Expert Witness Blog

Rosalie Hamilton On Cross-Examination Questions (and Answers) About Your Advertising Part 2

Mon, 17 Jun 2013 05:00:00 -0800

In Cross-Examination Questions (and Answers) About Your Advertising, Rosalie Hamilton, the Expert's Expert on marketing writes:

 Answer questions honestly, and do not elaborate, except to further defuse the question.
 As with all deposition and courtroom questions, respond only to questions, not to statements; be comfortable with the silence and wait for a question.
 Don’t answer compound questions, or at least divide your response, with one answer to the first part of the question and a clearly separate answer to the second part.
 Don’t give credence to a line of questioning by trying to justify what doesn’t need to be justified. Your restraint will make the attorney look foolish to the jury.

Here are a few examples of questions you might encounter and suggestions of possible answers (Note: This is not a consecutive line of questioning):
Q: Do you advertise your expert witness services?
A: Yes, I do.
Q: Doesn’t that mean that you’re a hired gun?
A: No. (Don’t elaborate; make them explain, by your silence, what they mean by a hired gun. This you can then defuse. If the attorney continues that line of questioning, you can define “hired gun” for him as 'one who is willing to mold his opinion according to request,' which is not what you do).
Q: You’re available to testify for pay, and are willing to say whatever the attorney asks you to say; isn’t that correct? (compound question)
A: I am paid for my time and expertise in reviewing the case and to testify, if necessary, in deposition or court. What I say is my own opinion based on the facts of the case.
Q: I have a list of directories in which you advertise your services as an expert witness. You are hiring yourself out to testify for various attorneys, correct?
A: I list my services in directories so that attorneys know I am available for record review and testimony.
Q: You “promote” your expert witness services, isn’t that correct?
A: My resume and contact information are listed so that attorneys know I am available.
Q: Retaining counsel found you on one of these “directories,” isn’t that correct?
A: I don’t know.
Q: Your opinion is for sale, isn’t that so?
A: No, I base my opinion on the facts of the case and am paid for my time in reviewing the case and testifying about that opinion.

-- -- by Rosalie Hamilton, the Expert's Expert on marketing. She consults and coaches and provides full-service marketing for experts, including web site development. She is the author of The Expert Witness Marketing Book http://www.expertcommunications.com

Workers Compensation Expert Witness On Underwriting Philosophy Part 3

Sun, 16 Jun 2013 05:00:00 -0800

In Workers’ Compensation Underwriting Philosophy as Partnership, workers compensation expert witness David L. Stegall, CPCU, ARM, ARe, RPA, writes:

The problem with workers’ compensation underwriting is relatively simple: How does an underwriter find employers whose employees do not get injured very often and that return to work well and quickly. Identifying a problem is much easier than solving it. The best service a business can provide is to solve a problem. Most of the problems with workers’ compensation are management problems, i.e. how the process is managed. Businesses handle processes in different ways, some more effectively and efficiently than others. The processes used by some employer’s lead to superior results, i.e. fewer losses (frequency) and lesser losses (severity) as compared to the employers who have poorer loss histories. Process management flows from management attitudes. The way a manager faces a problem has much to do with their success in solving the problem. So, what needs to be looked for is a management attitude: one of partnership and cooperation. An underwriter needs to look for employers who understand human resource management and who care about their employees.

David Stegall is the Principal Consultant at Risk Consulting & Expert Services.

Preparing An Expert Witness For Direct Examination Part 2

Sat, 15 Jun 2013 05:00:00 -0800

In Preparing an Expert Witness for Direct Examination: Time for a Pep Talk, medical expert witness Burton Bentley II, M.D., FAAEM, ELITE MEDICAL EXPERTS, LLC, writes:

Take time to establish the expert’s role within the framework of the case. Remind the expert that he or she is an impartial commentator. His or her loyalty is to the court thus obligating the expert to render honest and unbiased opinions. The expert is neither the accuser nor is he or she responsible for the events that have transpired. The expert alone will not determine the destiny of either party. Rather, the expert will educate and inform the trier of fact in the hope that justice will prevail. While an expert never should advocate opinions with which he or she disagrees, the expert must skillfully articulate and defend the positions that they have already professed. It is a responsibility not to be taken lightly. A compelling expert must exhibit resiliency in the face of tough questioning and remain steadfast in the opinions that they offer. Remind the expert to rely on competent training and years of professional experience. Those strengths are the key to rendering deliberate and assured testimony based soundly upon the medical facts.

Work with the expert to hone their confidence and build their presentation skills. Time spent with a good pep talk --- really a “prep-talk” --- will be time well spent.

Dr. Bentley is a practicing physician and CEO of ELITE MEDICAL EXPERTS, LLC.
ELITE secures top-tier expert witnesses by working exclusively with physicians and surgeons from the nation’s leading universities. Learn more about ELITE at www.EliteMedicalExperts.com

Pollution Expert Witnesses & IEA Report

Fri, 14 Jun 2013 05:00:00 -0800

Pollution expert witnesses may provide reports concerning air pollution, air quality, contamination, and pollution regulations. In its annual World Energy Outlook report, the International Energy Agency says the world's carbon dioxide emissions rose in 2012. China had the largest emissions growth last year. The IEA is an autonomous organization which works to ensure reliable, affordable and clean energy for its 28 member countries and beyond.

More info: http://iea.org/

Samsung & Patents Litigation Expert Witnesses

Thu, 13 Jun 2013 05:00:00 -0800

Patents expert witnesses may consult on software patents, invention patents, patentability requirements, license agreements, and international patents, as well as related issues. Against the backdrop of Apple v. Samsung litigation, Chris Velazco writes for techcrunch.com How Samsung Got Big.

Before Samsung Electronics there was merely Samsung Sanghoe: a small trading company founded by Lee Byung-Chull in 1938 that dealt mostly in dried seafood, produce, and its own noodles.

Read more: http://techcrunch.com/2013/06/01/how-samsung-got-big/

Rosalie Hamilton On Cross-Examination Questions (and Answers) About Your Advertising Part 1

Wed, 12 Jun 2013 06:00:00 -0800

In Cross-Examination Questions (and Answers) About Your Advertising, Rosalie Hamilton, the Expert's Expert on marketing writes:

Some experts are understandably wary of advertising. I see some forensic advertising that I consider objectionable, advertising that a skilled attorney could use to impeach an expert witness. On the other hand, the mere fact that one advertises is not objectionable. Advertising, in and of itself, is not the basis of being viewed as a “hired gun.” That results, instead, from the prostituting of oneself by manipulating the facts and opinions to provide a desired conclusion.

If you are concerned about how you will look when answering questions about marketing your expert services, remember that the attorney grilling you is probably listed in local, state, and national bar association publications; Martindale-Hubbell(c) attorney directory; local, state, and national legal magazines and newspapers; the Yellow Pages; and his child’s athletic booster directory. As was the judge when he practiced law as an attorney!

Do *not* take the questioning personally. Your responses to the questions, rather than the questions themselves, will determine the attitude of jurors and even judges toward you. Practice maintaining your poise and responses to emotion-loaded questions.

Successful experts say they let questions about their advertising “bother them all the way to the bank.” They have found that questions regarding advertising comprise only one of many issues on the cross-examination list and are not a problem when answered simply and truthfully.

Some time ago, I received the following inquiry regarding this issue:
"When lawyers start to beat up on me about the advertising, I'd like to have a few graceful and effective responses to defuse the issue. I realize that the expert's manner and tone in responding to questions of this type are critical and I have no problem in that sphere. I'm at a bit of a loss in terms of artfully phrasing the responses. Form is fine--could use some help with content. Could you advise?"

I am sharing my reply with you, our readers, because I think it addresses concerns common to many of you in expert consultant practices:
 Answer questions honestly, and do not elaborate, except to further defuse the question.
 As with all deposition and courtroom questions, respond only to questions, not to statements; be comfortable with the silence and wait for a question.
 Don’t answer compound questions, or at least divide your response, with one answer to the first part of the question and a clearly separate answer to the second part.
 Don’t give credence to a line of questioning by trying to justify what doesn’t need to be justified. Your restraint will make the attorney look foolish to the jury.

Environmental Expert Witnesses & Davisco Waste Water Settlement

Tue, 11 Jun 2013 05:00:00 -0800

Environmental expert witnesses may provide reports and expert testimony regarding EPA regulations, the National Environmental Protection Act, water pollution, the Clean Water Act, and more. Recently the EPA reached a settlement agreement with Davisco Foods International for dumping waste water containing phosphorus and ammonia pollutants over allowable limits into the Snake River. Davisco does not admit any liability in the U.S. District Court Boise, ID, case but will pay $300K in fines.

Workers Compensation Expert Witness On Underwriting Philosophy Part 2

Mon, 10 Jun 2013 06:00:00 -0800

In Workers’ Compensation Underwriting Philosophy as Partnership, workers compensation expert witness David L. Stegall, CPCU, ARM, ARe, RPA, writes:

Insurance is a business based on the concept of “Utmost Good Faith” between the parties; this is the opposite of the “Caveat Emptor” (buyer beware) concept. This is particularly true of workers’ compensation where there are two beneficiaries to the agreement, the employer and the employee. Workers’ Compensation is one of the social programs that made our Free Enterprise System strong. In the 1920′s, when most states passed laws regarding workers’ compensation, it was agreed that these laws are beneficial to all parties. Employers could know the cost of labor, thereby allowing them the ability to manage their businesses and price their products with certainty and stability. Workers knew if an accident or illness did occur from their work, they would be able to receive benefits without filing suit against their employer and seeking relief in tort. This system bestows both rights and responsibilities on the parties to the agreement. It was intended to be a no-fault, non-adversarial system and to succeed it requires both parties to act with the utmost good faith.

David Stegall is the Principal Consultant at Risk Consulting & Expert Services.

Insurance Expert Witness On Recurring Insurance Litigation Themes Part 10

Sun, 09 Jun 2013 05:00:00 -0800

In Property & Casualty Insurance Procurement & Litigation (Ten Recurring Themes Every Lawyer Should Know) insurance expert witness David L. Stegall, CPCU, ARM, ARe, RPA, of Risk Consulting & Expert Services writes on ten recurring themes that often lead to litigation. Attorneys either dealing in insurance procurement litigation issues or with clients who purchase insurance may want to consider these ten themes:

Theme 10 of 10
Business Interruption, Income, Extra Expense and other time element coverages are unique to business entities and are seldom purchased correctly. These coverages are extremely important in that they are practically the only insurance coverages that will cover the future earnings of a business. Businesses that fail to purchase the coverage seldom fully recover after a major loss occurs. However, the process of purchasing the coverage is wrought with misunderstanding due to the use of what appears to be accounting terms, but are actually insurance terms. This causes confusion on the part of both insurance professionals and accounting personnel normally asked to complete the application forms. There are very few agents, brokers, or underwriters who can accurately assist in the application process, yet the actual process of buying coverage (not necessarily the correct coverage) is easy and often handled in a very cavalier manner. Very few insurance professionals within the industry have enough experience with business interruption and time-element coverage claims to understand the claims adjusting process. This makes misunderstandings common between buyers and insurance companies, which can lead to litigation.

Lesson #10: Have your client’s accountant work directly with the underwriter on this coverage procurement, if at all possible. The accuracy of the application for this coverage is paramount. Again, ask questions, make sure you understand how the coverage will respond in a loss scenario, follow-up in writing, and document answers.

Reoccurring Conclusion: Just like poor legal advice, poor understanding of insurance procurement issues can be very expensive for your client!

David Stegall is the Principal Consultant at Risk Consulting & Expert Services. Mr. Stegall holds a B.A. in Communication from Auburn University and is a Chartered Property and Casualty Underwriter, an Associate in Risk Management and an Associate in Reinsurance, all awarded by The Institutes in Malvern. PA. He is also a Director of the Society of Risk Management Consultant

Design Patent Expert Witnesses & EU Case

Sat, 08 Jun 2013 06:00:00 -0800

Design patent expert witnesses may consult on computer patents, design patents, international patents and licensing. In Apple Loses The European Design Patent Case Against Samsung, Tim Worstall writes for Forbes.com that design patents in the EU are different than in the US. "This is about the look and feel of the device, not the technical manner in which it operates. Almost, but not quite, closer to a copyright or trademark issue than what we usually think of as a patent."

Worstall is a British-born writer and blogger, who writes about many topics, but particularly about economics.

Read more: http://www.forbes.com/sites/timworstall

Medical Toxicology Expert Witnesses & Prescription Drug Poisonings

Fri, 07 Jun 2013 05:00:00 -0800

Medical toxicology expert witnesses may consult on adverse drug reactions, drug toxicology, overdoses, poisoning, and forensic toxicology. www.dailyrx.com reports on a study published in the journal Pediatrics this week showing that the rising use of prescription drugs by adults in the U.S. has led to more poisonings among children. Led by Dr. Lindsey C. Burghardt, Division of Emergency Medicine at Boston Children’s Hospital, the study used data from the National Poison Data System as well as National Ambulatory Medicare Care Surveys.

Sanity Expert Witnesses & James Holmes Plea

Thu, 06 Jun 2013 05:00:00 -0800

Sanity expert witnesses may provide testimony regarding insanity pleas, clinical competency, diminished capacity, testamentary capacity, insanity defense, and more. In the news, 18th Judicial District Judge Carlos Armando Samour Jr., Centennial, CO, accepted James Holmes' plea of not guilty by reason of insanity. Colorado law defines insanity as the inability to distinguish right from wrong caused by a diseased or defective mind. Judge Samour set a date of August 2, 2013, to complete a mental evaluation. Holmes faces more than 160 counts of murder and attempted murder after killing twelve and injuring seventy in a Denver suburb movie theater.

Accident Reconstruction Expert Witnesses & Chrysler Jeeps

Wed, 05 Jun 2013 05:00:00 -0800

Accident reconstruction expert witnesses may consult regarding collision analysis, crash worthiness, traffic accident reconstruction, and injury reconstruction issues. This week Chrysler Group refused to recall 2.7 million Jeeps that federal safety officials say are dangerous. The Jeep maker disagrees with the National Highway Traffic Safety Administration's analysis that rear mounted gas tanks in 1993-2004 Jeep Grand Cherokees and the 2002-2007 Jeep Liberty models may cause a vehicle fire in a rear end collision.

DNA Expert Witnesses & Supreme Court Ruling

Tue, 04 Jun 2013 05:00:00 -0800

DNA expert witnesses may give opinions regarding serology, DNA testing, forensic DNA, DNA fingerprinting, and related matters. This week, the US Supreme Court ruled that police may take DNA samples from people arrested in connection with serious crimes. Justice Anthony Kennedy wrote: "A suspect's criminal history is a critical part of his identity that officers should know when processing him for detention."

Slip opinion Maryland v. King: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

Workers Compensation Expert Witness On Underwriting Philosophy Part 1

Mon, 03 Jun 2013 06:00:00 -0800

In Workers’ Compensation Underwriting Philosophy as Partnership, workers compensation expert witness David L. Stegall, CPCU, ARM, ARe, RPA, writes:

An underwriting philosophy is the logical analysis of the principles and processes underlying the conduct, thought and knowledge used in selecting and assuming the risk of another party.

Philosophy attempts to draw unity from diversity. It attempts to deduce conclusions (leading to unity) based on overall observations, both direct and indirect (diversity). The unity we are attempting to achieve is profitable business. The diversity is all of the risks, which we, as a company, have the capacity and authority to assume. Selection is the key. Underwriting is a process of selection.

In a voluntary and competitive market, there will always be selection in insurance. The question is whether the selection will be done by the insurance company or by the insurance buyer. The two opposite poles in this continuum are selective underwriting vs. adverse selection. It is the job of the underwriter to select rather than be selected. By analogy, an underwriter is similar to a loan officer at a lending institution. There is nothing difficult about lending money (the assets of the company). The key is to make good loans: loans that will be paid back and at an adequate rate of return. An underwriter has the power and responsibility to use the assets of the company for the benefit of the stockholders and must think much like a loan officer to create, maintain and maximize the value of the company’s assets.

David Stegall is the Principal Consultant at Risk Consulting & Expert Services.