline of actions to take would be appropriate. The details would be decided based upon available resources and issues. For example, you can plan on transferring the elderly and medically fragile but what if the roads are closed. Keeping a stock of emergency supplies, such as extra blankets may be appropriate, or in dry areas it may be pallets of water. This is going to be geographically determined.


There it is folks! I’ll try to be ahead of the curve on the next major story to likely result in litigation.

 

 

 

 

Expert WitnessLawyersMarketing

Creating Compelling Legal Content – Lawyers Gone Ethical Podcast

A huge thank you to Megan Zavieh, of Zavieh Law, for having me on the Lawyers Gone Ethical podcast this week.

This week, I was honored to be a guest on the Lawyers Gone Ethical podcast from California State Bar defense attorney Megan Zavieh. It was a fun, educational experience and Megan is a fantastic host!

What I was surprised to learn is lawyers are very concerned about the ethical ramifications of creating content. The fear is not dissimilar to the concerns of expert witnesses regarding content marketing.

Granted, experts are more concerned that content created to market their services may later be used against them for impeachment purposes (if this is one of your fears, check out this post from a few years ago). Lawyers, on the other hand, are more concerned with upsetting state bar regulators.

The concerns of lawyers and experts are understandable, but they are based in fear. Lawyers can add appropriate disclaimers to their content marketing materials. Experts should not be creating any video or written publications that they cannot defend. In fact, experts can add disclaimers too. For example, “the facts of each case are different. The analysis used in this article/video/blog post may not be applicable in every case.”

The bottom line: Both sets of professionals need to get over the fear and start creating interesting and compelling content. Do so after taking proper consideration of your practice and any ethical standards which may apply. But, get started!

If you are not utilizing content marketing to expand your practice, you are missing out on the ability to distinguish yourself from your competitors.

There are reasons we encourage Experts.com members to write articles. It differentiates them from their competitors, reinforces their expertise, showcases their analytical and writing abilities, and drastically increases their online visibility.

Don’t let the fear win!

LISTEN TO THE EPISODE

compelling-content

Megan Zavieh’s Contact Information:

Website – www.zaviehlaw.com

Twitter – https://twitter.com/ZaviehLaw

iTunes – https://itunes.apple.com/us/podcast/lawyers-gone-ethical/id1352001379

Stitcher – https://www.stitcher.com/podcast/megan-zavieh/lawyers-gone-ethical

Oh, and if you love how the podcast was produced and edited, you should definitely check out Abboud Media.

 

AccountingExpert WitnessForensic Accounting

Online Retailers to Collect State Taxes, per Supreme Court: Accounting Expert Insights

Today the Supreme Court of the United States (SCOTUS) ruled states can force online retailers to collect taxes on the items they sell.

The ruling gives states the power to force eCommerce and Internet retailers to collect sales tax from online purchases, even if the company doesn’t have a physical presence (i.e. no brick and mortar location) in the state. This article from CNN provides a summary of the decision. This post from Bloomberg provides greater detail.

The case originated out of South Dakota and was brought by eCommerce-giant Wayfair.com. Wayfair was arguing against a South Dakota law requiring Internet companies with more than $100,000 in in-state sales, to collect sales and use taxes on goods sold through their website. Naturally, Wayfair was arguing this shouldn’t apply to them as they did not have a physical presence in South Dakota.

This will be a massive blow to online retailers such as Wayfair, Amazon, Overstock, and others. On the plus side, it seems this will level the playing field for all retailers and may even encourage consumers to shop locally.

After a suggestion from friend Mitch Jackson of Jackson & Wilson, I got to wondering, what impact will this ruling have on small and medium businesses? What advice might these small and medium online retailers need to proceed after this ruling? Mitch also covered this same topic in a live video today. His show is called LegalHour.live.

As I normally do in these situations, I turn to our extensive database of expert witnesses to answer these pressing questions. In this instance, we need input from accounting experts.

Accounting Expert Answers:


Michael J. Garibaldi, CPA, ABV, CFF, CGMA, is a Certified Public Accountant licensed in New York. Mr. Garibaldi works closely with law firms and other professional service firms, manufacturing, wholesale/retail, medical, technology, restaurant/hospitality, artists and galleries, construction, and real estate clients where he is responsible for providing accounting, tax planning management consulting services, and financial reporting. You can learn more about Mr. Garibaldi’s services by visiting his website at: garibaldicpas.com.

Posing the same two questions to Mr. Garibaldi, he stated, “The issue and recent ruling is hotly contested and has far reaching implications.” Then he provided the following answers.

Nick: What impact will this have on small and medium sized online retailers?

Mr. Garibaldi: Small and medium online retailers will now have to collect and remit sales tax to the various taxing jurisdictions that they sell in. This will create a significant administrative burden to properly collect the appropriate sales tax for each jurisdiction, file the appropriate sales tax returns and then remit the funds to each taxing authority. Since there is no central taxing authority, the retailers will need to determine the specific law, rules and regulations within each jurisdiction and then timely file and remit the appropriate sales tax collected. This includes not only the states in which the retailers will be responsible to collect and remit the sales tax, but each local  jurisdiction within each state. For example, New York State has over 70 local taxing jurisdictions each with their own tax rate. This will create the need to enhance the technology utilized in processing orders, increase administrative oversight, as well as tax and accounting department personnel to file the returns, etc.

Nick: What advice would you have for small and medium sized online retailers facing the prospect of looming state laws to collect taxes?

Mr. Garibaldi: Online retailers should not wait.  They must begin to develop the systems necessary to properly collect sales tax within each jurisdiction. They should determine the systems and technology needed, design the proper procedures and be ready to implement them as soon as possible. As the old saying goes, an ounce of prevention is worth a pound of cure. Trying to collect and remit the sales tax on the fly will lead to unnecessary work to unravel what was collected and to whom it needs to be paid, not to mention the liability that comes with collecting sales tax. Business owners should take heed that this is a fiduciary responsibility so the owner(s) of the business can be held personally responsible.


Steven G. Roberts, CPA, CFF, CFE, CCI, CGMA, FCPA, is a forensic accountant and economics expert witness focusing valuation, economic analysis, economic loss measurement, forensic accounting, and fraud examination. You can learn more about his service here: veritasteam.com. He was unable to opine, but we received some initial thoughts from Dr. Wade Roberts, a senior forensic economist with Veritas:

Nick: What impact will this have on small and medium sized online retailers?

Dr. Roberts: The ruling was limited to the large online retailers. Additionally, states will have to adopt laws that specify and delineate the tax implications over the coming months/years. For businesses impacted, they will potentially compete for online business against states with more favorable tax treatment.

Nick: What advice would you have for small and medium sized online retailers facing the prospect of looming state laws to collect taxes?

Dr. Roberts: Small or medium size online businesses needing to comply with tax rules over thousands of tax jurisdictions will likely encounter added costs in the pursuit of adhering to the ruling. Businesses should determine the best tax software for their circumstance, attempting to both meet the needs of their operations, while at the same time minimizing the costs required for the added software. Many small and medium size businesses are already moving in this direction as is evidenced by the dramatic rise in Avalaro’s stock price.


Tiffany R. Couch, CPA, CFF, CFE, is Principal at Acuity Forensics, a Pacific Northwest forensic accounting firm. She has more than 20 years of experience in the field of accounting with the last 13 years focused completely on forensic accounting related engagements. Her expertise is in matters involving fraud investigation, forensic accounting, contract and regulatory compliance, internal control risk assessment, and complex litigation. You can learn more about her services at her website: acuityforensics.com.

Nick: What impact will this have on small and medium sized online retailers?

Ms. Couch: Likely cost to track the transactions and file the returns each month. There will also be a potential cost of buying software to handle this kind of tracking and reporting.

Nick: What advice would you have for small and medium sized online retailers facing the prospect of looming state laws to collect taxes?

Ms. Couch: Make sure you have a GREAT sales and local use tax CPA who can assist in ensuring you have an appropriate accounting and record-keeping system to ensure compliance. Also, don’t get behind on paying these taxes. I recommend setting aside the sales tax funds in a separate account so that the funds are available when it’s time to remit the tax.