Posted by Mark Swansiger on October 6, 2008 4:01 PM |Permalink|TrackBacks (0)

Dear Friends,

This issue of The Expert Advisor contains valuable advice from two Round Table Group experts with vast experience in e-discovery and 3D exhibits. Our Featured Expert, Johnette Hassell, Ph.D., a national consultant and expert witness in computer forensics and e-discovery, explains how to use the 2006 e‑discovery amendments to the Federal Rules of Civil Procedure to your advantage. 

An article authored by Jeff Drake, principal of Drake Exhibits, explains how 3D exhibits can document and demonstrate the physical aspects of cases involving a variety of catastrophic events. He details the ways in which a Demonstrative Evidence Specialist works in tandem with the legal/expert team to create a visual strategy for use in presenting a case.

A third article discusses a recent federal district court order in a patent infringement case striking out those portions of an expert witness's report that were based on secret government studies.

The Expert Advisor is dedicated to providing our readers with assistance in locating, preparing, and utilizing experts. Please send your ideas for upcoming themes or articles to mswansiger@roundtablegroup.com.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc

Posted by Mark Swansiger on October 6, 2008 12:37 PM |Permalink|TrackBacks (0)

By Jeff Drake[1]

Trial attorneys, insurers, investigators, and forensic experts dealing with cases that involve a variety of catastrophic events can benefit from the use of 3D exhibits that document and demonstrate the physical aspects of their cases.  Following a fire, explosion, construction accident, structural failure, or other incident, it is critical that the evidence be documented immediately in order to preserve a record of the event for trial. This is where a Demonstrative Evidence Specialist (DES) steps in.

The DES is a designer trained in problem solving, who works in tandem with the legal/expert team to create a visual strategy for use in presenting a case. The DES consults with the attorneys to learn about the evidence and theory of the case, and also meets with expert witnesses scheduled to testify at trial in order to learn the technical issues involved from their point of view. In many instances, the DES's mission is to illustrate the expert's testimony. Attorneys can look to the DES to support the litigation process in ways that far exceed the production of exhibits.
 
Investigation Process

The DES works with investigators in documenting a scene, interviewing witnesses, inspecting equipment, creating technically accurate, visually specific graphics, and providing illustrations for expert reports. For example, the DES may work with a fire protection engineer to understand and graphically depict the dynamics of a sprinkler system's performance and effectiveness during a fire that overwhelms the system due to the building design.
 
Interaction with Attorneys

The DES bolsters the attorney's case by creating preliminary exhibits for use in depositions; assisting during depositions by supplying pre-made graphic templates to help witnesses (i.e., provide scale components for use by the witness in recreating a kitchen layout before a fire); drawing artistic sketches of a witness's testimony during deposition (i.e., illustrating the position in which a nurse found a deceased patient in a bed-rail entrapment case); and producing a series of trial exhibits that effectively summarize the client's case.
 
Trial Testimony

There are two reasons for a DES to testify at trial:

1)      Defense: When the other side objects to the exhibits, the DES must be able to testify that they are fair and accurate in order for them to be entered into evidence.

2)      Offense: The DES is an ideal witness to introduce and explain the site to the judge and jury as the exhibits are introduced. Having gone through a painstaking process to create fair and accurate exhibits, the DES often knows the physical site better than any other member of the litigation team. 

The DES needs a thorough understanding of a situation to create the exhibits. Often, the work involves drawing or building the site piece by piece in a scale model or computer model. Litigators can capitalize on this knowledge and use it to great advantage in court. The attorney who best explains the physical aspects of a case to the court effectively owns the site.

The DES's testimony may include explaining the process used to recreate a site (listing such items as the technical documents, medical records, depositions, photographs, expert reports witness descriptions, and video footage that were reviewed); describing the reconstruction process (the CAD program used, the scale used, consultations with experts, and first-hand inspection of the site and/or equipment); and the medium or materials used in the final exhibits.
 
Design Process

The DES looks at a case through the eyes of a juror and asks the following questions:

    * How would this best be explained to me?
    * What do I want to see as the attorney is explaining this case to me?

Demonstrative evidence can take the form of graphic exhibits (both printed and electronic), scale models, and animations. The DES recommends which type of exhibit or combination of exhibits will most effectively illustrate the case. This recommendation takes into account the complexity of the case, the trial schedule, and the budget available for exhibits.

The DES integrates all of the available information into as few exhibits as possible to simplify the in-court presentation. A scale model is one of the most effective types of exhibits for accomplishing this purpose. Whether the model is of a building or a product, the jury members will have a much easier time understanding the circumstances at issue if they can see the physical aspects of the case in three dimensions, right in front of them. 3D models are used to explain orientation, terminology, physical relationships, size, and scale; they enable the jury to focus on the issues at hand without struggling to understand what the site looks like.

Two cases in which models prepared by Drake Exhibits were key factors in obtaining positive results for its clients are described below:

Malden Mills textile plant explosion and fire

In 1995, the Malden Mills textile manufacturing plant in Methuen, Massachusetts, was the site of a massive explosion and fire that resulted in dozens of injuries, financial losses totaling nearly $500 million, seven years of litigation, and one of the largest fire investigations in the region's history. Retained by the mill's property insurer, Commerce & Industry Insurance Co., Drake Exhibits assisted in all phases of the case-from site investigation, documentation, and reconstruction to demonstrative evidence services that included design and development of a series of graphic exhibits and a scale model.

The scale model of the portion of the Monomac building involved in the initial explosion and subsequent spread of the fire represented an area measuring over 200' long and over 100' wide, including structures outside the building and trailers parked next to the building. Flock line and dryer equipment inside were represented in detail. The scale of the model had to be large enough for people to easily view the detail and small enough to be transported to meetings and court hearings. The exhibit was designed to split into two sections, each measuring 7' long, 3' wide, and 3' tall.

The use of this model for case strategy meetings, witness interviews, court hearings, and mediation greatly simplified many of the tasks that the legal and expert teams had to accomplish in order to achieve a favorable settlement for the client.

Monomac Building Model
 
Child fatality - booster seat product liability

A child succumbed to injuries sustained in a car accident following the failure of the booster seat restraint in the vehicle in which he was riding. On behalf of the defense (the booster-seat manufacturer), Drake Exhibits located an exemplar of the Toyota Camry's rear section and prepared it as a trial exhibit to illustrate proper seatbelt-fastening methods. Drake also produced a model at three times the actual size of the car's seatbelt mechanism that dramatically illustrated how a foreign object (in this case, a rubber band) would cause the seatbelt to malfunction. Both exhibits were critical to a swift finding for the defense.

Camry Seat   Seatbelt Mechanism

[1] Mr. Drake is Principal of Drake Exhibits (www.drake-exhibits.com). He joined the Round Table Group in 2008.

Posted on August 15, 2007 2:51 PM |Permalink|TrackBacks (0)

By Kathryn Regina

It is a foregone conclusion that expert witnesses can make the difference in an important case.  Yet, working with experts, from sourcing them to preparing them for trial, can be a challenge.

In this article, we interview a number of litigators abouttheir "expert witness war stories."

Lesson One: Get help when you have trouble finding exactly the right person

Finding the right expert can make or break a case. Eric Hudson, an attorney with Butler Snow, recalls the time he represented the defendant in a toxic tort case involving 250 plaintiffs. He needed an oncologist with a high level of credibility to respond to cancer claims.

"We had a hard time locating such a specific person," says Hudson, "and when we weren't having any luck we looked into Round Table Group. Within a matter of days they put us in touch with someone who was perfectly credentialed for what we were looking for. And she did a phenomenal job. We couldn't have been more pleased with her."

Paul Ragusa, a partner at Baker Botts LLP, had a similar experience with Round Table Group. He needed a technical expert for a case brought on by a sole indenter against a group of cellular mobile handset manufacturers. "We did attempt to get an expert on our own, and found it difficult to do so," says Ragusa."Round Table Group found several potential candidates, and the case resulted in a very favorable settlement."

Similarly, William Hyslop, a principal at Lukins & Annis PS, required someone with a substantial banking background for a commercial litigation case involving banking issues. "This is a field of fairly specialized expertise. We were able to interview several different candidates that Round Table Group recommended, and selected one that ultimately worked out very well."

Lesson Two: Know your expert's work

Chris Christie, a partner at Bradley Arant Rose & White LLP, recalls a time when opposing counsel's ignorance about its expert's work became detrimental to the case.

"As part of a question, I read a quote from the opposing expert's book," says Christie. "Opposing counsel, who did not know where the quote came from, called the quote the most asinine thing he had ever heard.The expert witness subsequently did not follow that lawyer's objections or other attempts to control his own expert's testimony."

On a separate occasion, the expert in a bid-rigging case stated that 90 percent of bids included at least one tie, when in actuality only eight out of 10 bids had a tie. "He would not admit a mistake," says Christie. "The case settled when, while a Daubert motion was pending, the judge seemed likely to exclude the statistician's testimony as unreliable.

"This is an example of why you always have to check your experts' and opposing experts' work. You need to read what's submitted to you, and you need to review what else he's written, because even a statistician will make a mistake like saying that eight out of 10 is 90 percent. So the lesson is, don't trust your own expert--check it yourself."

Russ W. Rosenzweig, CEO of Round Table Group, an expert witness referral firm, concurs with Christie.  "Finding the perfect expert is difficult enough, but it is not enough.  You also need to predict what the expert will say, and this is done by reading her past articles, deposition transcripts, blog entries.  Collecting these materials is very time consuming, and Round Table Group can help aggregate these materials for you."

Lesson Three: A free expert could cost you

Shell Bleiweiss, whose offices specialize in environmental and OSHA law, recalls the time he took an $11,000 case as a family favor. He needed to prove that a replacement for a residential boiler was defective. The client didn't want to spend additional money on an expert, but the person that installed the boiler agreed to testify as a favor.

Bleiweiss says the expert was willing to say all of the right things, and he did well in the informal interview with opposing counsel early in the case. Ordinarily, Bleiweiss would have gone over everything with him again repeatedly before trial to make sure he was ready.

But because it was a favor, Bleiweiss decided to rely on the assumption that the expert would say the same things he said in the interview. And he didn't.

"He got very wishy-washy at trial and said maybe this, maybe that.Very different from what he'd said before.You dig yourself in a hole you can't get out of when that happens," says Bleiweiss.

"It was as much my fault as the expert's in this instance, but the moral is you have to pay for quality," says Bleiweiss. "And be doubly careful if someone's doing you a favor. Make sure they know you're going to expect the same level of input from them as if they were being paid. And even then, it's hard to follow through with it.In general, you're better off paying."

Round Table Group can help you avoid the problems that can arise if you don't have the right expert on your case by locating, assessing and delivering expert candidates.  RTG's team of trained attorney specialists uses rigorous methodologies, relationships with numerous firms and proprietary databases to find unbiased expertise.  Please contact Mark Swansiger at 202-595-2000 for a demonstration on how Round Table Group provides a level of service, and a breadth and depth of experts that is unmatched.

Posted on January 17, 2007 2:57 PM |Permalink|TrackBacks (0)

by Lisa Fields

The idyll of a quiet Saturday at home shatters when the phone rings. It's your teenage son, talking fast through pain and panic. He took a nasty spill while skateboarding at the park down the street from your house. His leg is broken.

You rush to get him to the hospital, but the highway is more parking lot than roadway. The 30-minute drive to your closest hospital is agony for both of you.

If you're a resident of Stafford County, Virginia, the above example can often be a reality. The simple convenience of quickly getting to the nearest hospital, Mary Washington Hospital in Fredericksburg, isn't always possible because of traffic tie-ups.

A new hospital in Stafford

Increases in regional traffic volume and population growth prompted MediCorp Health System--the non-profit health system that owns Mary Washington Hospital--to pursue the idea of building a new hospital in Stafford to serve its growing community.

They believed that by 2015, it would take most Stafford County residents more than half an hour to reach Mary Washington Hospital, which was an unacceptably long travel time for a densely populated suburban region.

In Virginia, persons wishing to build new medical care facilities are required to get a Certificate of Public Need from the state health commissioner, a process that includes an administrative hearing, known as an informal fact-finding conference (IFFC).

Matthew D. Jenkins, a partner at Hunton & Williams in Richmond, handled the case for MediCorp.

The right expert to validate traffic jam predictions

Jenkins needed to find an expert witness who could prove to an administrative hearing officer that his client's traffic-jam predictions had merit. He contacted the Round Table Group for help.

"I was looking for someone to effectively model the present and future burdens on a roadway system," Jenkins says. "I didn't just need a traffic engineer. I needed an expert who could predict future traffic patterns. An additional requirement was familiarity with the Virginia highway system. The Round Table Group gave me one name: Antoine Hobeika."

Finding an individual with traffic prediction expertise, particularly for the Virginia area, was no easy task. Mark Swansiger acted as the researcher for Round Table Group. As he says, "Because this was a niche issue, finding Dr. Hobeika was a particularly difficult and time-consuming process."

Swansiger began with a search of Round Table Group's extensive internal database of experts, and performed scholarly journal searches through Google Scholar™ (Beta). Even with his impressive search skills, he was unable to turn up the right person quickly. "It wasn't as helpful as I'd hoped--there's not a lot written about transportation patterns in Virginia."

Swansiger researched Virginia universities, looking for solid transportation departments or statistics departments, keeping an eye peeled for programs with any emphasis on traffic patterns.

Swansiger's diligence paid off when he found Dr. Antoine Hobeika at Virginia Polytechnic Institute and State University. Hobeika was a miracle find, working at one of the best civil engineering departments in the state. In fact, Dr. Hobeika periodically does work for the state of Virginia regarding these same types of topics.

Dr. Hobeika, an engineering professor at Virginia Tech, specializes in traffic analysis and knows the state's roadways well. Swansiger prepared a Knowledge Portfolio, which included Hobeika's personal statement (a summary of his experiences in relationship to the topic), billing rates, and a formatted, easy-to-read resume, and presented it to Jenkins.

"A flexible thinker, curious and open-minded"

Jenkins and Hobeika met several times over a six-month period to discuss the case before the IFFC.

Jenkins thinks Hobeika may have initially doubted that future traffic patterns would indicate the need for a hospital in Stafford County, but when he studied the data, he realized it was true.

"You want an expert who is a flexible thinker, curious and open-minded, who is very comfortable discussing a case at the concept level," says Jenkins. "He did a brilliant job of developing a cohesive presentation: how the highway system would look, why the site proposed by MediCorp made the most sense and how it would improve timely access to hospital services. One alternative that had to be ruled out was the suggestion to make the existing hospital bigger. We needed to show that an addition wouldn't make the people in Stafford County any closer to the hospital, based on existing and future traffic congestion."

Hobeika developed a computer simulation of the Stafford County roadway network in the year 2015.

Vital testimony

Jenkins wisely brought his expert on early enough in the process for him to have sufficient time to get the job done. He advised that "it probably took Dr. Hobeika three months to put together his computer simulation. It would have been impossible for him to accomplish what he did in the span of a month."

As a result, "he could demonstrate, almost like turning on a water faucet, how traffic would flow, down to the phasing of the traffic signals," Jenkins says. "He figured out how much traffic is on the roads now, what the configuration of the roads would likely be in 2015, how much traffic will exist then and where people will live, to show that a substantial proportion of the Stafford County population will be more than 30 minutes away from Mary Washington Hospital."

Hobeika was the only traffic expert on the roster speaking on behalf of the MediCorp project in the course of a two-day IFCC in May.

"He was one of our principal witnesses," says Jenkins. "His testimony was vital for demonstrating the need for that hospital at that location. Dr. Hobeika provided a layperson's explanation of what we were trying to prove. He did an outstanding job."

In August, MediCorp was granted permission to build a new facility, Stafford Hospital Center, which is expected to open in 2009.

Lisa Fields can be reached at Lisa.F@BeTuitive.com.