Tag: testimony

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Expert WitnessExpert Witness Testimony

Expert Witness 101 (Part 1): What You Need To Know

on April 16, 2024

INTRODUCTION

Have you watched any major court trials, like DEPP V. HEARD on Netflix or Casey Anthony: An American Murder Mystery on Hulu? If so, then you are familiar with a courtroom scene, the judge, jury, attorneys, and their clients. There are always witnesses, but what is the difference between a regular witness and an expert witness? Why are they necessary, and how would an attorney go about finding one? Who knows, YOU may qualify as an expert witness yourself but you just don’t know it. In this blog post you will learn if you have the qualifications and, if so, how to establish a new source of income.

Fair Trial or Deposition for Expert Witness

WHAT IS AN EXPERT WITNESS?

Expert Witness Definition

The significant benefit of this industry is that anyone can become an expert witness! According to Federal Rule of Evidence 702, “An expert witness is a person with specialized knowledge, skills, education, or experience in a particular field who is called upon to provide their expertise in legal proceedings to assist the court with understanding complex, technical, or scientific issues.” Attorneys serving the plaintiff and defendant can both hire expert witnesses and pay them for their testimony and consultation. The expert witness must also qualify under specific FRE 702 criteria to certify their testimony is “relevant” and “reliable.” As of December 1st, 2023, the amendments to the federal rule have gone into effect (photo credit – Perkins Coie):

Amendments for FRE R 702 Expert Witness Testimony

Proskauer similarly describes the new language added by the amendment as:

  1. A court may not admit expert testimony unless the proponent establishes its admissibility by a preponderance of the evidence.
  2. A court must find that an expert’s opinion follows from a reliable application of the methodology to the facts at issue before that opinion is heard by a jury.

Business Consultant Definition

Some experts choose not to work in litigation. They do not want to subject themselves to the possibility of grueling questions or contentious court proceedings. These professionals would be considered Business Consultants or Consulting Experts. They receive payment for their assistance in a settlement or mediation. These experts act in the same way as Expert Witnesses, but they do not testify in trial or present evidence to a court. 

How Much Experience Do You Need?

Unfortunately, a straightforward answer to this question does not exist. It is relative to your chosen industry. For instance, experience in the medical and engineering fields vastly differs from experience in more creative and less analytical fields. However, that is not to say one industry is superior to the other purely based on years of experience. Comparing experiences to others is like comparing apples to oranges; it can not be done. Ultimately, as long as you qualify under Federal Rule of Evidence 702, or the applicable state test, then you can be an expert witness.

Movie: My Cousin Vinny

One of the most unexpected yet hilarious examples of expert witness testimony is from the movie My Cousin Vinny.

Vinny Gambini, played by Joe Pesci, a fairly new street-smart lawyer from New York who’s prone to verbal shenanigans, accepts the opportunity to defend his cousin accused of murder. During the trial scene he puts his girlfriend, Mona Lisa Vito, played by Marisa Tomei, on the stand. From her looks (sequin sweater, short leather skirt, and bright red lipstick), one wouldn’t expect her to be qualified to testify about cars, a pivotal aspect of the case. It turns out her expertise stemmed from her practical experience working in her father’s garage since childhood. Mona Lisa’s hands-on knowledge of cars, engines, and automotive mechanics helped her analyze the tire marks in the scene.

I will spare the rest of the details to avoid revealing any spoilers. While the movie is fictional, the testimony scene is possible at a judge’s discretion. Here is Mona Lisa’s expert witness testimony scene from My Cousin Vinny.

EXPERT WITNESS TESTIMONY CRITERIA

The Daubert Standard

The court has a systematic framework to assess the relevance, validity, and reliability of expert witness testimony before it is presented to the jury. The Daubert Standard grants trial judges the responsibility to be “gatekeepers” of scientific evidence and aims to mitigate their reliance on an expert’s reputation and credentials. Lastly, all Federal Courts use the Daubert Standard. Some states may use the original framework, the Frye Standard.

From the Daubert Standard, trial courts use these five factors to prove the validity of expert witness testimony and methodology:

  • Whether the technique or theory in question can be, and has been tested.
  • Whether it has been subjected to publication and peer review.
  • Its known or potential error rate.
  • The existence and maintenance of standards controlling its operation.
  • Whether it has attracted widespread acceptance within a relevant scientific community.
Expert Witness Testimony

PARTING WORDS

To summarize, becoming an expert witness is not a complicated process. An expert witness is responsible for objectively opining on the facts of the case using industry knowledge to support their testimony. The law offers guidelines to ensure you qualify as an expert witness to secure valid and unbiased testimony from legitimate professionals. Becoming an expert witness or a business consultant builds credibility and expands business and networking opportunities. With the requisite knowledge, you can be confident and secure in your testimony. Stay tuned for Part 2 of this blog series, which will give tips for starting your business and the best practices to do so!

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Criminal JusticeCriminal Law

A Review of the Alex Murdaugh Trial

on March 15, 2023

On March 2nd, 2023, Alex Murdaugh was convicted of killing his wife, Maggie Murdaugh, and 22-year-old son, Paul Murdaugh, at their Moselle home in South Carolina’s Lowcountry. Murdaugh was once a name with an untouchable reputation due to their affluence and connections to the South Carolina justice system for nearly a century. Now, their prestigious image and legal reign have withered. While the trial may have been the straw that broke the camel’s back for the Murdaugh’s, sickeningly, this tragedy was not the only crime allegedly related to the family. Below is a convoluted timeline of the events leading up to the trial, and a summary of the trial itself.

Welcome to South Carolina sign.

Timeline of Events (FOX News, Inside Edition, CNN)

January 2006: Randolph Murdaugh III relinquished his role as a prosecutor responsible for overseeing five counties in South Carolina’s 14th circuit district: Allendale, Colleton, Hampton, Beaufort, and Jasper. His son, Alex Murdaugh, volunteered at the solicitor’s office while simultaneously continuing his partnership with Peters, Murdaugh, Parker, Eltzroth & Detrick, a prominent personal injury law firm.

July 8th, 2015: 19-year-old Stephen Smith, a former classmate of Alex’s oldest son, Buster Murdaugh, was found dead in the middle of a road. South Carolina Highway Patrol investigated the scene and discovered Stephen’s car was out of gas, which was a mistake that occurred frequently, and the tank was open. It ultimately declared the incident to be a hit-and-run and had an autopsy to confirm the determination. However, the car was approximately three miles from Stephen’s body, he suffered severe head trauma, and he had injuries on his left arm. To add, Stephen’s family thought it was off that he did not call them for help, which was normal practice if he was stranded. The listed observations made Chief Billy Jarrell think the incident may have been a homicide.

In December, the South Carolina Law Enforcement Division (SLED) received an anonymous tip revealing Paul and Buster as potential persons of interest. While there were rumors of Buster and Stephen having a secret affair, neither of the brothers were named suspects in the incident and it remains unsolved.

February 26th, 2018: Gloria Satterfield, the Murdaugh family’s housekeeper, allegedly died from tripping over a set of stairs at the Moselle property. Her family issued a wrongful death claim ten months later but never received the money.

February 24th, 2019: Paul, who was underage, drunkenly crashed his father’s boat into a bridge in Beaufort, resulting in the death of 19-year-old Mallory Beach, whose body was found a week later. The incident also injured four other friends. It was reported that he had a blood alcohol level three times the legal limit. Paul was later charged with three felony counts of boating under the influence causing injury or death and was released on a $50,000 personal recognizance bond. A trial did not occur due to his murder.

April 2021: Maggie Murdaugh allegedly met with a divorce attorney for a consultation.

June 7th, 2021: The Moselle Murders occurred.

  • Between 9:00-9:30 P.M., Paul and Maggie Murdaugh were fatally shot outside of their family hunting property. Two different guns were fired: a shotgun was used on Paul, and Maggie was shot with an assault rifle (Daily Mail).
  • At 10:07 P.M., Alex Murdaugh hysterically dials 911 reporting he discovered Paul and Maggie’s bodies near the dog kennels. In his first statement to a deputy who arrived at the scene, Alex stated Paul was receiving online threats for his involvement in the boating accident.
  • At 11:47 P.M., SLED officers became the lead investigators of the case.

June 23rd, 2021: Considering new details regarding the Murdaugh murders, SLED reopened the cold case of Stephen Smith’s murder in 2015.

September 2021: A series of events took place.

  • September 4th: Alex reported to 911 that he was shot in the head by a gunman passing by in a truck while he was changing a tire on the roadside. Evidently, the incident happened near the Moselle crime scene. Later that day he announces his recusal from the family practice and attends rehab for a twenty-year-long opioid addiction.
  • September 6th: Murdaugh’s law firm explained his embezzlement of the firm’s finances was the basis of Alex’s departure. The partners came to this conclusion after working with a forensic accounting firm.
  • September 15th: Alex admitted to staging his own shooting as an effort to give his son Buster a $10 million life insurance policy since the money would not be provided if his death was caused by suicide. He hired a friend named Curtis Smith, aka “Cousin Eddie.”
  • September 16th: To direct law enforcement to focus on Paul and Maggie’s murders, Alex admitted to the orchestration of his roadside shooting and turned himself in after an arrest warrant for alleged insurance fraud was released.
  • September 20th: Connor Cook, a former friend of Paul, filed a lawsuit against Alex claiming he was scheming to blame Connor for the 2019 boat crash.

October 2021: Another series of events happened.

  • October 6th: Gloria Satterfield’s sons filed a lawsuit against Alex stating he misused the death settlement money. They never received any of the $4.3 million that was owed.
  • October 9th: Alex was arrested from rehab for falsely acquiring property which stemmed from Gloria Satterfield’s wrongful death settlement.
  • October 13th: Alex has been announced as a person of interest for Paul and Maggie’s murder.

From this time up until December 2022, Murdaugh has been charged with the death of his wife and son. He was also charged with nearly 100 fraud, criminal conspiracy, and drug charges for potentially running a drug ring in Colleton Country with Curtis Smith (2013-2021). SLED also announced its exhumation of Gloria Satterfield’s body, which is an ongoing investigation. Stephen Smith’s case is also ongoing, but additional information has not been made public.

Courtroom Testimony.

Trial: The State of South Carolina v. Richard Alexander Murdaugh (FOX News, Inside Edition)

The six-week trial began on January 23rd, 2023, and ended on March 2nd, 2023.

Week 1 Insight: Prosecutor Creighton Waters brought Sgt. Daniel Greene, who was at the crime scene on June 7th, 2021, to the stand. Despite Murdaugh telling law enforcement he checked for pulses on the bodies, Greene told the court Murdaugh lacked blood on his clothes and hands, and tears in his eyes.

Jurors learn the timeline of what occurred in June. Videotaped interviews reveal Alex drove around the Moselle property with Paul and ate dinner with Paul and Maggie afterward. This dinner was the final time Alex saw his wife and son. Maggie went to the dog kennels, which was a quarter mile from the house, and Paul left without stating his location. Alex took a twenty-minute nap with the TV on. He wakes up and sends Maggie texts and phone calls, only to not receive a response. A few minutes past 9 P.M., he visited his mom who suffers from Alzheimer’s at her home 20 minutes away from Moselle. Alex came home, saw the house was empty, and drove to the dog kennels to look for Maggie. He discovered the tragic scene and dialed 911 at 10:07 P.M.

Week 2 Insight: A debate between the prosecution and defense ensued over Alex’s pronoun use in a videotaped interview with SLED. Here is the following statement of contention: “It’s just so bad. I did him so bad.” The prosecution believes Alex said “I,” meaning he had inadvertently confessed, whereas the defense believed he said, “they.”

The prosecution presents the court with a pivotal piece of evidence: a Snapchat video. Paul recorded a video via Snapchat at 8:44 p.m. placing him at the dog kennels. Prosecutors said he was murdered three minutes after. There were two other voices other than Paul’s recorded in the video. Paul’s friends, Will Loving and Rogan Gibson, confirmed the male voice belonged to Alex. This confirms Alex was at the crime scene minutes before the murders despite him saying he arrived around 10 P.M. when they were murdered.

A second Snapchat video was filmed an hour before the previously mentioned Snapchat video. It portrayed Alex in a completely different outfit than what he was wearing when law enforcement arrived at the scene.

Week 3 Insight: A bomb threat was called in and caused the courtroom to evacuate. After it was proven a hoax and everyone returned inside, jurors listened to extensive accounts about Alex’s alleged financial misdeeds. They also learned Shelley Smith, Alex’s mother’s caretaker, was pressured to say he visited his mother for at least forty-five minutes. He was only there for twenty minutes. The Murdaugh’s current housekeeper also took the stand. She said Alex told her to say he wore a different shirt the day of the murders.

Week 4 Insight: Before the prosecution rested their case, Marian Proctor, Maggie’s older sister, announced to the jury Alex told Maggie and Paul to come to the Moselle property despite not wanting to go. She also alluded to Maggie’s happiness with Alex despite the imperfect marriage.

Dr. Ellen Reimer, the pathologist who performed Paul and Maggie’s autopsies, testified against the defense’s theory of how the deaths occurred (Law and Crime Network). She suggested their proposed theory would have left more damage to the bodies than what appeared.

The final witness brought to the stand was special agent Peter Rudolfski, who revealed additional information regarding the timeline of the June 7th murders. At 10:05:57 P.M., Alex arrived at the dog kennels. At 10:06:14 P.M., less than 20 seconds later, he phoned 911. Alex told the dispatcher he checked for Maggie and Paul’s pulses, whose bodies were 30 feet apart from each other. Paul’s knowledge of his father’s drug addiction, and his confrontation with Alex about the issue, were brought to light as well.

Week 5 Insight: Buster Murdaugh was a witness for the defense and testified he drove over to the Moselle property after his phone call with Alex regarding the brutal death of his mother and brother. During his testimony, the defense plays the controversial video that sparked debate three weeks ago. Buster said Alex used the “they” pronoun as opposed to “I.”

This is also the week Alex took the stand in his own trial. He admitted to lying to friends, family, and investigators about being at the dog kennels with his wife and son minutes before the time prosecutors said they were murdered. Despite having a bag of opioids on him that night, he told the court his drug addiction caused paranoia and stated his distrust of the investigators.

Week 6 Insight: After listening to the closing arguments, the jury deliberated for less than three hours and ultimately delivered a guilty verdict. Alex Murdaugh was sentenced to two consecutive life sentences without parole on March 3rd, 2023.

CNN reports the confirmation from Alex’s defense team that they will be appealing the sentencing for Paul and Maggie’s murders. The trial may have ended, but it certainly will not be the last time Murdaugh enters a courtroom. CNN states prosecutor Creighton Waters will pursue Murdaugh’s plethora of financial, conspiracy, and forgery charges.

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Law: Gender Gap in Expert Witness Work

on February 15, 2023

On June 10th, 1963, the Equal Pay Act was enacted to require men and women to receive the same pay for the same work. Over 50 years later, gender equality still dominates workplace conversation. Since the 1960s, this “pay gap” has closed significantly, so it is best to recognize progress. For some industries, however, the pay isn’t even the issue. It’s the gender, or lack thereof. In a multi-million-dollar industry with many participants, it is difficult to ignore the underrepresentation of women in the expert witness industry. 

The Financial Times stated, “Last year in the Who’s Who Legal expert witness directory, just 16 percent of the experts listed were female.” The same article also mentioned a 2020 study by PwC and Queen Mary University. Out of 180 arbitral proceedings awards managed by the International Chamber of Commerce in Paris and New York between 2014-2018, only 11% were given to female expert witnesses. This blog aims to explain why the gap exists, provides tips for those in the legal industry to encourage women to participate in expert witness work, and includes accounts from Liability Insurance Expert and Experts.com Member, Jane M. Downey, ARM, M.Ed.

Three central reasons contribute to the scarcity of female expert witnesses. The first reason is simply that it is a male-dominated industry. For instance, according to Bloomberg ABA/BNA Lawyer’s Manual on Professional Conduct, “an astonishing 80 percent of expert witnesses chosen by attorneys are male.” Considering the field has been male-centric for an extended period, attorneys are more inclined to work and cooperate with male expert witnesses. The second reason stems from the first, which is a lack of availability. The same article states “there are far more male experts to choose from in almost all specialties – with the prominent exception of nursing.”

The third reason involves gender stereotypes and roles which have always existed in our society. The Jury Expert released an article about the ways gender bias affects both male and female expert witnesses. An excerpt from the article states, “Some studies have shown that men may be more influential and persuasive than women, particularly when they occupy traditionally masculine roles.” Prejudice is more likely to surface when women pursue roles that do not correspond to their gender’s expectations (structural engineer, police policy, construction defect), which may occur on a case-by-case basis. That is not to say people should only pursue occupations limited to their gender norms. The prejudice correlates to how an expert may be perceived by juries and judges. “The degree to which the expert’s gender and the type of case agree (what researchers call ‘gender congruence’) may be important in determining whether a male or female expert will be more credible and persuasive,” The Jury Expert.

The above reasons generally explain the lack of female expert witness testimony. Individually, women have different experiences in their expert witness work. The following is an insightful Q&A with Jane M. Downey, ARM, M.Ed, regarding her experience as a female Liability Insurance expert witness:

Q: How did you discover expert witness work?

A: My first case was a referral from the President of the Insurance Society of Philadelphia. I did not like that case because it had a 48-hour Federal turnaround timeline and was very stressful; therefore, I did not pursue the work until a few years later. It was then I was approached on a massive case, and I really enjoyed the work and the team of attorneys that I supported.

Q: What was the deciding factor for you to participate in providing expert witness testimony?

A: I have always loved to write and teach.

Q: Have you faced any difficulty as a female expert witness?

A: I think being female has given me an advantage. I stand out in all the listings.

Q: Why do you think there is a gender gap in the insurance industry? Do you think it might be attributed to a lack of knowledge of expert witness work as an option for financial income or other factors like gender roles?

A: I think there is a gender gap in the insurance industry, but it is much narrower now than in other industries. To be an expert witness, you have to be willing to be confrontational. I know a lot of women who avoid conflict.

Q: How should the legal industry encourage women to consider participating in expert witness work?

A: Training, training, training. I did not realize until recently that my master’s degree in Group Dynamics prepared me for this work and my work as an insurance arbitrator.

There are initiatives in place to inspire women to consider expert witness work as a part-time or full-time job. The previous Financial Times article highlighted a campaign called The Equal Representation for Expert Witnesses. Initiated in 2015, its goal is to help women market themselves to the legal industry. According to the article, “the pledge has 4,129 individuals and 983 organizations in 143 countries as signatories.” With movements such as this, hopefully, we will see more women entering the arena of participants for expert testimony.

Ultimately, attorneys, male or female, must do their due diligence in selecting the most highly qualified expert for their case, regardless of gender. But if women are absent from the pool of experts there can be no expectation for change. With proper training and industry knowledge, women can find expert witness work to be intellectually challenging, lucrative, and satisfying. A special thank you to Liability Insurance Expert and Expert.com Member Jane M. Downey, ARM, M.Ed for taking the time to contribute to our latest blog post.

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Proposed Changes to FRE 702 Daubert Standard – Expert Witness Testimony

on March 31, 2022

It appears we’re poised to see some changes to Federal Rule of Evidence section 702 for the first time since the 2000 amendments.

In an excellent article published by Butler Weihmuller Katz Craig LLP, attorney Scott Hefner provided an excellent history of FRE 702 and a summary of the proposed amendments which if adopted by the Supreme Court, will go into effect in 2023.

Mr. Hefner provided an outstanding summary of the Daubert Standard and its codification and I encourage you to read his article for further depth. I just wanted to provide the existing rule and the proposed changes for your review, so that you and your expert witness practice can be prepared for the possible changes to FRE 702.

Existing Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. the expert has reliably applied the principles and methods to the facts of the case.

Proposed Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

For your convenience, I’ve bolded the changes in the proposed rule. In my reading, the only real substantive change is “the proponent has demonstrated by a preponderance of the evidence…” This is the standard that has always applied, but the advisory committee decided they needed to clarify the standard. Mr. Hefner’s article notes that the committee included the standard to “dispel the notion that expert testimony is presumed to be admissible.” In the years I’ve been working in the expert witness field, I’ve never known this to be presumed. In fact, since law school (i.e. as long as I can remember), the rule has always been that the court serves as the gatekeeper for allowing expert testimony.

Now, I would love feedback from readers on the other “substantive” change to section 702(d). When I look at the existing subsection and the proposed changes, it is difficult to identify how this will actually change anything in practice.

In fact, it seems Mr. Hefner and I are in full agreement on this subsection change. He even mentions, “The practical implications of the amendments remain up for debate.” To take it a step further, he quotes the Federal Magistrate Judges Association as viewing the proposal as not making changes at all but rather “largely clarifying existing practice.”

What do you think?

Do you think this proposal will have any substantive or practical effects? Let us know what you think in the comments or drop us an email at support@experts.com.

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Cancer Verdict Overturned: Trial Court did not follow Daubert Expert Witness Standard

on July 26, 2021

$117 million talcum powder Mesothelioma verdict overturned by failure of the trial court to follow their gate-keeping role.

In an article today from Husch Blackwell, they highlight a case in which a significant verdict for the plaintiffs was recently overturned by the appellate court for failures to conduct a proper Daubert analysis.

As most of our members are aware, a “Daubert hearing” or “Daubert review” is the standard used by the trial court for admitting expert witness testimony. It is the federal standard for admitting expert witness testimony, but the standard has been adopted by a majority of US states.

For your brief review, I’ve decided to add the elements of the Daubert test below, from Cornell Law School:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

There have been a wide variety of mesothelioma lawsuits against manufacturers and distributors of baby powder products. Generally speaking, the issue arises from long-term talcum powder use allegedly exposing plaintiffs to asbestos in the talcum powder which causes mesothelioma.

In my 11 years in the expert witness field, there have only been a couple toxic tort matters where the science has been as fiercely contested as it is in the talcum powder cases. The only other cases in recent memory where the science is hotly debated involves lymphoma resulting from the herbicide Round-Up. The Round-Up lawsuits resulted in an $11B settlement between plaintiffs and defendants.

This talcum powder case out of New Jersey, was very similar to the other talcum powder cases. The plaintiffs, Stephen Lanzo III and his wife sued a variety of defendants including one Johnson & Johnson subsidiary, claiming Mr. Lanzo’s long-term use of baby powder caused him to contract mesothelioma.

The trial judge permitted testimony from two of plaintiffs’ expert witnesses, Dr. James S. Webber, Ph.D. and Jacqueline Moline, M.D. On appeal, the 3-judge panel overturned the verdict because they didn’t think the trial court applied a proper Daubert standard in permitting the testimony from doctors Webber and Moline.

According to the article from Husch Blackwell attorney Brittany Lomax, the appellate court basically found that three prongs of the Daubert test were not met, “Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform ‘its required gatekeeping function’ by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.”

As a result, the appellate court remanded to the trial court and ordered new trials for two of the defendants.

It is worth noting, this is a major win for defendants in these talcum powder cases. It appears the appeals courts, at least in New Jersey, are going to review scientific evidence with exceptional rigor.

ConsultantsExpert WitnessIntellectual PropertyLitigationPatent Infringement

PATENT INFRINGEMENT – CEASE AND DESIST!

on March 22, 2011

Patent infringement litigation has been on the rise since the mid 1990s due mainly to the increase in computer-age technology.  Most patent infringement cases involve one company charging another company with selling or using its product for their own economic advantage.  Many times, the Defendant in a patent litigation case has no idea he is infringing on another’s intellectual property, but ignorance is never a defense in the law.  The Defendant will still have to cease benefiting from the patented item and pay the allotted damages to the Plaintiff.   If  the infringement is proven to be willful, damages in such a case can be increased up to three times the actual amount of damage.

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Patent law is governed by Federal Law and the rules are set out by the United States Patent and Trademark Office, 35 U.S.C. 271 Infringement of patent. – Patent Laws.  To find that a patent has indeed been infringed upon, several items must be found. In an article entitled, “Understanding Patent Infringement Legal Opinions”, David V. Radack sets out the following:

  1. A copy of the allegedly infringed patent.
  2. The file wrapper or file history of the patent which includes a copy of the patent application as filed, communication from the patent examiner in charge of the application, and communication from the applicant to the patent examiner.
  3. A copy of the prior art references cited during the prosecution of the patent application.
  4. The allegedly infringing product or device itself. Preferably, a commercially sold device is best.

Once this information is analyzed, many times with the help of Patent Infringement Expert Witnesses and Consultants, an opinion summary is provided.  It is this opinion which sets forth how the parties will proceed, how  the Defendant should respond to a cease and desist order, if changes can be made to Defendant’s product which will eliminate the violation, or to negate a charge of intentional infringement.

Considering the litigation gridlock currently in the Federal Court system, it may be worth it to seek the knowledge of  a Patent Expert or Consultant concurrent with the development of a new device or product. If not then, retaining a Consultant prior to marketing the product could save an enormous amount of time and money.

Please click the link for a list of knowledgeable Intellectual Property, Patent Infringement and Trademark Expert Witnesses and Consultants.

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PHARMACEUTICAL PRODUCT LIABILITY

on March 8, 2011

With the onslaught of legal drugs on the market, pharmaceutical product liability cases have become mainstream in the court system.  It boggles the mind how many possible harmful side effects there are for one medication alone.  Just listen to any commercial for depression medicine – and you’d better listen carefully.  They have to speak quickly to get them all in.

If a pharmaceutical company lists all possible harmful effects, does that relieve them from liability?  Do a certain number of people have to die or have a stroke in order for the drug to be pulled from the market?  Conversely, did the patient do something to exacerbate the problem?  Take too much of the medicine?  Not enough?  Is the pharmacy liable for miscalculating the dosage?

This is when Pharmaceutical, Pharmacology and Toxicology Experts and Consultants come into play.  The variables are so complex and many that a case cannot be thoroughly adjudicated without the scientific and practical experience that these particular Experts hold.  They use their skills to review medical and pharmacy records, evaluate drug delivery standards of care, toxicity, adverse drug events and even FDA regulations.  These Experts and Consultants are retained to determine the period of time a drug was used and a patient’s average compliance or adherence to taking a drug, among so many other things.

The bottom line is that Pharmaceutical, Pharmacology and Toxicology Experts and Consultants are essential to resolving complex medical issues involving pharmaceuticals and drugs.  That they play a major role in helping to regulate the industry, compensate the injured and defend the innocent cannot be denied.

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CREDIT DAMAGE EXPERT WITNESSES – COMPENSABLE DAMAGES

on January 19, 2011

It used to be that credit damage was not a compensable injury.  The victims of identity theft or fraud could not recover financially for any damage that was not a tangible good or service.  Thanks to the relatively new procedure of Credit Damage Measurement (CDM) and the expertise of many Credit Damage Experts, getting compensated for intangible losses is now possible.

In an article titled, “Credit Damage: Getting Compensated for Your Loss,” Credit Damage Expert, Georg Finder writes that, “ The impact of a bad credit rating is much more significant than most people think. Consider what poorly rated consumers face when they want to lease or buy vehicles, obtain credit cards, buy or lease or refinance their residence. In most cases, it’s an easy decision for the creditor: the credit application is simply turned down or the borrower is charged a much higher down payment – maybe thousands of dollars more with monthly payments that are typically several hundred dollars more.”

Tom Key, a civil litigator practicing in Tustin, CA is also mentioned in Finder’s article.  He explains that the CDM can help by measuring the actual out-of-pocket dollars reasonably expected from loss of creditworthiness, which includes higher down payments, higher points and costs on loans, higher interest rates, higher monthly payments, or outright denial of credit.  In addition, Keys says that the CDM method also calculates the rates, costs and other terms applicable to the resulting credit rating by lenders and projects the results over the relevant number of years for the types of loans the client is likely to seek.

For those who have suffered from identity theft or fraud that has left them with little or no credit, all is not lost.  With the help of a good Credit Damage Expert, civil litigator and the CDM procedure, recovery is not only possible, but likely.

Read Experts.com Member, Georg Finder’s, complete article.

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FORENSIC ACCOUNTING EXPERT WITNESSES & CONSULTANTS

on January 12, 2011

In the fall-out from the past few years’ financial debacle, there has been no shortage of work for Forensic Accountants.  From the Bernie Madoff scheme to Lehman Brothers and all the financial scams in between, Forensic Accountants have been called upon to apply the concept of accounting to help lawyers adjudicate and resolve the resulting legal problems.

Image Courtesy of Trade & Global Market

The Accountant’s Handbook of Fraud & Commercial Crime offers a definition which has been informally accepted by many Forensic Accounting Experts.  The definition is as follows:

“Forensic and investigative accounting is the application of financial skills and an investigative mentality to unresolved issues, conducted within the context of the rules of evidence. As a discipline, it encompasses financial expertise, fraud knowledge, and a strong knowledge and understanding of business reality and the working of the legal system. Its development has been primarily achieved through on-the-job training, as well as experience with investigating officers and legal counsel.”

Forensic Accountants apply their knowledge to many different financial transactions such as

  • Bank Fraud & Embezzlement
  • Bank Operations & Practices
  • Check Kiting
  • Electronic Transactions
  • Embezzlement
  • Money Laundering
  • Payment Processing & Fraud Detection/Prevention
  • Royalty Audits
  • Claims Analysis
  • Determination of Compliance

A Forensic Accountant’s area of expertise is not limited to financial crimes and fraud. They apply their knowledge to civil matters as well. Their services are useful for breach of contract, business valuations and marital / family law.

Considering the amount of financial litigation out there today, whether it be civil or criminal, the Forensic Accountant’s docket is most likely as full as the courts in which they testify.

Demonstrative EvidenceExpert WitnessLitigationTestimony

EXPERT WITNESSES – RULES FOR VISUAL AIDS IN THE COURTROOM

on January 4, 2011

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.

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