Three Myths About Hiring Expert Witnesses


Expert witnesses can be the key to successfully litigating a dispute. Experts are a valuable resource for attorneys and society has high expectations for them in terms of what they can do.  Here are three myths about hiring an expert witness, and the truth behind those myths: Myth #1: Hiring An Expert Witness Will Help … Continued

Can An Expert Witness Opine On Someone’s State of Mind? District Judge Makes a Decision on the Testimony of an Oil Industry Expert in a Trade Secret Case

An oil company (MAR) recently brought suit against several defendants, including another energy company, for trade secret misappropriation in violation of the Ohio Uniform Trade Secrets Act (TSA). MAR alleged that defendants improperly used its confidential and proprietary information, including seismic data, to lease land and to drill in Northwest Ohio for oil and natural … Continued

Pasadena Bar Association’s Litigation Luncheon featured ForensisGroup’s CEO as a Panelist on the Topic of Expert Witness

ForensisGroup’s President and CEO, Mercy Steenwyk, was one of the panelists at the Pasadena Bar Association’s Litigation Section Meeting on Oct. 30, 2014. The topic of the meeting was “The 5 Biggest Mistakes to Avoid When Hiring An Expert Witness.” The event was held at Noor restaurant in Pasadena, California. Other panelists include Dr. Michel … Continued

Judge Tells Damages Expert in Patent Infringement Case to Re-Do Calculations

In a recent patent infringement case, the Plaintiff Programming Company and the Defendant Software Corporation asked the U.S. District Court Judge to rule on the parties’ motions in limine; this opinion focused on Defendant’s motions in limine to exclude the questionable opinion of Plaintiff’s damages expert. In scrutinizing an expert’s principles and methodology, the judge … Continued

ForensisGroup at AIPLA Annual Meeting 2014

The American Intellectual Property Law Association hosted the 2014 Annual Meeting at the Marriott Wardman Park Hotel in Washington, DC from Oct 22 – Oct 25.  More than 1,600 IP law attorneys and professionals attended the conference to get in-depth knowledge on the recent decisions and legal landscapes in IP law.  ForensisGroup exhibited at the … Continued

ForensisGroup at DRI 2014 Annual Meeting

ForensisGroup exhibits at DRI’s 2014 Annual Meeting at the San Francisco Marriott Marquis from Oct 22-24. More than 1,100 defense attorneys from around the nation attend the event to learn from landmark cases and network with professionals in the insurance industry.  The event features high profile speakers including David Drummon, Google’s chief legal officer, Chief … Continued

Is Expert Testimony considered “New Evidence”?

What happens when a defendant tries to use another parties’ expert deposition as new supporting evidence? In a recent case, the judge explains the importance of timeliness to file a motion and the criteria for “newly discovered” evidence. A shipping’s insurance company brought a breach of contract lawsuit against an international shipping company and two … Continued

Premises Liability Part III: General Trends in California and the Role Experts Play

Previous articles in this series have dealt primarily with premises liability in the context of sporting events or recreational facilities. This part addresses the general principles of premises liability in California, according to judicial rulings and statute, and seeks to describe the vital role that expert witnesses play in helping judges and juries resolve such cases. Other states … Continued

Premises Liability Part II: Spectator Injuries Resulting from Playing Sports and Expert Witnesses

Part I of this series discussed California’s recreational use statute in premises liability claims. Rather than dealing with injured sports participants, as the first article did, this part addresses spectator injuries when those injuries occur in sports and/or recreational facilities. This issue is far from settled; in fact, courts often find themselves taking into account … Continued

Premises Liability Part I: Recreational Immunity and Expert Witnesses in California

In general, premises liability law covers determining whether or not a landowner (or possessor) is legally responsible for injuries sustained by individuals while on the particular premises. The laws and judicial rules covering premises liability are myriad, varying from state to state and from case to case.  Many states, like California, have “recreational use” statutes, which … Continued

Forensic Expert Witness Association Meeting: Computer Forensics Experts and Their Role as a Witness in Theft of Trade Secret Matters

ForensisGroup shows support for the Forensic Expert Witness Association (FEWA), Los Angeles Chapter.  ForensisGroup attended FEWA’s Dinner meeting on September 25th, 2014 at Guidance Software, Inc.’s headquarters in Pasadena, California.  Mr. Erik Laykin from Duff & Phelps LLC moderated the panel on the topic of the role of expert witnesses in theft of trade secret … Continued

Non-Retained Expert Witness Disclosure: Is An Expert Report Required For A Treating Physician To Give A Testimony?

Rule 26(a)(2)(C) requires the disclosure of non-retained experts to state “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the expert is expected to testify.” The extent of this disclosure and the need … Continued

ForensisGroup at LAIPLA’s Trade Secret Litigation Dinner

The Los Angeles Intellectual Property Law Association (LAIPLA) hosted a Trade Secret Litigation Dinner on September 23, 2014 to offer strategies and industry insight to IP law practitioners in the Los Angeles area. ForensisGroup is proud to be one of the sponsors for the trade secret panel. Tiffany Scurry, the Senior Director of Technology Rights … Continued

ForensisGroup at Pasadena Bar Association’s Judges Night Reception 2014

ForensisGroup attended the Pasadena Bar Association’s Judges Night Reception on September 19, 2014 to show our appreciation and support for the judiciary. The reception was held at the Old Mill Foundation in San Marino, California. The keynote speaker for the event was the honorable Judge Lance Ito. Attorneys and legal professionals in Pasadena and the … Continued

Banking Expert Witness Able to Withstand Motions to Exclude Expert Testimony

Earlier this year, a bank that purchased a construction loan sued the seller and its parent company for breach of contract, negligence, willful misconduct, and specific performance. The loan purchaser motioned to strike defendants’ expert’s testimony. Several issues in this case illustrate the importance of an expert witness with adequate preparation and coaching by counsel.  The … Continued

Phytoforensics Experts and Environmental Pollution Lawsuits

Recent breakthroughs in monitoring the environment could offer opportunities for governments, plaintiffs, and defendants alike to efficiently and effectively investigate, analyze, and respond to environmental pollution questions.  Advances made public in 2011 by Missouri University of Science and Technology brought forward the field of “phytoforensics,” giving environment experts a new set of tools. Similar to … Continued

The Importance of Disclosing Expert Witness On Time: Expert Excluded for Missing Disclosure Deadline For Title Insurance Case

In Utah, the trial court excluded an expert witness because the attorney missed the expert disclosure deadline in a title insurance case.  As a result, the defendant won a motion for summary judgment because of failure to prosecute and the plaintiff’s inability to prove damages. The case highlights the importance of having an expert witness … Continued

Financial Expert Witnesses: Economists, Accountants, Appraisers and the Daubert Challenge

Introduction: Since 2008, litigation concerning the securities industry and financial sector has been on the rise. Because of increased regulation and enforcement, in addition to record numbers of corporate bankruptcies and restructurings, this litigation is expected to continually soar. Along with such litigation comes a demand for financial services experts. The questions pertain to the … Continued

The Automotive Industry, Class Actions, and the Role of Experts

Litigation involving the automotive industry is on the rise, and automakers in the U.S. are facing various lawsuits. Increasingly, a product recall by an automotive manufacturer leads to a class action lawsuit. Expert witnesses seem to be the key to class action lawsuits involving the auto industry, and both sides are mapping out plans of … Continued

Product Liability: Why Expert Witnesses are Critical to Winning the Case

Perhaps second only to medical malpractice litigation, product liability suits may require the largest amount of expert testimony. The U.S. Consumer Product Safety Commission regulates everything from battery acid to car seats, and it has issued voluntary regulations for dozens of products. However, voluntary guidelines, while useful, do not provide a clear legal standard for … Continued

Expert Witnesses in the World of Soccer and World Cup

Like everyone else in the world, ForensisGroup has come down with a severe case of World Cup Fever.  That got us thinking: many of our experts are actually involved in the world of soccer! Yes, even a professional expert witness service company like ForensisGroup gets a taste of the World Cup action. How is this … Continued

10 Signs of a Good Expert Witness

expert witnesses

Being deemed an Expert Witness in today’s legal system is an honor not to be taken lightly. Regardless of your discipline, you have reached gold medal status among your peers. Years of education, training, skill, experience and achievement have propelled you to the forefront of your field, and legal professionals consistently rely on your expert … Continued

ForensisGroup at LAIPLA’s Spring Seminar 2014

ForensisGroup attended the Los Angeles Intellectual Property Law Association’s  (LAIPLA) Spring Seminar 2014 as one of the gold sponsors at the event.   The seminar was held at the beautiful Ojai Valley Inn in Ojai, CA from June 6th to 8th 2014.   The seminar featured panels on patent law, copyright law, trademark law, FRAND, PTAB developments, … Continued

Why Do Attorneys Use Forensic Accounting Expert Witnesses?

Forensic accounting is one of the most in-demand expert witness disciplines.  A forensic accountant is much more than fact witnesses such as a bookkeeper, the tax preparer, or even the CPA.  The forensic accounting expert is a linguist of numbers and narratives. Recent news brings us a portal into the secret world of Swiss bank … Continued

ForensisGroup’s Top Five of the Month

We specialize in finding very hard-to-find experts for patent litigation, product liability, premises liability, and other complex lawsuits. Check out five of our interesting expert requests this month.  At ForensisGroup, we are the Expert of Experts. 1.  Turbo Charger Expert An attorney wants a highly qualified mechanical engineering expert for a complex product liability case. … Continued

Assessing Your Expert’s Credentials: Educational Background


The educational background of an expert witness is one of the considerations involved in the expert selection process.  There is a distinction between the quality of education versus the quantity of degrees. While the number of degrees possessed by an expert can certainly be of value, understanding the quality of such degrees is of equal … Continued

Can An Attorney Use An Opponent’s Previous Expert Witness?

The break-up of a small business led to plenty of litigation over a number of issues. The California Court of Appeal reviewed the trial court’s decision to disqualify an attorney because the opposing party claimed to have conveyed confidential information to his expert witness on a prior matter. Dispute arose between a seafood business (“Seafood … Continued

Assessing Your Expert’s Credentials: Certifications, Licenses, Publications, Memberships, Affiliations, Awards & Reputation in the Community


Navigating through the abundance of information contained within an expert’s CV, can be both a difficult and time-consuming process. In addition to prior experience and level or degree of education, there are a variety of other factors that can greatly contribute to the overall level of expertise, such as certifications, licenses, publications, memberships, affiliations, awards, … Continued

Assessing Your Expert’s Credentials: Prior Work Experience


The prior work experience of a potential expert witness is perhaps one of the most crucial of considerations. Similar to other assessment processes associated with the selection of an expert, it is necessary to consider prior experience in conjunction with other credentials.   Litigators should examine the relevance between an expert witness’ prior experience and the needs presented … Continued

ForensisGroup Participates in Flintridge Prep’s Junior Internship Program

ForensisGroup participates in Flintridge Prep’s Junior Internship Program on May 19, 2014. Two student interns from the local high school shadowed Mercy Steenwyk, President and CEO, and various executives at ForensisGroup.  The students gained first hand experience on the daily operations within the best expert witness service company.  The interns gained knowledge and experience on … Continued

Did the Expert Witness “Invade the Province” of the Jury?

The Illinois Court of Appeals recently reviewed a case on whether or not a fire science expert witness usurped the role of the jury and prejudiced the Plaintiff at trial.  This case of potential “jury invasion” stems from a residential fire claim.  The Defendant Contractor installed flooring in the insured’s home, which included applying floor … Continued

Do You Need A Public Relations Expert Witness?

For people and companies whose values go up and down in tides of public opinion, an expert witness in public relations can be a partner to both the legal team and the crisis management team.  Among other things, a public relations expert witness is the behind-the-scenes surveyor of the publicity surrounding cases who assists trial … Continued

Los Angeles Business Journal Named ForensisGroup’s CEO as a Finalist for the CEO of the Year Award at the Women Making a Difference Conference

ForensisGroup’s President and CEO, Ms. Mercy Steenwyk, was named by the Los Angeles Business Journal as one of the top five finalists for the CEO of the Year Award at the Women Making a Difference Conference. The Los Angeles Business Journal hosted the event on May 8th, 2014 at the JW Marriott at L.A. LIVE.   … Continued

The Expert Witness on the Impact of Public Education

American parents are turning to the courts to try to secure education reform via lawsuits.  Innovative claims are emerging against Common Core, Individualized Education Programs, and even tenure – all in the name of damages caused by public education. Education experts have created the possibility for the claims.  As school budgets soared and federal and … Continued

ForensisGroup’s Law Student Essay Competition: The Use of Expert Witnesses

ForensisGroup, the nation’s premier expert witness referral company, is proud to announce its Law Student Essay Competition. This competition is intended to encourage new ideas around issues related to expert witnesses. Participants will write an essay exploring original use-cases about how expert witnesses can help jurors to understand technical issues in complex cases or explore … Continued

Expert Witness Referral and Consulting Firm ForensisGroup Featured on Viewpoints with Terry Bradshaw – Press Release

ForensisGroup, the nation’s leading expert witness and consulting services company, was featured on the television program Viewpoints with Terry Bradshaw on May 15th, 2013. The segment was broadcast nationally on Discovery Channel Transponder as well as broadcast on several regional cable networks. During the feature, ForensisGroup CEO Mercy Tolentino Steenwyk shed light on the importance … Continued

The Emerging Environmental Impact and the Pollution Expert Witness

What happens when an amateur nature photographer captures photographic evidence of a biohazard near the water?  While the government response is likely to involve panoply of people – and experts in their field – what about the role of an environmental pollution expert witness on site for local residents and environmentalists? Not every circumstance that … Continued

Expert Witnesses in Fine Arts

In the book, Provenance, by Laney Salisbury and Aly Suj, the story is a fascinating account of an elaborate art forgery scheme, compiled from various trial archives and witness interviews.  It raises some interesting questions around how much of the art in museums and collections is real or fake.  How do experts prove authenticity and … Continued

Can You Use Expert Testimony for a Zoning Hearing?

Landfill zoningAmerican Jurisprudence states that it is common to use expert witness testimony at zoning board of appeals hearings, and courts have held that an administrative agency such as a zoning board of appeals can’t disregard competent expert testimony and rely on its own knowledge on issues which the board members have no expertise.  However, representations of lay witnesses don’t necessarily have to be accepted.

Expert Witness in FAPE Cases Against School Districts

“FAPE” stands for “Free Appropriate Public Education.” FAPE requires school districts to provide access to general education and to specialized educational services, free of charge, to students with disabilities.  Part of the Individuals with Disabilities in Education Act (1990, amended 2004), FAPE provisions give parents and educators a structure to approach modifications and accommodations in … Continued

Construction Expert to Stand When 10 Tons of Concrete Falls

Imagine that you’re walking through a parking garage and you hear a crack and have only a split second to respond.  The sound you hear could be warning sound of 10-ton concrete ceiling panels becoming detached and dropping down on you. This scenario is a real personal injury case. If the victim hires your law … Continued

Today’s In Demand Expertise: Biomedical Engineering Expert Witness

Certain careers have a title that sounds like an expert – medical doctor, physicist, chemist, and biomedical engineer.  By the sounds of it, you know it involves advanced degrees, research, and precision. The biomedical engineer expert witness may be called to consult on products liability cases, particularly those involving medical devices.  In these cases, the … Continued

What to Expect from an Expert’s Free Initial Consultation?

Free initial consultation

The purpose of the free initial discussion is to determine if and how an expert witness can help you in clarifying the technical and scientific issues, thus giving you the advantage for your case.  The initial conversation with experts can help you determine if you have the right expert discipline in mind.  The attorney can benefit by gaining better technical knowledge or clarification on the case without obligation.

The length of the initial discussion varies greatly depending on the expert and the type of case involved.  Some experts limit the initial phone conversation to 30 minutes while others are more flexible.   For example, medical doctors might limit the initial phone call to 15 minutes with an attorney on a personal injury matter.  On the other hand, a software engineer expert witness might spend over an hour on the phone with the patent attorney for a major patent infringement case.

What to Do If Your Expert Witness Passed Away? Tips on Contingency Planning


An attorney complied with Federal Rules of Evidence, gave disclosure of his expert witness, including any required written report or statement in lieu of a written report, and the case is moving towards a trial date certain.

Unfortunately, his expert witness unexpected passed away.  Such a statistically improbable event can, and does, happen.  An example is the high profile patent infringement case, Apple v. Samsung, where Apple’s initial damage expert witness passed away.

Significant Reduction in Damage Awards Amounts in Patent Litigation Suggests Substantial Impact of Expert Testimony

Patent License Agreement

According to data provided in PWC’s 2012 Patent Litigation Study, there was a decline in median damage award amounts of more than 50% in patent infringement disputes from the period between 2001 to 2005 and the period between 2006 to 2011—from $8.7 million to $4 million, respectively. What is most intriguing about this data is that there has been neither a decline in patent litigation, nor a decline in patent applicants. In fact, both have increased at a substantially similar rate.

How Important is an Expert Witness in the Eyes of the Jury?

Can you tell when the jury is convinced by your argument?  According to jury members in the recent Apple v. Samsung trial, it was Apple’s damages expert witness who provided the testimony that put the jury on track to award $290 million in damages in favor of Apple.  The jury deliberated for two days before … Continued

Calculating Reasonable Royalties in Patent Infringement Disputes

Calculating damages for royalties

Damages for reasonable royalties, in comparison to damages for lost profits, generally correspond to an assumption based upon what the parties would have agreed upon if they had negotiated a royalty amount prior to an infringement. This concept is referred to generally as ‘hypothetical negotiation.’ There are several techniques, both using the hypothetical negotiation approach, as well as other more analytical based approaches, that have been used in prior cases for the calculation of reasonable royalty damages in patent infringement matters, including the 25 percent rule of thumb, Georgia-Pacific factors, and the Nash Bargaining Solution. In recent years, however, the techniques employed by experts in the calculation of royalty damages in patent infringement disputes, have been subject to heightened judicial scrutiny.

How to Calculate Damages in Patent Infringement Disputes? Lost Profits, Reasonable Royalties & Price Erosion

Royalties in a cash bag

Compensatory damages in patent infringement cases are generally based upon reasonable royalties, lost profits, price erosion, and in some cases, a combination. Pursuant to 35 U.S.C. 284, which provides in part, “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.” As such, in cases where a claimant can prove, or elects to prove lost profits, this method will be applied. However, in matters where a claimant cannot prove, or elects not to prove lost profits, compensatory damages can be assessed based upon reasonable royalties.

Judicial Discretion in the Calculation of Damages in Patent Disputes

Patents and damage calculations

For more than half a century, the U.S. patent system has been the subject of very little congressional reform. However, with the rise in patent litigation over recent years, the need for system improvement, restructuring, and modification was addressed by Congress in 2011 with the enactment of the Leahy Smith America Invents Act (AIA). Notably absent from such reform, though, was the presence of directorial principles to address issues concerning damage calculations in patent infringement disputes.

What Are the Differences Between an Expert Witness and a Consultant (Non-Testifying Expert)?

Expert consultation

When litigating any case requiring the assistance of an expert, it is important to find the right expert as early in the case as possible. The expert will need to prepare for discovery and depositions, and can help the attorney prepare his or her discovery requests and questions for opposing witnesses. In complex cases, sometimes it is a good idea to retain an expert to act not as a witness, but as a consultant to help prepare the case, in addition to hiring an expert witness.

How to Look for an Expert Witness for a Medical Malpractice Case

Hammer and stethoscope - imagery for medical malpractice

When handling a medical malpractice (or “MedMal”) case, finding the right medical expert should be an attorney’s top priority. Medical malpractice occurs when a health care provider is negligent, whether by act or omission, in the provision of treatment or care to a patient. The treatment is considered negligent when it falls below the standard of care that would be exercised by a reasonably prudent medical professional and results in injury or death to the patient.  Identifying the standard of care is critical in these cases, so a qualified medical expert witness is the key to proving a medical malpractice case. In fact, some states even require that legal counsel provide a statement of merit before filing a medical malpractice claim on behalf of a client. For these reasons, finding the right medical expert witness should be the first step for a MedMal attorney when taking on a new case.

Can an Expert Witness Work on a Contingency Basis?

Fees for expert witnesses

Nearly every state has provisions included within their Rules of Professional Conduct, which expressly prohibit the use of contingency fees for experts. Even in jurisdictions that have not fully addressed the issue within their Rules of Professional Conduct, implications derived from the Rules of Evidence and Rules of Civil Procedure clearly support an argument against the use of such fees for experts. In addition, case law has long provided that contingency fee agreements for witnesses are against public policy.

How to Run a Conflict Check for Expert Witnesses?

Conflict of interest using an expert witness

With the significant impact an expert witness can have on a case, it is imperative to run a conflict check before an attorney hires an expert witness. The purpose of a conflict check is to ensure that an expert witness can serve a client free from any conflicts of interest. Conflicts of interest can prevent an expert witness from committing to a client at all, or could lead to the expert being distracted by another interest or commitment to someone else. Indeed, an expert witness can be disqualified by the court or another party due to a conflict of interest, so conflict checks are crucial before an attorney selects an expert witness for the case.

What Is an Expert Witness Designation Fee?

Expert witness testimony - swearing in

Expert witnesses spend years acquiring the knowledge, expertise, and skills that make them experts in their fields. As such, it is not surprising that expert witnesses expect to be compensated for their time and knowledge. Some expert witnesses request a retainer or an upfront monetary deposit (sometimes non-refundable) in order to secure their services.

For litigations, a party may obtain discovery by demanding that all parties exchange information about each other’s expert witnesses after the parties in a case set the initial trial date. Designation is essentially naming the expert witness by the retaining party in the case. But, what happens if the case settles shortly after paying the retainer and before the expert has done any work? Is it appropriate for the expert to ask for a designation fee? Is it appropriate to request such fee in the first place? What are the standard practices related to designation fees? Following is an analysis of the pro’s and con’s of expert witness designation fees, as well as a brief overview of common practices related to these fees.

Class Certification in Securities Actions: Mortgage Underwriting and Misuse of Discretionary Pricing Authority

Lawsuit filing

Since the onset of our nation’s mortgage crisis, there has undoubtedly been a rise in securities related litigation involving claims of discriminatory practices in mortgage lending and underwriting based upon misuse of discretionary pricing authority, specifically in the wholesale mortgage market. Many of these actions have been brought forth in the form of class actions. This article explores recent decisions occurring at the class certification stage, and the profound implications such rulings have, and will continue to have, on the manner in which similarly situated class actions are litigated.

Expert Witness Provider and Referral Firm ForensisGroup featured on Moving America Forward with William Shatner

On August 23, 2013, ForensisGroup’s CEO Mercy Tolentino Steenwyk was interviewed on Moving America Forward with William Shatner, an in depth television program that airs nationally on television. Expert Witness Referral Firm ForensisGroup featured on Moving America Forward with William Shatner Transcript follows: William Shatner: Welcome to our series Moving America Forward. Each week, we … Continued

Where to Find an Expert Witness for Cases in Alaska and Hawaii? The Golden State.

California state flag

Expert Witnesses are the small percentage of individuals who are the best of the best in their respective industries. Under the best of circumstances, a good expert witness can be hard to find, and if a case teeters on that expert witness’ opinion, only the best will do. But for non-continental states like Hawaii and Alaska, finding an expert witness that is both qualified and free of conflicts can be a nearly impossible task given the small populations and geographical isolation.

How to Use a Financial Expert Witness? The Effective and Efficient Use of Financial Expert Witnesses: Recommendations from the Institute for the Advancement of the American Legal System and the American Institute of Certified Public Accountants

Financial Expert Witness

The founding principles of the Unites States Civil Justice System are grounded upon resolving matters in an efficient manner, while also safeguarding the legally bestowed right in having access to courts through fair and just determinations. Few deny the validity of the notion that there is clearly room for improvement in our judicial system. This topic has been the subject of several studies. This article explores the recommendations of a recent study examining the role of financial experts in civil disputes, through the eyes of those most directly involved.

How to Compensate an Expert Witness for Travel Fees

Expert witness travelling

Being an expert witness requires knowledge, skills, education, experience, and training. Thus, expert witnesses are not always available in the exact location an attorney needs them to be. As a result, attorneys are often forced to hire out-of-state expert witnesses. But, many attorneys are unsure how to compensate such an expert witness for travel expenses.

Generally, the topic of expert witness compensation is a sensitive topic and rarely discussed. There do exist a number of guidelines issued by various professional organizations to which experts belong, but often these are completely voluntary standards. The standards usually are little more specific than what the expert should bill ethically and in a manner that does not jeopardize his or her ability to remain objective, such as having a stake in the outcome of the case. Indeed, many experts are, themselves, reluctant to discuss compensation for what are, perhaps, obvious reasons.

Evaluating and Instructing Expert Witnesses for Medical Malpractice Cases

Medical Malpractice

Expert witnesses involvement in litigation is becoming more and more prevalent, while the legal standards for evaluating the admissibility of the science upon which that testimony is based is still as vague as ever. Experts need to understand what goes on in the courtroom, the possible implications of their testimony, and the professional standards to which they are likely to be held. This guide is designed as a brief overview of some concepts the legal professional should follow in order to adequately train and evaluate a potential expert witness.

Questions to Ask the Expert Witness on Cross-Examination

Swearing in of Expert Witness

The goal on cross-examination of the opposing expert witness is not just to ask questions; it is to weaken credibility, reliability, and weight.  Many litigators engage in cross-examination with an expert witness. Also note that even if an attorney is proficient in this approach, it may not be the most strategic one.

There are five key questions applicable to any expert witness and reasons why you should ask the opposing expert witness:

1.    What materials did you review to form your opinion?

There are two goals in asking this question.  First, to challenge whether the expert witness prepared using all available materials, whether supportive or contradictory to his theory of the case.  Second, to find out if there were more materials available than was provided to you through discovery.  Ideally, the response of the expert witness amounts to as much information in the same format as you were provided.  This would put the two of you on an equal footing.

Potential Product Liability with Rear View Cameras in Vehicles

The U.S. Transportation Department (DOT) is being sued to issue the long-delayed rule requiring rear view cameras as a standard feature in new cars. According to Bloomberg, three advocacy groups and two parents are pushing for DOT to enforce the rear-view mirror requirement. The rule was supposed to be issued by the department 2 1/2 … Continued

Potential Product Liability with Rear View Cameras in Vehicles

The U.S. Transportation Department (DOT) is being sued to issue the long-delayed rule requiring rear view cameras as a standard feature in new cars. According to Bloomberg, three advocacy groups and two parents are pushing for DOT to enforce the rear-view mirror requirement. The rule was supposed to be issued by the department 2 1/2 … Continued

How to Choose a Business Valuation Expert

A business valuation ledger

It is important to find the right expert witness in cases that require a business valuation. You want to make sure that you retain a valuation expert who has experience that is relevant to the particulars of your case. If, for example, you are hiring a business valuation expert for a case involving patents, you want to be certain that the expert has a thorough knowledge of patent issues on the particular product or process and any relevant local laws pertaining to intellectual property and the standards of the specific industry involved.

How Are Expert Witnesses Used?


What Qualifies a Witness as an Expert?

Witnesses are generally divided into two categories: fact witnesses and opinion witnesses. The former category involves witnesses with first-hand knowledge of events or facts related to the trial. Opinion witnesses, on the other hand, provide their opinions in order to help resolve the trial.

The Post-Daubert Effect: Expert Testimony in Antitrust Litigation

Justice wieghts and gavel

Matters involving anti-trust litigation are a highly complex area of litigation, for several reasons. First, the subject matter and parties involved in anti-trust litigation are ever expanding, partly due to advances in technology. Second, depending on the particular matter, anti-trust matters may involve state and/or federal law. Third, and most intriguing, are the controversial issues that anti-trust litigation presents in evidentiary matters related to expert testimony from economist in the post-Daubert era. It is the intent of this article to focus on this third area, in light of the available data, which demonstrates an overwhelming amount of evidentiary challenges.  There are disparities between Plaintiffs and Defendants in both the quantity of challenges and the frequency of exclusion.   We will examine the resulting effects such judicial determinations have had on anti-trust litigation outcomes.

Finding an Expert Witness: Directory vs. Referral Sites

Finding the right expert witness...

There was once a time when people used phone books and called operators when looking for goods or services. However, the Internet has become the go-to medium for finding the products and services we need. Not surprisingly, when attorneys need to find expert witnesses to support them during litigation, the Internet is also the first place that many of them are looking.

Intellectual Property: Understanding the Differences Between Patents, Copyrights, Trademarks, and Trade Secrets

intellectual property expert witness word cloud

Intellectual property (IP) is a blanket term that describes a number of distinct types of intangible assets—creations of the mind—to which one can claim exclusive rights. Since there are several forms of intellectual property, it is easy to confuse them. However, the main forms of IP: patents, copyrights, trademarks and trade secrets have very different legal implications.

How to Successfully Prepare to Cross-Examine Expert Witnesses


Cross-examining expert witnesses can be one of the more challenging and intellectually intimidating tasks that litigators face. Preparedness is essential to any successful cross-examination. Any successful cross-examination of an expert witness requires thorough preparation and execution, as there is less of a margin for error than with other witnesses.

The first thing to do to prepare to cross examine an expert witness is to clearly define your goals. You should write out a detailed litigation plan and make sure that your goals are attainable and not over-reaching. As Dan Boone wrote in Canadian Lawyer, “Don’t try to get away with broad sweeping questions that overreach attainable goals.”

The Role of Experts in Fraudulent Transfers Adversarial Proceedings in Bankruptcy


There has been a notable increase in litigation regarding loan defaults since the onset of our nation’s financial crisis. Apart from private sector actions brought forth in both state and federal courts, there has also been an increase in adversary proceedings arising in Bankruptcy Courts. Many of these disputes involve allegations of fraudulent transfer and conveyance in the commercial lending industry. Pursuant to section 9017 of the Bankruptcy code, the Federal Rules of Evidence apply to Bankruptcy proceedings. As such, the use of expert testimony in such proceedings is not only permissible, but is a common method of presenting evidence, whether for supporting or negating purposes. In consideration of recent decisions on this subject matter, this article explores the role of experts in Bankruptcy proceedings involving loan defaults in the commercial setting.

Levels Of Evidence And Expert Testimony


Scientific research is quite different from legal research. Law is outcome-centric. In other words, we have a desired result and we identify facts and theories that support our desired outcome. Conversely, science is research-centric. Scientists begin with hypotheses, but permit the research to dictate the conclusion.  It’s similar to deciding which is more important: where you’re going or how you get there? Lawyers are concerned with the destination, scientists with the journey. For a true scientific researcher, the goal is to confirm your hypothesis, but it isn’t essential.

Expert Witnesses and the Fight Against Patent Trolls

Patented Stamp

Patent law and antitrust law are converging due to the alleged threats to the economy by “patent trolls”.  This could open up new avenues of patent and antitrust litigation, requiring not only the use of patent infringement expert witnesses, but also those in the antitrust field, such as antitrust and business expert witnesses.

So-called patent trolls, entities who sue businesses for violating patent rights possibly without justification, have been portrayed as antagonists using the legal system to prey upon unsuspecting businesses.  These Non Practicing Entities (NPE’s) may have huge portfolios of patents and may sue anyone and anything that may arguably be infringing on these patents.  Because of how they’re structured, NPE’s can’t be counter-sued under patent law.  It’s been estimated that more than half of the 4,000 patent infringement cases filed last year were filed by NPE’s.

Reverse Redlining in Mortgage Lending: The Expert’s Role in Meeting Evidentiary Standards

Man holding a model of a house

Although in their broader historical sociological meaning, the terms redlining and reverse redlining refer to discriminatory practices based upon geographic location in a wide variety of service industries, the terms are currently most commonly associated with the mortgage lending industry. As defined in United Companies Lending Corp. v. Sargeant, 20 F. Supp. 2d 192, 203 n. 5 (D.Mass.1998):

“Redlining is the practice of denying the extension of credit to specific geographic areas due to the income, race, or ethnicity of its residents. The term was derived from the actual practice of drawing a red line around certain areas in which credit would be denied. Reverse redlining is the practice of extending credit on unfair terms to those same communities.”

Determining Proper Allocation of Expert Witness Resources in Intellectual Property Disputes: Weighing Liability Versus Damages


When litigation is necessary to resolve matters concerning alleged violations of intellectual property rights, the multitude of remedies available under both state and federal law often result in complex pleadings containing multiple counts. In addition to claims brought pursuant to state law, such as common law unfair trade competition, or similar remedial provisions contained within state regulations pertaining to Business and Professions, intellectual property claims generally involve allegations of violation(s) in federal law. Common claims brought forth pursuant to federal statute include those for False Advertising and Unfair Competition, Patent Infringement, and Trademark Infringement. This article explores solely the issue of claims brought pursuant to federal provisions, as codified by United States Code.

Antitrust Laws and Small Businesses

Antitrust attorneys

Antitrust laws make headlines when major corporations, like those in the banking or airlines industry, plan on merging.  Antitrust can be a complex area of law, requiring the use of mergers and acquisition expert witnesses, economists, and industry specific business expert witness in order to prove a case.  But it’s not just big businesses that are impacted by antitrust law.

Developer Strikes It Rich with Award in Trade Secrets Case of Oil Drilling Software

Typing on a laptop

A software developer brought claims against a consulting firm for misappropriation of trade secrets under Texas common law and theft of trade secrets under Texas Theft Liability Act (TTLA).

A software company (“Company W”) developed software that allowed oil companies to “plan, procure, and pay for complex services”—all online. The software featured: “dynamic templates” that adjusted cost and supply estimates. Company W was, according to its CEO, the only company offering complex services software from 2000 to 2005. The software was not a stand-alone solution, but needed other companies’ software to perform core accounting functions.  To fill this technology gap, it contracted with SAP in 2005.  The agreement allowed Company W to integrate its complex services software with SAP’s accounting software. As part of the agreement, Company W provided its program code to SAP.

Intellectual Property Disputes: Knowing Additionally Available Remedies

Elements that make up Intellectual Property

Proper damage or liability assessment considerations, in terms of suitability of expert witness services which are engaged for testimonial purposes in intellectual property disputes, require litigators to possess sufficient knowledge of all available remedies. However, this must also include a full understanding as to applicable standards and criteria for assessing damage awards, as well as any limiting factors associated with remedial provisions. This notion is particularly exemplified given that intellectual property disputes often involve overlapping requests for relief, wherein, the singular actions of the alleged violator, allow for recovery pursuant to separate and distinct statutes. For example, with regard to patent infringement, 35 U.S.C. 289 provides an additional remedy for infringement of design patent, as follows:

Whoever during the term of a patent for a design, without license of the owner,

(1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or
(2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.

Property Valuation: Expert Witnesses in Lay Clothing & the Federal Rules of Evidence: Part II: The James River Test

Protperty paperwork and door keys


Part I of this series discussed whether opinion testimony about property valuation should be considered lay testimony under FRE 701 or expert witness opinion, according to FRE 702. This Part addresses a 10th Circuit case that established a test to help make this determination.

In 2011, the 10th Circuit attempted to reconcile what testimony should be admissible with respect to property valuation and what standards should be applied to testifying witnesses. In James River v. Rapid Funding, property valuation testimony was the key issue, and the Court considered whether a vital witness’s testimony should have been excluded, under FRE 701. See James. River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207 (10th Cir. 2011). The 10th Circuit provided a clear opinion on the matter, which several other courts have since adopted. See, e.g., Ryan Dev. Co., L.C. v. Indiana Lumber. Mut. Ins. Co., 2011 U.S. Dist. LEXIS 123524 (D. Kan. 2011).

Property Valuation: Expert Witnesses in Lay Clothing & the Federal Rules of Evidence: Part I: Recent Trends & Challenges

Protperty paperwork and door keys


For decades, debates have ensued as to who may give opinion-based testimony in civil litigation with respect to the value of real property.  Property valuation issues have created questions and problems for courts and rule-making bodies, particularly with respect to Federal Rules of Evidence (FRE), namely 701-702.  See, e.g., “Expert Testimony in the Guise of Lay Testimony: Property Valuation,” Federal Evidence Review (May 8, 2011).  A recurring issue in such cases hinges on whether the testimony proffered is lay or expert testimony, under FRE § 701-702.  Confusion has arisen because in certain circumstances, FRE 701 does permit lay witnesses to testify about the value of their property, but many courts have construed the Rules as narrowly as possible, often excluding lay testimony.  As recently as April of 2013, a court was forced to consider whether a debtor was a lay witness or expert, and based on that finding, what portions of the debtor’s statement were admissible versus which parts were barred by hearsay rules, under FRE 703.  Although the court ruled against the debtor, it stated that the matter would be heard at a later date and emphasized that its decision was a tentative ruling only.  See “Instructions For Pre-Hearing Dispositions,” Motion to Value Collateral of Valley First Credit Union, U.S. Bankruptcy Court (E.D. Cal.) (Apr. 2, 2013).

Expert’s Vision Cloudy on Testing Standards in Contact Lens Infringement Case

contact-lens-infringement-A-woman-putting-on-contact lenses

Recently, a personal health care product company (“Company R”) appealed from the district court’s judgment that a multinational health care company (JJVC) and its Advance® and Oasis® contact lenses didn’t infringe Company R’s U.S. Patent No. 5,712,327 (‘327 patent) for soft gas permeable contact lens. Company R challenged the trial court’s grant of judgment as a matter of law and its denial of Company R’s motion for a new trial.

Why You Should Use an Independent Expert Witness Rather than a Company Employee Expert

Picture of a justice building

Among the most important factors in moving ahead in a lawsuit is budget. Even the deepest pockets would rather save a buck than spend a buck. Common sense. But there are times when we rationalize irrationally because of the temptation of short-term thrift. As litigators, we have all experienced clients who are quite vocal and forceful in being frugal with respect to retaining expert witnesses.

Their reasoning seems almost self-evident and inescapable: why employ an outside expert to testify about a company when they already have an employee who already knows the business inside and out, and won’t cost a dime? An outsider will have to spend an inordinate amount of time getting up to speed with respect to the client’s business. While the employee expert can hit the ground running.  It’s this logic that oftentimes compels clients to be very forceful and sometimes intransigent when it comes to utilizing internal experts rather than external experts.

Case Study: Expert Witness “Crosses the Border” to the Land of Inadmissibility


An attorney and his law firm appealed a judgment in favor of the plaintiff, on behalf of nine other former clients (“former clients”).  The former clients claimed that he improperly deducted certain expenses from their recoveries when they settled personal injury suits against a pharmaceuticals company.

The attorney represented the former clients in litigation for personal injuries from taking the prescription diet drugs fenfluramine and phentermine—commonly known as “fen-phen.”  A federal multidistrict litigation (MDL) court certified a nationwide class action and designed the procedures to be followed by litigants who wanted to opt out of that and pursue individual claims.  One of the requirements was that opt-out litigants had to establish their eligibility to sue by taking an echocardiogram which resulted in a “FDA-positive.”  The attorney involved set up a nationwide echocardiogram program supervised by a board-certified cardiologist at a cost of more than $20 million.  More than 40,000 potential clients were screened and roughly 8,000 of them had “FDA-positive” echocardiograms that allowed the attorney to pursue their individual. His clients signed written contingency fee agreements that allowed him to recover reasonable expenses from each client’s claim. The attorney ended up with fee agreements with 8,051 clients.

Case Study: Expert Testimony Necessary on Relevant Standard of Care in Investment Fraud Case

Man in cuffs - arrested for laundering

The matters before District Judge Linda R. Reade in this case included the plaintiffs’ Motion for Partial Summary Judgment on Count IV against investment advisor Enterprise. This count alleged negligence and engaging in and attempting to engage in money laundering transactions.

Initially, 70 plaintiffs filed a complaint in October 2012 against 13 defendants.  Count I of the Complaint alleged that Enterprise violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). Count II of the complaint alleged that Enterprise conspired to violate RICO.  Count III alleged a breach of contract against Enterprise, and Count IV of the complaint alleged negligence against Enterprise. Counts 3 and 4 were brought by 41 individuals who maintained self-directed IRAs with Enterprise. The only remaining Defendants in this action were Enterprise and Sigillito, another investment advisor.

Sequestration of Expert Witness Sparks Appeal in Fire Case

Row of refridgerators in a school kitchen.

A Pennsylvania high school’s insurer brought a subrogation action for strict liability and breach of warranty against the manufacturer of a refrigerator that allegedly caused fire at the high school.

The Appellant is this case was an insurance company (“Indemnity”), which was the subrogee of the Unionville–Chadds Ford School (“School”).  Indemnity brought suit against an appliance manufacturer alleging strict liability and breach of warranty in the U.S. District Court for the Eastern District of Pennsylvania.

Appellate Court Reveals Expert OK to Testify in Trade Secrets Case


An Indiana software company brought an action against its former employees and new employer alleging violations of non-compete covenants and interference with their business by divulging confidential information and trade secrets.

The plaintiff company, in an interlocutory appeal, asked the Indiana Court of Appeals to review the trial court’s ruling to exclude the testimony of its expert witness on economics and business valuation.

Tow Truck Operator Expert: Assessing ‘Use’ in Insurance Coverage Disputes


As with any matter involving insurance coverage disputes, it is first necessary to assess whether the provisions of the policy specifically provide for coverage to a particular individual given the facts surrounding the incident. In cases in which a Plaintiff is seeking to confirm the availability of an employer’s insurance coverage, determinations commonly hinge upon whether the insured vehicle was being utilized for the purpose for which it was insured. Often time, considerations concerning ‘use’ include the evaluation of whether the injured was acting within the scope of his or her employment, such that the presence of an active relationship exists. For limitation purposes, this article focuses on an evaluation of the availability of insurance to truck drivers injured while allegedly acting within the scope of their employment as tow truck operators.

Tow Truck Operation Expert–Proving or Negating the Existence of Special Circumstances

Toe Truck and Operator

It is a well-established fact of law that the attachment of liability in a negligence action requires an initial determination as to the presence of a duty owed to the injured by an alleged tortfeasor. Therefore, in order for a Plaintiff to properly attach liability to an owner or bailee of a motor vehicle which has been stolen by a thief, it is necessary to show that the owner or bailee of such vehicle had a duty to protect third persons. Many jurisdictions follow the general rule that imposition of a duty is appropriate only if it can be shown that special circumstances exist which are sufficient to evoke a duty of care. Absent “special circumstances,” the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. Richards v. Stanley (1954) 43 Cal.2d 60, 65-66 [271 P.2d 23]; See also  Cruz v. Middlekauff Lincoln Mercury, Inc., 909 P.2d 1252, 1255 (Utah 1996).; Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 15 P.3d 1283, 1287 (2001); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986)Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 635 (Minn. 1978)Dix v. Motor Mkt., Inc., 540 S.W.2d 927, 932 (Mo. Ct. App. 1976)Felty v. City of Lawton, 578 P.2d 757, 761 (Okla. 1977).
“Considering special circumstances, then, is just another way of examining the degree of foreseeability of injury and whether the owner is subject to a duty to exercise reasonable care.” Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153, 1164-65 (1988). As with any negligence action, the specific circumstances of a case will guide the Court in its determination as to the appropriateness for application of the rule. As observed in Hergenrether v. East, 61 Cal.2d 440, 445 (1964), “each case must be considered on its own facts to determine whether the joint effect of them in toto justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of a vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk.” A number of special circumstances have been specifically enumerated among the jurisdictions that have imposed a duty upon the owner or bailee of an unattended tow truck which was stolen by a thief and subsequently caused injury to a third person. For limitation purposes, this article focuses on the imposition of a duty of care to owners or bailees of tow trucks.

Case Study: Expert Witness Shielded with Protection of Absolute-Privilege Doctrine

Closeup on business woman writing in document

In the fifth lawsuit between the parties’ litigation that has lasted nearly a decade, the respondents argued that the district court erred by dismissing or restricting their claims against and expert witness and some of the defendants based on absolute privilege.  The Minnesota Court of Appeals held that an expert witness who submits an affidavit in the course of a legal proceeding is absolutely immune from liability under the absolute-privilege doctrine.

Florida Shifts Expert Testimony Standard

Florida state flag

Florida Governor Rick Scott recently signed controversial legislation which overturned the long-standing thresholds as to what type of expert witness testimony is admissible in state courts.

HB 7015 restricts Florida state courts concerning the admission of expert testimony by abolishing the 90-year old Frye standard.  Frye allowed scientific evidence to be admitted if it was “generally accepted” as being reliable within the relevant scientific community. The new legislation sets out more rigorous criteria.  The shift is to Florida’s standards for evaluating the admissibility of expert witness testimony away from the Frye standard to the Daubert standard, which is used in federal courts and other states.

Case Study: Unlicensed Petroleum Engineering Experts May Gush on the Stand, Even If Law Caps Testimony

Petroleum engineer

The owner of the gas rights in a shallow zone brought action against the owner of the gas rights in deep zone of a specific Mississippi property.  The claim was that the shallow zone owner had a legitimate ownership interest in these rights and asserted conversion and negligence against owner of the deep zone. The Supreme Court of Mississippi held inter alia that as a matter of first impression, the statute making it unlawful to practice engineering in state without a license did not preclude an out-of-state engineering expert from testifying at trial.

Everything You Wanted to Know About School Safety but Were Sued First


On June 14, 2013, the nation paused to pray and remember the unspeakably horrific shooting, a massacre that claimed 26 lives, on December 14, 2012, at the Sandy Hook Elementary School, in Newtown Connecticut. The cruel irony, as legions of the country’s experts, myself included, continue to engage in differential diagnoses and soul-searching for answers as to who and what went wrong, is that Sandy Hook Elementary School probably could not have done anything more, different or better, to protect its students. Short of constructing a walled-in campus inside of which students would receive provisions and other necessities from the outside.

Lessons from the Supreme Court in International Law: What Attorneys Should Know and the Critical Role of Experts


Kiobel v. Royal Dutch Petroleum was a landmark case before the U.S. Supreme Court, involving questions of international law, jurisdiction and legal fora, and what attorneys should expect, when international human rights issues against corporations are adjudicated in U.S. courts.  The Supreme Court, in a unanimous opinion, discussed the issues at hand and, in so doing, helped put both American plaintiff and defense attorneys on notice, as to what to expect and how to best plan for cases involving corporate governance and international law.  See, e.g., Rich Stamp, “Supreme Court Observations: Kiobel v. Royal Dutch Petroleum & the Future of Alien Tort Litigation,” Forbes (Apr. 18, 2013).

Setting Your Sights on a Firearms and Ammunition Expert

Firearms - Handgun

In the past six months, the complexity of statutes and regulations has significantly increased for Federal Firearms Licensees (“FFL”).  New statutes, regulations, and guidance documents are being issued by federal, state, county, and local municipal bodies.  Audits remain a routine part of business operations.  And various organizations and associations are actively pursuing lawsuits on issues of constitutional law, including the Second Amendment to the United States Constitution.

Securities Law: A New Direction for Litigators and Experts, or a Fluke in the Trends?


2012 saw an interesting and highly unpredictable number of cases pertaining to securities litigation being filed; taking into account the Presidential election, the so-called “Fiscal Cliff,” AND Hurricane Sandy, statisticians and analysts alike are scratching their heads to determine the future of securities litigation.  See, e.g., Suzanne Dawson, “PwC Releases Latest Securities Litigation Study,” PricewaterhouseCoopers (Apr. 9, 2013).  As one securities expert explains:

While the first three quarters of 2012 saw an average of 46 cases, securities litigation filings decreased dramatically in the fourth quarter, to 33 cases—the lowest level since the 30 cases filed in the second quarter of 2009… In the U.S., the last quarter was affected by two pivotal events: the impending presidential election and the political uncertainty inherent in the run-up, and a looming “fiscal cliff” of automatic tax hikes and government spending cuts. …Superstorm Sandy may have played a role by interrupting transportation, shutting down power, and blocking access to the Internet and phone service in the Northeast, thereby disrupting law firms, courts, and financial markets. Id.

New Medical Malpractice Legislation in Florida: The Implications for the Legal Community & Expert Witnesses

Medical stethoscope

Attorneys and expert witnesses should be aware of recent legislation passed in Florida, which deeply divides the legal and medical communities, potentially changes the manner in which medical malpractice lawsuits will be tried and ultimately determined, and affects every litigator, in Florida and beyond.

In April 2013, the Florida Senate approved Senate Bill (SB) 1792, which “requires that expert witnesses called against a defendant doctor practice the exact same kind of medicine and not just be in “similar” fields.” ”Florida Senate Passes Bill on Medical Malpractice Expert Witnesses,” Associated Press (Apr. 15, 2013).  Moreover, under the bill’s provisions, any medical provider who has treated a patient and is called to testify is permitted to, “breach patient confidentiality and give attorneys information about a patient’s treatment.” Id.

Video Expert Witnesses—Optimizing Legal Support Resources

Video evidence and analysis

Because a multitude of methods exist by which video evidence can become tainted, evaluative measures should likewise include an equally diverse analysis. The complexities involved in establishing the authenticity, reliability, and credibility of video evidence requires comprehensive video analysis, which is more appropriately provided from an expert specialized in the field of video examination. However, legal support services employed for video analysis purposes, must be carefully selected such the expertise provided is both suitable and comprehensive, but also affordable.

Geological Expert Witnesses & Trends in Florida: Whether the Weather Matters, and What Attorneys Should Be Prepared to Handle


Florida, of late, has had many recent trends in civil litigation and requests for new legislation, particularly in the context of expert witnesses.  See, e.g. Helicon Foundation Repair, “Fraudulent Sinkhole Claims Increase As Geologists Blame Current Weather Trends,” Seffner, FL: Sinkhole News, (retrieved Jun. 3, 2013).  Many Florida residents have “been accused of spending insurance payouts on items not connected to foundation and cosmetic home repairs dues to sinkhole claims,” and, moreover, “insurance companies are requesting….legislatures change…laws concerning sinkhole claims.” Id. A “sinkhole” is a phenomenon, whereby groundwater dissolves and creates a void.  See Claims Journal, “Florida Property Insurer’s Board Reviewing Sinkhole Rates” (Oct. 13, 2011).

Business Records & Expert Witnesses: What Attorneys Should Know About the Shifting Burden of Proof & FRE 803(6)

Business records and documentation

The Federal Rules of Evidence have long provided myriad hearsay exceptions, in cases when testimony is introduced. One of the most important hearsay exceptions, particularly with respect to expert witness testimony, is the “business records” exception. FEDERAL RULES OF EVIDENCE (FRE) 803(6). Although many attorneys have an extensive level of familiarity with FRE 803(6) and the business records exemption, trends indicate that the burden of proof has changed, significantly affecting each litigator’s practice and every expert witness who relies upon business records to assist jurors in understanding testimony.

Civil Torts Arising from Criminal Cases: Circuit Splits Should Give Pause to Attorneys About Experts & “Hearsay” Testimony


Over the past year, not only have several circuit splits occurred, in cases where criminal defendants sue parties in civil court, claiming a tortious violation of their rights, but attorneys need to be aware of what is taking place in different geographical areas and the implications for their expert witnesses. Much of the controversy has centered on the standard of review for expert testimony on appeal.  With respect to this, one case has caused many legal analysts to do more than merely raise their eyebrows in confusion: Wagner v. County of Maricopa, where the Ninth Circuit Court of Appeals admitted to an existing “open issue in the circuit and circuit split on ‘whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review.’” “Prospective: Ten Key 2013 Evidence Issues,” Federal Evidence Review, (Jan. 1, 2013) (citing Wagner, 673 F.3d 977, 980 (9th Cir. 2012).

Part III: Consumer Products—Strict Liability and Breach of Warranty

Quality and consumer products visualization

Most jurisdictions allow consumers to bring claims under the concept of strict liability, that is, the manufacturer is held to be strictly liable simply for having placed a defective product into the stream of commerce which results in injury to the consumer. Strict liability for consumer products arose as a matter of public policy, with the intent to provide consumers with a means of legal recourse in the event of injuries sustained as the result of a defective product.  Strict liability has often been referred to as no-fault liability, in that, actions permitting claims of strict liability, can allow for recovery without the need to prove manufacturer fault.

Part I: Consumer Products—An Introduction to Liability

Household consumer products

Consumer Product Liability is a general terms that encompasses a much broader topic. To best understand the term, it is first necessary to know precisely what a consumer product is. When presented in its most simplistic terms, a product that is made available for consumption by the general public, and thus placed into the stream of commerce, is typically considered to be a consumer product. Pursuant to 15 U.S.C. §§ 2301(1) and (3):

  1. The term “consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed

Case Study: Condo Owner Tries to Trip up Expert Witness When Disclosed After Discovery Deadline


In a recent case, the Connecticut Supreme Court held, inter alia, that trial court did not abuse its discretion in allowing testimony by an expert who was disclosed by the plaintiff several months after the discovery scheduling deadline and one week before jury selection began.

A condo resident, who was also president of the condominium association’s board of directions, brought claims including negligence per se against the Condominium Association (condo) and the Management Company (management company, hired by the association) for injuries she sustained when she missed a concrete step while coming down from a roof deck of condo building. The plaintiff brought an action, alleging, inter alia, that the defendants negligently maintained the original step in violation of the building code.

The Confrontation Clause, The Supreme Court, & Experts: Recent Trends and Helpful Guidance

Crime lab worker

Crime lab workerOne of the most pressing issues before attorneys and courts has arisen in the wake of a highly unclear decision issued by the Supreme Court, concerning the Confrontation Clause of the Sixth Amendment to the Constitution, and whether expert testimony is permissible under that Clause.  See Williams v. Illinois, 132 S.Ct. 2221 (Jun. 28, 2012).  After the Supreme Court issued a 5-4 decision, with two separate pluralities (4 concurring opinions) and one lone dissent, the lower courts have had a trying time applying Williams to expert testimony.  For the litigator, however, it is important to understand what Williams did and didn’t say, what lower courts are likely to do, and why all of this greatly affects experts.  Whether the case at hand is civil or criminal, Williams has been discussed and grappled with by nearly every lower court and, accordingly, regardless of practice area, its potential implications should be made clear to every attorney.

Case Study on the “Exceptional Circumstances” Test

Mortage application

The “exceptional circumstances” test is used to determine if a party can depose an examining physician who is not designated by the other party as an expert witness.  In this recent case from Nevada federal court, a mortgagor sought to depose a non-designated psychologist who had examined the mortgagor pursuant to court-ordered independent medical examination.  The defendants filed emergency motion for protective order and motion to strike mortgagor’s expert designation of the psychologist.

Case Study: Bank Miscalculates Expert’s Value in Defining Directors’ Duties


A bank brought action against an accounting firm and its partner for aiding and abetting former bank directors in breach of statutory duties, professional negligence, breach of fiduciary duty, and statutory violations.  The Court of Appeals, held that statutory language stating a bank director’s duties did not make an accounting firm’s expert witness’s testimony unnecessary with regard to the specific duties of the directors.

Expert Witness Referral and Consulting Firm ForensisGroup Featured on Viewpoints with Terry Bradshaw – Press Release

ForensisGroup, the nation’s leading expert witness and consulting services company, was featured on the television program Viewpoints with Terry Bradshaw on May 15th, 2013. The segment was broadcast nationally on Discovery Channel Transponder as well as broadcast on several regional cable networks. During the feature, ForensisGroup CEO Mercy Tolentino Steenwyk shed light on the importance of expert witnesses and reveals how ForensisGroup has helped match clients with consultants and expert witnesses in over 10,000 cases.

Are the Requirements for Psychiatric Expert Testimony Becoming Too Precise?

spine expert witness x-ray concept

The Journal of the American Academy of Psychiatry Law 41:1:134-136 (March 2013), authors Dor Marie Arroyo-Carrero, MD, and Charles Dike, MD, MPH, MCRPsych, wrote a fascinating article regarding a Missouri wrongful death matter and the admissibility of psychiatric testimony. The crux of the issue involves the American Psychiatric Association’s (APA’s) “bible,” Diagnostics and Statistical Methods IV (DSM IV).

The importance of the DSM IV cannot be overstated. It is the sine qua non for much of prescriptive medicine and analysis for mental disorders today. When it was first published in 1952, it contained 102 diagnoses in 130 pages.  DSM II was published in 1968, listed 182 disorders, and was a svelte 134 pages long. By 1980, the DSM-III grew to 494 pages and listed 265 diagnostic categories. The current edition, DSM IV published in 1994, (allegedly soon to be replaced by the DSM V), has ballooned to 297 disorders in 886 pages.

Expert Witnesses & Gender Dynamics: What Every Attorney Should Know About Female Expert Witnesses

What gender is your expert witness?

To many attorneys, it may seem self-evident that a good expert witness, whether male or female, will be well-received by courts and juries, regardless of sex or gender.  Certainly, in this new year and century, that is the hope.  However, many studies, both anecdotal and statistical, have found that female expert witnesses, who are not coached to prepare themselves for gender biases, may have difficulties on the stand.  Thus, it becomes imperative for attorneys to be aware of these biases, to train their experts appropriately, and to effectively counteract those predispositions, ultimately making their credible female experts even more effective in testimony.  Moreover, there are strategies to help attorneys utilize their female experts in a way that makes them perceptually more likable than their male counterparts, so the techniques discussed herein apply to all attorneys and to coaching men and women, in distinct ways that will sway jurors and deter intrusive cross-examination.

Case Study: Trustee Gambles on Experts’ Testimony to Recover Millions from Casino

Casino expert witness playing roulette

CasinoExpert testimony was one of the key issues in a recent case in Federal District Court in Nevada, where a bankruptcy trustee sought to recover $10 million from a Las Vegas casino in an alleged Ponzi scheme.  District Judge Phillip M. Pro was presented with Motions for Summary Judgment by Defendant (“Casino”).  Also before the Court were the Casino’s motions to exclude the expert testimony of RL, AS, and PD.  The plaintiff (“Trustee”) opposed those motions.

Case Study: Anti-Shoplifting Device Patent Stolen by Competitor, Expert Says

Patent infringement

Two competitors in the “resonance tags” manufacturing business are involved in a recent patent infringement litigation.  Resonance tags are electronic anti-shoplifting devices that are attached to merchandise so if the tag is not deactivated by a cashier at check-out, the tag triggers an alarm when those goods move past detectors at the store’s exit.

In litigation over the design of these electronic anti-shoplifting devices, a jury found the defendant company did not infringe on the plaintiff’s patent.  The U.S. District Court for the Eastern District of Pennsylvania also found case “exceptional” as to 35 U.S.C. § 285 and awarded the defendant roughly $6.6 million in attorney fees, costs, and interest.  The plaintiff company appealed that award.

Hydraulic Fracking: Why It’s Newsworthy and the Role of Expert Witnesses

Hydrolic fracking

Hydrauling fracking (also known as “fracturing”) has been a practice of fossil fuel providers for decades.  It has been in practice since 1949, and analysts estimate that globally, some 60% of new oil or gas reservoirs and wells were located and mined using hydraulic fracking technology. Montgomery, Carl T. & Smith, Michael B. “Hydraulic fracturing. History of an enduring technology,” Society of Petroleum Engineers 26–41 (2010-12-105).  Recently, however, a controversy has arisen between the benefits of the fracking process and its potential environmental implications.  Legislation, proposed legislation, and litigation have ensued, all echoing a certain call: that the legal community is in dire need of an educated understanding of fracking, and expert witnesses are the very people to give us that lesson.

Case Study: Expert Witness OK to Testify to Facts Outside Specialty and Without Examining the Patient

civil litigation expert witness

The court of appeals in Nebraska recently held that an expert witness may testify to facts outside the field of his specialty so long as he shows familiarity with the specialties and the treatments provided.  The court also said that a physician need not examine a patient in order to provide testimony if the testimony is based on scientific, technical, or other specialized knowledge and assists the trier of fact to understand the evidence or to determine a fact in issue.

When the Expert Witness Is Unavailable to Testify

Expert swearing in

Recent litigation news around the death of an expert witness at or near the time of trial is a poignant reminder about the critical importance of preparation for trial, including the use of understudies in case the star cannot take center stage.

Strategies for Litigators to Make the Most of Their Expert Witnesses: Part III: How Attorneys Can Best Prepare Their Experts for Trial

Commercial Litigation


Part I of this series discussed the different kind of witnesses who can testify in court and more importantly, and how to anticipate opposing counsel’s objections and best prepare.

Part II noted mechanisms attorneys can avail themselves of, to most-successfully train their expert witnesses before a case goes to trial.

This Part involves strategies that attorneys should be aware of, based upon empirical and sociological data, to help coach their witnesses and make their experts’ testimony appear to be as qualified and outstanding as the experts truly are.

Strategies for Litigators to make the Most of Their Expert Witnesses: Part II: Pre-Trial Strategies for Attorneys to Best Prepare Experts

Commercial Litigation


Part I of this series discussed the different kind of witnesses who can testify in court and more importantly, the importance of understanding how placing an expert in the right category can assist attorneys in anticipating and avoiding opposing counsels’ potential objections to various aspects of expert testimony, but also understanding how to plan ahead, thereby making use of the Federal Rules of Evidence and other mechanisms for make the best possible use of expert witnesses.

Case Study: Airline’s Industry Expert Cleared for Take-off in Suit with Passengers


District Judge Miranda M. Du in Nevada recently heard arguments on a motion to exclude the testimony of Defendant’s airline industry expert witness.

The plaintiffs were nine passengers (“the Nine”) who traveled on a flight from Vancouver to Las Vegas in 2003.  The Nine alleged that the flight captain and two flight attendants accused them of criminal interference with an air crew.  The flight was diverted to Reno, and the Nine were removed from the plane.

Strategies for Litigators to Make the Most of Their Expert Witnesses: Part I: Pre-Trial Strategies: What Kind of Expert Are You Working With?

commercial litigation expert witness in court


Every attorney who has tried a case and retained expert witnesses realizes the value of expert testimony, but do all litigators truly understand the best ways to strategically utilize their experts and therefore, maximize their prospects for success?  This article investigates some common ambiguities and approaches for attorneys with respect to expert witness testimony and, based upon several psychological studies and statistical analyses of jury behavior, offers strategic advice to litigators, allowing them to deploy their experts in the most valuable manner possible.  To assist in comprehending both the basis and content of the proposed strategies in this article, several instances of expert testimony, involving the most effective ways to prepare for cases and use experts, will be discussed.2

Trade Secret Experts Not So Top Secret

Trade secrets

The White House recently announced its “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets” (February 2013).  At 131-pages, it’s packed full of information from a lesser-known agency, the Defense Security Service, which builds on industry reports to develop analytical assessments of threats to U.S. information and technology.

Trademark Infringement Experts: The Benefit of Due Diligence in Consultation and Litigation


The interpretive nature of trademark related litigation as it correlates to issues such as public perception, confusion, dilution, and deception, can be highly problematic when attempting to prove or disprove the existence of a trademark infringement. Pursuant to 15 U.S.C 1127, commonly known as the Lanham Act, the term “trademark” is defined to include “any word, name, symbol, or device, or any combination thereof—

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,

to identify and distinguish his or her goods including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if the source is unknown.”

Independent Experts in Oil and Gas Mergers and Acquisitions: Defusing the Factors That Can Inflame Litigation

Oil and gas fields

Mergers and acquisitions are a hot topic in the oil and gas industry at present.  This article sets out some of the human factors that can affect a business decision about a proposed merger or acquisition and the ways that use of an outside expert during the merger process can favorably affect potential litigation over the transaction.  Specifically, this article analyzes the interaction of psychological factors at play within the framework of objective factors in a dynamic field such as oil and gas in Texas.

Patent Litigation Trends in California: Patent Infringement Expert Witnesses, Damages & the Nash Bargaining Theory

Patents expert witness stamp

Patent litigation is on the rise, and the number of patent infringement suits before the courts is at an all-time high.   See “2012 Patent Litigation Study,” PriceWaterhouseCoopers (PWC), 2012.  However, many attorneys and litigants are unaware of what the current trends are with respect to damages, if a party prevails in patent litigation.  Patent infringement experts are critical to this process, so it is important to understand recent changes in judicial findings, regarding expert testimony and measuring damages.

Product Liability, “State of the Art” Design, and What Should Be Expected of Experts


On both a national scale and in California courts, product liability cases increasingly require the use of expert witness testimony on both sides, to determine whether a specific manufacturer should incur liability in court for an alleged product defect.  A product liability expert witness can be the key in such cases, because many jurors’ most probing inquiry in such cases often and inaccurately revolves around the issue of whether the product conforms to the standards of a particular industry.  The actual legal standard for product liability cases dealing with negligence is whether or not the product was “state of the art” at the time it was manufactured.

Going to Credibility and Weight – Not to Admissibility


It’s an important distinction to master:  whether the testimony of the expert witness goes to a credibility determination to be made by the trier of fact or whether the testimony of the expert witness may be inadmissible as per a ruling from the bench.

Trial attorneys tend to be well prepared.  Trial is a serious matter, generally conducted with advance notice.  And a combination of factors, including the attorney’s own reputation, generally creates a suitable level of advance preparation.  The corollary of this observation tends to be that the witness offered as an expert gets qualified and the testimony elicited on direct examination tends to get admitted.

Sociological Analysis on Juror Impact of Expert Testimony in Awarding Damages

Predatory Lenders expert flashing out money

Often times, the considerations in jury deliberations are unrelated liability or fault, and may focus on the fixed amounts, perceived as adequate compensation, to each juror. Some jurors may have preconceived notions that attorneys ask for more than is required to adequately compensate an injured party. Some jurors may consider factors such as attorney’s fees, taxable portions of award amounts, or the Plaintiff’s Insurance, to provide a framework for arriving at an award amount. Whatever factors a juror utilizes to reduce or supplement an award amount, this perception of a base award amount must first be established.

What to Make of the Expert Witness C.V.

'C.V.' or curriculum vitae

How many times do we hear the advice to limit one’s resume to one page?  But when it comes to written credentials, when does the resume become a “curriculum vitae” and do any page limits apply?

The general rule of thumb on resumes is that once a person begins publishing, lecturing, and training others, the resume changes structure into the “curriculum vitae.”  The “CV” can be thought of as a bibliography of one’s career.

Why California Courts May Exclude Expert Testimony and How to Prevent This

class certification expert

In California, nearly every type of civil litigation involves the use of expert witnesses and their testimony.  However, the trial judge, as gatekeeper, can and often does preclude certain expert testimony from being considered evidence in a case.  The clear dilemma for legal practitioners and litigants is to ensure that the expert testimony they utilize will not be excluded but will, instead, be considered reliable and persuasive to judges and juries.

Hiring the Right Forensic Accounting Expert Witness

accounting expert witness work desk

Attorneys, judges, and forensic accountants view the expert witness from different perspectives. Attorneys’ hire expert witnesses to arrive at favorable conclusions for the case, and to rebut the opposing expert. Judges will rely on the experts’ knowledge and give more weight to their conclusions, when the judge cannot reach one without such assistance.

Expert Witnesses in Medical Malpractice Litigation: Challenges, Trends, and Strategies to Obtain the Best Testimony

medical-malpractice expert witness x-ray

Since at least the late 19th century, the legal and medical professions have attempted to grapple with how to utilize paid expert witnesses in a manner most conducive to the interests of litigants and justice.  Medical expert testimony differs from other types of expert testimony in that medical experts typically do not use as many objective criteria as other types of experts.  Unlike an actuary, for example, who can point to a specific formula used to assess the amount of damages due to an individual, medical experts are limited, to an extent, in making such objective assessments of when the “standard of care” has been neglected.

Tips on Expert Witness Discovery

Gavel on paper

Is there anything worse than the feeling when you receive the demand for expert witness information during litigation?  Even if the demand is appropriately crafted to comply with applicable rules of discovery, you have tactical decisions to make.

First on the list of discovery response concerns is whether you have retained an expert witness.  You may be in the uncomfortable position of heading into the discovery stage of litigation with only preliminary work undertaken in your selection process.  Do you ask for an extension to respond or do you timely acknowledge you have not retained an expert but will update when you do?

Using Expert Witnesses and Testimony in Civil Trials: Ensuring That Your Experts Are the Best You Can Get


Since the early 1990s, expert witness testimony has been on the rise and, as more experts have testified in civil cases, more challenges to their qualifications have ensued.  Here, we explain two concepts concerning expert witnesses and testimony: (1) what the standard for a “qualified” expert is, and (2) how to best ensure that, when using expert testimony, you get the most qualified person possible.

Finding The Right Medical Malpractice Expert Witness

Legal Malpractice dictionary definition

Medical malpractice cases can involve claims for significant injury with corresponding demands for significant damages.  It is an area of law that predictably requires the testimony of an expert witness.

Just how closely do you need to tie your expert witness to the allegations at hand?

Taking to Heart an Expert’s Change of Mind


When to hire an expert witness is a strategic decision trial attorneys take seriously.  In some states in certain types of lawsuits, an expert witness must provide an opinion before a case can even be filed.  In other cases and jurisdictions, it can come down to the wire of a court order to exchange expert witness reports.  It can even be done during trial where a rebuttal is needed.

Becoming an Expert in Hiring an Expert


Regardless of the area of law, if you plan to present an expert witness for testimony, you need to think about expert witness trial testimony before and during expert witness selection, as well as early on in your working relationship.  Here are four tips for you to consider in this regard.

Construction Delays: Who Is Qualified to Offer Expert Opinion


A large portion of litigation claims arising from construction projects stems from delays in the work schedule.  This sounds simple enough, but the actual cause of the delay can be quite complicated and confusing.  Was it the weather, lack of materials, safety issues, labor strife, or was it something else?  Was the delay foreseeable and preventable?

Creative Use of Experts in the Preparation of Corporate Governance Cases: Part 2


Part 2:  Fiduciary Duty Experts

By Donna C Kline, Attorney at Law

The conceptual and moral nature of corporate governance and corporate negligence litigation

The elements and nature of corporate governance litigation are well known to all commercial litigators, but a brief review of the conceptual structure of corporate governance places the role of experts in perspective.  In particular, it shows how an expert on fiduciary duty can help counsel formulate the story of the case.

Creative Use of Experts in the Preparation of Corporate Governance Cases


Part 1:  Industry Experts

By Donna C Kline, Attorney at Law

Early, creative, and well-focused use of consulting experts in corporate governance litigation can help the lawyers assemble the four key components of a successful trial.  Although a corporate governance case may involve sophisticated business concepts and complex technical or financial facts, the case still must be presented in a persuasive manner to a jury of ordinary persons who have only a few days to gain an appropriate understanding of those concepts and facts.  To persuade the jury to return a favorable verdict, the facts must be presented in a manner that dovetails with the legal instructions that the judge will give and that resonates with the jury’s moral sense of the case.   This article describes the vital role that an industry expert and a fiduciary duty expert can play in trial preparation.

Testing the Limits of Discovery of Non-testifying Experts


In a recent patent infringement case from the District Court for the North District of Illinois, Judge Amy St. Eve granted Plaintiff Sloan Valve Company’s (Sloan) motion for a protective order.  The order barred the Defendants, Zurn Industries, Inc. and Zurn Industries, LLC (Zurn) from deposing a Sloan attorney on the plaintiff’s patent infringement contentions.  Zurn was creative in its use of the Rules of Civil Procedure, but those efforts did not convince the judge who ruled against them.

Trends in Expert Testimony Requirements for Class Action Litigation


When the Supreme Court heard arguments in Comcast Corp. v. Behrend last week, there was a great deal of talk about the Daubert test for admissibility. Because the Court’s ruling could have enormous impact on how expert witnesses are evaluated for class action litigation, it is worth reviewing what really Daubert requires, especially as it relates to the landmark Wal-Mart Stores v. Dukes case from last year.

The Water Below: Water Vapor and Concrete Slabs

By Expert No. 159616


Poet Rupert Brooke once wrote that good shall come of water. He obviously never dealt with concrete. One of the lesser known yet more frustrating sources of water damage can occur on a concrete slab on grade. A concrete slab on grade is a flat area of concrete, poured directly on the earth or water membrane. This is where flooring – wood, carpet, tile, – is laid in residential construction.

Moisture Problems Plague Flooring from Concrete Slabs on Grade

Water or water vapor rising out of a concrete slab on grade can cause adhesion loss, warping, peeling and an unacceptable appearance of resilient floor coverings.  Beneath seamed, continuous flooring, moisture can also cause adhesive deterioration, ripping or separation of seams and air bubbles or efflorescence deposits.  Other harmful effects include damage to flat electrical cable systems, buckling of carpet or carpet tiles, odors, and fungi growth.

Tips to Survive Destructive Testing

By Expert No. 159616


Destructive testing is much like exploratory surgery – intrusive, expensive, uncomfortable, inconvenient and the last resort for determining the cause of a problem.  Every effort should be made prior to destructive testing to evaluate the nature of the complaint.  And like surgery, the expert conducting the destructive testing should know what he is looking for and be prepared for whatever he may find.  This is because destructive testing, if not handled properly by attorneys and their experts, can accomplish little and may actually damage a plaintiff’s case.

Is it a good idea for engineering expert witnesses to “complete the loop”?

By Expert No. 319207


As engineers, we like to think that we are doing some service to society by getting involved in lawsuits and helping to sort out engineering truth from engineering fiction.  We also like to think that, somewhere, somehow, for some reason, somebody is paying attention to our expert opinions and changing the way they do business to correct design, construction or operational flaws.  Then again, the lawsuit may settle without anyone learning from the mistakes.

Finding the Perfect Expert Witness: Why an Expert Must Wear Many Hats


Attorneys looking for expert witnesses to solidify their positions need to consider several factors when choosing an expert. If an expert possesses certain skills while lacking others, he or she might hinder a case more than advance it. For example, you might find an extremely qualified expert who is respected in his field. However, if he is not a competent public speaker, it could be detrimental if the case goes to trial. An expert witness must be something of a Renaissance man (or woman), possessing a variety of attributes.

3 Typical Scenarios That Require Expert Witnesses


For every machine that breaks or heart that stops beating, there is someone who possesses the experience and training to answer why. In fact, for virtually any dispute brought to trial there exists someone who possesses that extra knowledge necessary to deliver a stronger—and hopefully winning—argument. In fact, certain situations demand expert testimony. At other times, expert testimony is necessary to offset an opposing legal team’s arguments. If, for example, you are the plaintiff in a case about corporate negligence and the defense hires a competent expert, showing up to trial without an expert of your own could be equivalent to bringing a knife to a gunfight.

Here are three typical scenarios that demand the use of an expert witness:

Patent Infringement: Expert Witnesses and the High Stakes Technology Space

Patent Infringement Patent Validity

Major companies are involved in various important technological patent litigation cases requiring highly specialized experts working along top Patent Prosecution and Patent Litigation attorneys. These cases often arise when brands are competing in the technology space. Since many technical products are built on the shoulders of previous technology and designs, the line between innovation and infringement can, at times, blur.

Real Estate Expert Witnesses Can Impact Land Use Cases


Land Use Planning refers to a branch of public policy having to do with the regulation of land to be used in an efficient way.  Land use planning has a view to ensure that land is used in a way that supports the physical, economic and social well-being of a community.

Three Causes of the Subprime Mortgage Crisis

residential real estate homes in a blue sky

Illinois Attorney General Lisa Madigan’s recent lawsuit against S&P is the latest example of fallout from the subprime mortgage crisis. The mortgage crisis, one of the leading indicators of the U.S. financial crisis that began in 2007, was characterized by a marked increase in foreclosures and mortgage delinquencies. Subprime mortgages refer to mortgages that are risky and are considered to be of a lower quality than mortgages that are relatively secure. The increasing number of delinquencies led to a decline in mortgage-backed securities.

5 Ways to Stay Clear of Mortgage Modification Fraud

Mortgage Fraud stuff

An unfortunate side-effect of the foreclosure epidemic is a rise in mortgage modification fraud. As the housing market has plummeted, scam artists have been able to convince desperate homeowners to pay a fee in exchange for false promises of lowering their mortgage or monthly payments.

Product Liability: How Expert Witness Testimony Affected the McDonald’s Coffee Case


Most people in the United States remember something about the Liebeck v. McDonald’s Restaurants case. The case involved a woman, Stella Liebeck, who suffered third degree burns after spilling McDonald’s hot coffee on her pelvic region. The case became famous due to the fact that Ms. Liebeck was eventually awarded $2.7 million in punitive damages. The case, which sparked a national debate about tort reform, is one of the most famous examples of a product liability suit.

STANDARD OF CARE: What Standard, Who Cares?

By: Expert No. 164453 M.D. Abstract A hundred years ago, one man could master the cumulative medical knowledge of all humanity. Today, one man could spend a lifetime reading the new findings published in a single year. We doctors learn it ‘all’ in medical school. But, of course, that is not enough. We must keep … Continued

The Whistleblower and the RIA

By Expert No. 361382 CFP, CTFA, CDFA Abstract Most people are quite familiar with Broker-Dealers — wirehouses such as Morgan Stanley Smith Barney or Merrill Lynch. The broker-dealer is essentially a sales organization that charges clients either a transactional commission or utilizes a fee in lieu of commission platform. The minimal threshold of “suitability” is the … Continued

When to Consult a Security Investment Management Expert Witness

Event Security expert witness on duty

When most people think of the word security, they might think of an alarm system that protects their home or car. However, in the world of finance, a security refers to a negotiable financial instrument representing value. Securities are qualified as debt securities (such as bank notes or bonds), equity securities (such as common stocks and mutual funds) and derivative securities (such as hedge funds and futures). Securities were originally represented by certificates, but increasingly, they’ve come to be represented electronically.

Protecting Your Business with Professional Liability Insurance

Liability claims word cloud concept

When operating a business that provides services to consumers, there is often an inherent risk of something going wrong. It’s possible for consumers to get food poisoning from a restaurant or to injure themselves while swimming in a public pool that isn’t properly constructed. No matter how well-trained a staff, the risk of consumer harm does not tend to disappear completely. That’s where liability insurance comes in. General liability insurance can protect businesses against acts that cause damage to people’s health or property.

Should Web Hosts Protect the Intellectual Property on Their IPs?

intellectual property expert witness word cloud

In early March, Yahoo! filed a patent infringement lawsuit against Facebook. It’s spurring questions over whether or not patent law is too broad and if patent law needs to be reexamined. Patent law suits are becoming a standard part of the technology business these days. As more large websites go public, shareholders in IPOs have an interest in trying to make certain that they can be compensated for any unlawful uses of their intellectual property.

What Qualifies as Corporate Negligence?


Corporate negligence can often be difficult to establish. For a corporation to be declared negligent, it must be proven that a corporation or one of its employees did undue harm to a third party by breaching their responsibility.

Understanding the Industrial Engineering Industry

Industrial Engineering expert witness working on a rooftop

In order to find an engineering expert witness, it’s vital for attorneys to understand that the industrial engineering industry is multi-faceted. In addition to there being several types of industrial engineers, there are manifold career paths that might lead an engineer to expert qualification.

Legal Malpractice Is a Growing Field of Law

Legal Malpractice dictionary definition

Legal malpractice is a term that refers to breach of contract, breach of fiduciary duty or negligence by an attorney that causes harm to a client. For an attorney’s negligence to be considered malpractice, an injured party must prove that the attorney’s actions exceed poor strategy. Rather, it must be established that the attorney’s actions resulted in errors that no reasonable attorney would make.

Pregnant Women Still Face Employment Discrimination in the Workplace


Three fourths of women now entering the workforce will become pregnant on the job. The Pregnancy Discrimination Act (PDA) was designed to prevent employment discrimination when it comes to any aspect of pregnancy, including hiring, firing, promotions, layoffs, fringe benefits or any other terms of employment.  However, due to a gap between anti-discrimination and disability law, many women still face termination due to their pregnancies.

7 Ways That Workers’ Compensation Expert Witnesses Can Provide Support


Workers compensation expert witnesses possess specialized knowledge that can allow them to deliver credible analysis both prior to and during litigation. Since workers compensation trials can involve complicated technical issues, it can pay to retain a witness who is familiar with the particulars of your trial. Whether the trial involves insurance premiums, audits, code disputes or experience modification factors, experts can help you understand complex issues and minimize the impact of opposition experts.