Articles Posted in Trial Strategy

In Survey Research to Support Litigation, survey research expert witness Dr. Larry Chiagouris writes:

Survey research is used to provide greater levels of understanding in a wide variety of disputes. Issues such as consumer confusion, misleading advertising claims, disparagement, copyright infringement and trademark disputes can be better assessed as a result of developing and executing survey research. The purpose of this monograph is to aid attorneys in understanding what research standards and guidelines might be relied upon in their use of survey research.

Attorneys will often refer to documents well established within the legal profession. Those documents include: Manual for Complex Litigation, Fourth or material found within subject matter guides such as McCarthy on Trademarks. While these documents provide discussion concerning a wide variety of issues, these are not the only documents that should be considered during the planning, execution or evaluation stages of survey research.

Sexual abuse expert witnesses Professor Vanessa Munro of The University of Nottingham and Dr Louise Ellison of the University of Leeds found jurors have a poor understanding of the various ways in which women might react when raped, the levels and types of injuries they might sustain and the different behaviors they might display in the witness box.

The researchers, funded by the Economic and Social Research Council, set up mock court cases to examine how jurors reacted to different pieces of evidence and how these were then discussed in the jury room.

In particular, they found that many jurors expect rape victims to:

Medical expert Mark Gorney, MD, is co-founder and senior consultant for The Doctors Company says that physicians “must accept that behavior and personality play an absolutely critical role in the outcome of malpractice action.” Winning a malpractice lawsuit requires more than proving your treatment was appropriate, prudent, and conformed to the standard of care. “Exit polls consistently reveal that juries are at least as heavily influenced by their feelings about the players as they are by the facts of the case.” Dr. Gorney suggests showing a little humility.

“When you are the target of a malpractice lawsuit, it is not very different than an illness,” Dr. Gorney counsels. “This time you are the patient. Although we all know that doctors make the worst patients, your own personality characteristics may determine whether the verdict comes back for the defense or [includes] several million dollars in punitive damages.”
Excerpted from CortlandtForum.

A. David Tammelleo, JD, a nationally recognized authority on health care law, writes in Caveat To Physicians Having Lasers In Their Offices:

Recently, the development and refinement of the laser has opened a panorama of areas in which laser treatments can be used. However, whenever lasers are used they should only be used by persons skilled in their use and cognizant of harm that can be done if not used properly. As more and more people seek laser treatment for hair removal and other purposes, more and more people are suffering bums, scarring and disfigurement. Ideally, lasers should be used only by those skilled in their use who are cognizant of the damage that lasers can do if they are not used properly. Ideally, they should be used only under the supervision of physicians. Unfortunately, that is not always the case….

In Texas, Emma Alvarez sued Dean Joshua Blount, R.N., and Dr. Tesoro for negligence, claiming that Blount improperly used the MeDioStar HC laser. Dr. Tesoro moved to dismiss Alvarez’s suit on the basis that Alvarez had failed to file a medical expert report and that her claim was subject to the requirements of the civil practice and remedies code.

A first time expert witness asks: how can I extricate myself from a case without getting sued? Here is an answer from attorney Edward Hoffman:

Being an expert witness is tough — especially the first time. I happen to know a very renowned scientist who recently was deposed as an expert for the first time. My scientist friend has the kind of credentials that would floor most people, and he has a real gift for explaining complex concepts clearly. Given that he was being deposed about a question well within his expertise, I would have expected him to handle the depo in stride and I would have expected the attorney deposing him to be a nervous wreck. In fact, it was quite the opposite — simply because the experience was so new to him. My point is that your reaction to the deposition is quite normal and you should not let it affect you too much.

Backing out, if that is what you decide to do, will potentially cost you a great deal. You contracted (either orally or in writing) with this attorney to be his expert at trial, and if you do not cooperate you will be in breach of the contract. You will then be responsible for all the costs foreseeably arising out of your breach, which may be astronomical. For example, if his clients would win a million dollars with your testimony but lose without it, you will potentially be on the hook for a million dollars. Worse yet, they might sue him for malpractice as a result of your breach and he could then sue you to pay not only the damages he is required to pay out but also to reimburse him for his attorney fees defending that lawsuit.

If something unexpected happens to an expert witness what are your rights about postponing the court date? Answer by attorney Michael R. Nack:

Part of the problem is that your change of heart may have come too late to correct. It may be that, if the trial date is coming up soon, it is too late to properly designate another expert to take your place. Some judges will not allow a delay in situations like this, and if your testimony is critical it is possible that your actions will cost his clients their case.

Even if there is still time to replace you and an adequate substitute can be found, replacing you will cost money and you will likely have to reimburse the lawyer for those funds. The new expert may charge more than you, for example, and the other side will expect to be reimbursed for the added costs and attorney fees involved in reading the new expert’s reports and taking his deposition. At the same time, your friend will have to perform additional work and you will be on the hook for his added fees. Even this limited exposure would be considerable in most cases.

If something unexpected happens to an expert witness what are your rights about postponing the court date? Answer by attorney Michael R. Nack:

In any given lawsuit it may become necessary or advisable to seek a postponement. Sometimes, and at some stages of the proceedings this can be achieved through the consent of the parties with the approval of the Judge. In other cases, a formal Motion is required to be filed and argued with the Judge deciding whether to grant the Motion or not. There are occasions when the case simply can not be continued by any method. If the plaintiff is not prepared to proceed to trial, the plaintiff may dismiss the case “without prejudice” which means that the suit may be refiled within one year. Perhaps this is what your attorney was suggesting.

I would certainly make an appointment, sit down and get answers to all of your questions before you consider changing attorneys at this stage of the proceedings. However, if you do come to a decision to change attorneys, you have the right to terminate your employment of your present attorney. You should do so in writing, and you should make arrangements to pick up your complete file from that attorney. Then, you should by all means obtain another attorney to take over. By the way, your first attorney may be legally entitled to some compensation for the time and effort put into your case even if you do decide to change attorneys. Please consult with your attorney before making any changes.

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He’s Declared An Expert, attorney Anthony Colleluori writes on what he calls “the lack of attack on prosecution experts” in criminal trials that involve IME expert witnesses and police personnel. Here he writes on what he looks for in a testimonial expert.

In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.

Remember, to get this witness qualified you are going to need:

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He’s Declared An Expert, attorney Anthony Colleluori writes on what he calls “the lack of attack on prosecution experts” in criminal trials that involve IME expert witnesses and police personnel.

B. What kind of expert do we need? Consultants v. Testimonial experts.

This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct. First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy’s experts. Why not let him testify?

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He’s Declared An Expert, attorney Anthony Colleluori writes on what he calls “the lack of attack on prosecution experts” in criminal trials that involve IME expert witnesses and police personnel.

I. Preparing the attack.

A. Frye or Daubert?