Articles Posted in Trial Strategy

In Cross-Examining a Financial Expert, white collar crime expert witness Mr. Henry J. Kahrs, CPA/ABV/CFF, CMA, CFE, CM of RGL Forensics writes:

The trial’s going well, and you’ve arrived at a crucial point in the case: the cross-examination of the opposing financial expert. For many attorneys, this can be a watershed moment: how well you are able to cross-examine this expert, and convey the appropriate message to the jury or judge, can significantly impact the damages sought.

With their specialized training, financial experts can often have the advantage when facing a questioner inexperienced with complex financial terms or concepts. Attorneys may inadvertently interchange common language with “terms of art,” or use terms in ways that demonstrate a lack of familiarity with the theories of the discipline. Resulting answers from the expert may vary dramatically from the expected or, in the alternative, provide the expert with an opportunity to show his command of the topic. This can lead to confusion in the court, or give the opposing expert additional credibility.

Space planning expert witnesses may write reports on residential designs, architectural interiors and related topices. At Whole Building Design Guide.org, Frances Mazarella, ASID, LEED AP, GSA defines interior design:

Interior design concerns itself with more than just the visual or ambient enhancement of an interior space; it seeks to optimize and harmonize the uses to which the built environment will be put. Thus, in the words of the U.S. Bureau of Labor Statistics, it is “practical, aesthetic, and conducive to intended purposes, such as raising productivity, selling merchandise, or improving life style.” Interior design is a practice that responds to changes in the economy, organization, technology, demographics, and business goals of an organization.

Read more wbdg.org.

In Ten Mistakes Attorneys Make Regarding Their Expert Witnesses, medical expert witness Barry Gustin, MD, MPH, FAAEP, writes:

Mistake 2: Delay It is one of the most common mistakes attorneys make: Waiting too long to locate, or once located, engage an expert. Lawyers have a mistaken belief that they will be able to find an expert quickly. They fail to consider that finding the best expert can take time particularly in a complex case and when multiple experts are needed. Once found, experts must be engaged quickly to insure that they aren’t booked by opposing counsel. Sometimes, lawyers inherit the delay when they take over a case from someone else. However, most of the time, it is easy to avoid the 11th hour time crunch simply by starting early.

How early? Start your search as soon as you have received your initial screening review and you have decided to take the case. After this initial review you should be in a position to know what specialties are involved and what kinds of expert you need. Start your search early and you will find the right expert, and you will increase your chances that the ideal experts will be available to you.

In Ten Mistakes Attorneys Make Regarding Their Expert Witnesses, trauma medicine expert witness Barry Gustin, MD, MPH, FAAEP, writes:

Optimal expert witness management often makes the difference between successfully managing your case or undermining it. Over the years I have identified ten common mistakes attorneys make when hiring and managing experts. Any one of these mistakes can have significant consequences ranging from spending too much for your experts to losing your case. Here’s the list of ten:

Mistake 1: Preliminary Case Screening

In The Social Worker as an Expert Witness in Suspected Child Abuse Cases: A Primer for Beginners, LeRoy Schultz offers guidelines to the social services expert witness:

Before the cross exam, in your pretrial conference with your attorney, you will have discussed the weakest points in your testimony. Ask for directions from your attorney on how to handle these. Be prepared for intense scrutiny of your information, argue well, but not emotionally. The intent of the opposing attorney is to discredit you. Expect denigration and sarcasm but stay calm and professional. You can be discredited in front of the jury by:

1. Lack of licensing or evidence of falsification of credentials.

After being convicted of premeditated first degree murder, Jeremy Hull took his case to the Minnesota Supreme Court. The reason the defense is appealing the case has to do primarily with their belief that the Mille Lacs County District Court should have granted a Frye hearing in regards to fingerprinting and handwriting evidence.

Assistant Minnesota Attorney General Kimberly Parker argued that a Frye hearing is for novel or emerging techniques and that the report Carlson referred to is not novel or emerging and that it’s the burden of the defense to prove there is novel or emerging techniques. “There’s nothing new here,” she said. But a judge countered that the report is saying the technique is in question and not necessarily valid. The assistant attorney general also pointed out that the defense had an opportunity at trial to attack the handwriting issue, but they did not provide handwriting expert witness testimony to say it wasn’t his handwriting.

For more, see MilleLacsCountyTimes.com.

After being convicted of premeditated first degree murder, Jeremy Hull took his case to the Minnesota Supreme Court. It’s an automatic appeal and Hull did not waive his right to appeal. Hull, 26, was convicted in 2008 of killing Lewis Wilczek of Little Falls in April 2007, then dismembering, burning and burying Wilczek’s body outside of Foreston. After killing Wilczek, he stole the 21-year-old’s identity. The reason the defense is appealing the case has to do primarily with their belief that the Mille Lacs County District Court should have granted a Frye hearing in regards to expert witness testimony on fingerprinting and handwriting evidence.

A Frye hearing is used to determine whether scientific evidence (produced by an expert witness) is admissible in court. In the 1923 federal Court of Appeals case Frye v. United States, the court held that expert testimony is admissible when the technique or theory it is based on has gained “general acceptance” in the relevant scientific community. In a Frye hearing, the trial court determines whether or not given testimony is, in fact, generally accepted (a Frye hearing is typically called after prosecutors or defense lawyers move to exclude the testimony of an expert witness).

For more, see MilleLacsCountyTimes.com.

The Ohio Supreme Court recently approved new rules governing pretrial procedures that will help ensure those convicted of crimes are truly guilty, according to Thomas Moyer, chief justice of the Ohio Supreme Court. The amendment to Rule 16 of the Ohio Rules of Criminal Procedure will require greater sharing of evidence between prosecutors and defense attorneys before trial.

One of the major rule changes relates to witness statements, which prosecutors are currently allowed to withhold until trial. Under the new law, witness statements would have to be shared with defense counsel ahead of time, along with other information from police reports. Defense attorneys have complained for the past 35 years that county prosecutors in Ohio have had an unfair advantage because they could withhold certain evidence.

Defense attorneys would be required to hand over witness statements they have obtained. Their criminology expert witnesses would also be required to provide written reports before trial or else they would not be allowed to testify.

In The Role of Trial Counsel and House Counsel: Preparation of the Quality Control Witness for Deposition and Trial Testimony, authors Warren W. Eginton and Clifford L. Whitehill-Yarza, write:

Product liability cases require prevention and preparation by corporate and retained attorneys as well as by subject experts. Prevention activities include a prevention review, careful maintenance of blueprint and specifications files, file retention programs for in-house memoranda, and proper use of warranty disclaimers. Once the company receives a writ notifying it of litigation, it should assemble a defense team, consisting of the corporate attorney, an engineer, departmental representatives, and, if appropriate, a representative from the insurance carrier. An early responsibility for the team is to preserve the product and its files and to question witnesses. If an expert witness will appear at the trial, that person should be selected with care. Selection criteria include strong academic credentials and communication skills. Experienced expert witnesses should have no more than two-thirds of their cases devoted solely to either the defense or plaintiff side. The witness should prepare draft and final reports, doing so without retaining notes. Ideally, the witness should participate in a mock trial and then attend every day of the real trial. When on the stand, the expert ought to dress conservatively, speak loudly and clearly, and maintain the same demeanor when responding to both direct and cross examination questions.

For full article, see http://www.asq.org/qic/display-item/index.pl?item=10525.

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Insurance bad faith cases offer an early opportunity for resolution for several reasons. First of all, they are expensive to prepare and try. Capturing the case early, evaluating the damages, and looking at the down the line costs should motivate both sides to review the case to see if mediation at an early stage is prudent. Second, insurance bad faith cases present a unique opportunity for an early evaluation. If there are coverage issues, they can be evaluated by reviewing the policy provisions and the applicable law. Because there is already a “paper trail” called a “claims file,” there is an excellent source of information for preparing a chronology of claims handling and learning what was done and why. Once the pertinent files are obtained, you should have considerable information about the claims handling, and the reasoning, or lack of such, behind it.

The pertinent insurance company files can be obtained and reviewed early in the case. This may include underwriting and claims files as well as industry and company manuals as a means for evaluating how the claim was handled – that is, what was done and why. The client and client representatives, such as brokers should be interviewed and files obtained for review. On the defense side, the company personnel should be interviewed to determine the basis for underwriting and claims decisions.