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 2:39 PM |Permalink|TrackBacks (0)

A federal district court in Delaware recently ruled, in a pre-trial order, that unsubstantiated portions of an expert witness's testimony in a patent infringement case were inadmissible.[1] The dispute involved two types of scintillator crystals used for medical purposes. The expert, a research scientist employed by Los Alamos National Security (LANS), stated that the two crystals were "different substances and the difference between their properties are such that they cannot be considered to be equivalent." He based his report, in part, on studies undertaken at the Los Alamos National Laboratory (LANL). LANS operates LANL for the Department of Energy.

The expert's work for LANS dealt with homeland protection and national security. Consequently, his use of government property was severely restricted, and he could not use work-related data in connection with this case. Moreover, he was barred from producing any LANL documents for use in the litigation.

Basing her decision on fundamental principles of fairness, the judge pointed out that confidential data cannot be used "as both a shield and a sword." The expert, who was precluded from sharing his work with the litigants, could not rely on his recollection of that work product in the lawsuit because "there clearly was no principled way to test his recollection and opinion."

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[1] Siemens Medical Solutions USA, Inc. v. Saint-Grobain Ceramics & Plastics, Inc., DC DE, Civ. No. 07-190-SLR, August 20, 2008.

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 by Chris Crone on October 31, 2007 10:12 AM |Permalink|TrackBacks (0)

by Lisa Fields

It's critical that expert witnesses understand the rules about the discoverability of expert materials and spoliation, says Paul Veith, a partner at Sidley Austin LLP, who recently gave a presentation on the subject at a Law Seminars International event in Chicago.

Why?  Document spoliation could result in preclusion of testimony--or worse.

Ways in which spoliation could occur

Dr. Fred Cohen, Research Professor at the University of New Haven in forensic sciences, a member of Round Table Group's network of 95,000 experts, and founder of Fred Cohen & Associates, says, "The problem of spoliation starts with the fact that it's latent evidence.  One way or the other, the only thing the jury is going to see is a representation, which may not fairly represent the actual evidence."

Digital forensic evidence has many chances for spoliation along the way.  Here's an example: Traffic on a network exists for only a very brief time period, Cohen says.  That data could be forged, encrypted, or not collected in a timely manner.  Various audit trails might exist, so many separate logs might need to be accessed to collect all of the needed information.  "If you don't act to retain audit trails, all you have is the file on the computer, which might have been broken into or otherwise altered."  The longer the data sits, the more opportunity there is for spoliation.

The expert witness' role in spoliation prevention

Some documents created by expert witnesses (including drafts of their reports) must be furnished to the opposing legal team unless both sides decide otherwise. If such discoverable documents are destroyed by your expert witnesses, whether intentionally or unintentionally, there may be consequences, Veith says.

"If there is spoliation found, you could potentially face preclusion of the expert's testimony in whole or in part," he says. "You might face an order compelling you to attempt to forensically recover any deleted materials on computers. Sometimes a judge will instruct a jury that the deletion of a document should lead them to infer something unfavorable about the deleting party. And in some cases, spoliation can lead to the dismissal of a claim or defense."

To avoid problems, consider Veith's advice on spoliation when you begin working with a new expert witness:

1.  Make an agreement.

"One common practice is coming to an agreement with the opposite party governing the discoverability of expert materials," says Veith.

"You make clear the dos and don'ts about what will be discoverable."

You may decide, for example, that rough drafts of expert reports won't exchange hands. "Attorneys may say, 'We know we'll each help our experts get their reports into shape because engineers don't write like attorneys,'" says Veith. "An agreement says: 'We'll do our work and you do yours without worrying about the paper trail.'"

Agreements can also dictate that written communications between experts and attorneys  won't be produced by either side.

2. Limit your experts' writing.

It's not always possible to agree to alter the basic rule of discoverability, and sometimes an agreement doesn't make sense, says Veith.

In the absence of an agreement, "you have to be very careful that no documents are created that you wouldn't want the other side to see," he says.

You'll need to carefully explain to your expert witnesses what types of documents are off-limits.

3. Limit your own writing.

If drafts of reports and written communications with experts will be discoverable, be sure your written comments don't reveal your impressions of the case at hand.

"The attorney work-product doctrine generally protects the mental impressions of attorneys from disclosure," explains Veith, "but when an attorney contributes something to an expert's work that is fully discoverable, the attorney's thought then becomes discoverable. That's why attorneys like to enter agreements; they'd rather not expose their input to the light of day."

4. Spell out the rules to everyone involved.

Don't just tell your expert witness your expectations about discoverable expert materials; make sure he passes along the message to everyone who works in his office.

"Stress that the junior people on his team and your team are reading from the same hymnal," says Veith. "You might have a perfect understanding with the lead expert, but if your associate and his associate start communicating in a different way than had been agreed upon, it's all for naught."

Many of Round Table Group's expert witnesses have experience working with attorneys, so they should be familiar with the rules of discoverability. But even a seasoned expert can benefit from hearing your expectations about spoliation particular to your case.

Digital Forensics Experts

Cohen, a Round Table Group expert witness, stresses that you should seek digital forensics experts who meet the same high standards you would expect from a medical expert witness, for example.  "You should look for someone with a great deal of specialized experience.  The top tier should have a PhD, 30 years of experience, work with education and technology--but there are very few experts who meet those qualifications."

Round Table Group can help litigators seek out competent experts who have proper training and background in this arena.

Posted on June 13, 2007 4:01 PM |Permalink|TrackBacks (0)

By Lisa Fields

Finding the ideal expert witness for your trial or deposition won't guarantee you success. To fully benefit from experts' knowledge bases, they must be properly prepared for the legal proceedings.

"Most expert witnesses have a lot of expertise in their particular disciplines, whether physician, scientist or engineer," says Steven Babitsky, president of the Massachusetts-based expert-witness training and consulting firm SEAK.

"Where they need help is in understanding the legal process. Once they understand the rules, they'll be much more comfortable testifying. Otherwise, it's like playing chess without knowing how to move the pieces."

In addition, as Russ W. Rosenzweig, CEO of Round Table Group, points out: "Different cases require different levels of training and experience. For example, if the attorney is concerned about the expert being perceived as a 'hired gun,' it wouldn't be appropriate to recommend someone with too much trial experience."

These six suggestions aid attorneys in preparing expert witnesses for success, regardless of experience level. Consider the following:

1. Demystify the proceedings. Don't brief your expert at a coffee shop half an hour before your trial. Meet her days or weeks in advance and explain the situation. "Give the experts a full understanding of the process: what the rules are, what they're allowed and not allowed to do, what they'll be facing," says Babitsky. "Then they can concentrate on answering questions and not be as concerned about the rules of the court."

2. Address all concerns. A good attorney will take a few hours to help ease an expert witness' mind. "Any issue they're worried about is important," says Babitsky, who says experts often want to know things like where to park and what to wear--not just what kind of questions they'll be asked and how long it will take. "If he's worried about wearing a tie or not, he's distracted," says Babitsky. "You want him to be calm, collected and relaxed."

3. Profile the opposition. Will your expert be up against a combative or easy-going attorney in cross examination? Alert him or her, says Alison Vredenburgh, PhD, a California-based liability expert and frequent Round Table Group expert witness. "Usually I'm more concerned about 'best friends' than aggressive attorneys -- be alert," she says. But an intimidating attorney can be just as problematic if your expert doesn't know the attorney's words aren't a personal attack. "Tell your expert to explain his or her position without getting defensive or argumentative," says Vredenburgh. "Sometimes at depositions, attorneys will behave confrontationally to see how the expert behaves. They may try it again at the trial if the expert gets angry or upset. Attorneys gauge the demeanor of the expert, not just the content of the testimony."

4. Minimize surprises. Do a mock cross examination so your expert will have experience answering difficult questions that may come up. "An attorney with the time and inclination to hone an expert's performance to the nuances of a case will be more successful," Rosenzweig says. "They'll be much easier to answer if the questions are identified ahead of time," explains Babitsky. "It's not uncommon for experts to freeze up or not know what to say when they haven't been prepped, and that can be damaging to your case."

5. Request a file check. "Sometimes attorneys assume they've sent an expert witness materials that they actually haven't," says Vredenburgh. The expert may not hear about a relevant document until a day or two before a deposition, ask the attorney for it, and then cram to read it before testifying. "To avoid this, the attorney should have the expert email a list of the documents they've received and reviewed a few weeks before the deposition," she says. "If anything is missing, the attorney can get it to the expert with time to spare."

6. Update your expert. If there are any recent developments in the case, let your expert know as soon as possible. "The worst thing for an expert is to be blindsided by information of which they weren't aware," says Vredenburgh. "It's really important that attorneys give all of the documents, photographs and facts of the case relevant to the expert's opinion well before it's time to testify, so the experts can be prepared. It's hard to be fully prepared if the expert gets new information in the eleventh hour."

When you work with an expert search firm like The Round Table Group, experts are often well-versed in courtroom proceedings. Round Table Group encourages all of its experts to undergo rigorous training, to give them an edge in difficult courtroom situations.

Round Table Group distinguishes itself by providing experts at the top of their fields. "They're deans, senior faculty members, partners at think tanks--they're people who already stay focused on continuing education and personal development," Rosenzweig says. "In many ways, our experts are the kind of people who, even if they don't have previous testifying experience, have spent their lives preparing themselves to be on the stand through skill and passion in their fields."

However, experts will often have concerns particular to the case at bar. Taking the time to address those concerns and familiarizing your expert with the details of your case could mean the difference between success and failure.

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