Articles Posted in Trial Strategy

In Mediating Reinsurance Disputes, insurance expert witness Peter A Scarpato writes:

For certain reinsurance disputes in the US, mediation is an available, effective but often misunderstood and underused process for companies seeking an efficient, cost-effective alternative to arbitration or litigation.

As the aggravation, expense and time required to arbitrate or litigate escalate, parties are beginning to opt either by contract or ad hoc agreement to mediate reinsurance disputes. For them, depending upon the case, LESS IS MORE; that is, compared to arbitration or litigation, mediation is a less aggressive, less costly, less damaging and less divisive alternative to tip the balance of POWER AND OPPORTUNITY in the parties’ favor. A careful, experienced and patient mediator views disputes between parties, not as a battle, but as an OPPORTUNITY to give them the POWER to structure a resolution that best meets their respective short and long term needs.

In More effective use of experts in slip-and-fall cases –

The right expert will help you to better prepare the case and win it at trial, attorney David Reinard writes:

Why to retain an expert

In More effective use of experts in slip-and-fall cases –

The right expert will help you to better prepare the case and win it at trial, attorney David Reinard writes:

We all know slip-and-fall cases are among the most difficult to win. We also know that many people get seriously injured in falls, so we often are called to consider these cases and we are often tempted to take them. Some lawyers wisely use a “no breaky, no takey” rule to determine whether to even consider accepting a slip-and-fall (or trip-and-fall) case. And unless the case has catastrophic injuries,

In Product Experience or Expert Experience?, patents expert witness James G. Rice writes:

Because patent litigation is one of the more complex areas of litigation, the expert witness is susceptible to making a critical mistake, for example, during a deposition. From my own experience, it appears that patent litigation is the foremost area of litigation in which technical issues can be strongly interwoven with legal issues. This can lead to the situation during a deposition where what may appear on the surface to be a relatively straight forward technical question can have critical underlying legal implications. I recall being asked during a deposition if a particular element of a claim was a “method.” The wording of the claim was not entirely clear on this issue and a less experienced witness might have simply answered “yes” and thus inadvertently have testified in effect that the claim was invalid. Although the attorney the expert is working with during preparation for the deposition may be excellent, it is difficult, if not almost impossible, to anticipate all of the avenues the opposing attorney may take during the course of a deposition. This makes it all the more important that the expert have strong experience in patent litigation.

In OSHA Regulations and their Complexity construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Get it in writing

When trying to decide how to apply a rule, ask for it in writing to make sure it supports the corresponding standard or official position of the agency, and utilize the document as demonstrative evidence. When it comes to regulations, their ambiguity can be the expert’s worst enemy in the issue of “to a reasonable degree of certainty.” Don’t be afraid to ask for the answers in writing from OSHA or other governing agencies.

In OSHA Regulations and their Complexity construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Pick up the phone

Instead of beating your head against the wall endlessly searching OSHA or other agency websites, just pick up the phone and call them. You can even do so anonymously. This is one of the most expedient ways to make sure you get the right answers to your specific question. Too often people send off a sterile email that does not get a timely reply or the reply only provides you with more questions. To get the answers you need in a timely fashion, pick up the phone and talk to a real person; get a sense of their point of view, knowledge and conviction.

In Tips for Using an Expert Witness Effectively, security expert witness Eric Coles writes:

In our culture we are urged to “trust the expert” – even in a court of law. The simple fact that the testimony of an expert witness is admissible in a trial shows how much we value the opinions of people who are considered authorities in their fields. This can have a very persuasive effect on a case, as long as the experts are carefully chosen and thoroughly prepared. Here are some tips for using an expert witness successfully. http://drericcole.blogspot.com/

In OSHA Regulations and their Complexity construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

Staying competent with OSHA, EPA or other agency regulations can be difficult and sometimes exasperating. This can be particularly challenging when the people charged with their enforcement are sometimes a little fuzzy about their interpretation and application. Still, organizations and contractors are held responsible for understanding the rules and regulations under which they operate. So the complexity of agency regulations and the obscure manner in which they are sometimes published and enforced must also be clearly understood by experts.

Find the right path Having more than one person, such as a research assistant, look for answers or even figure out exactly what questions to ask can be a big help. I will often have two or three of my research assistants look into a tough question or the applicability of an ambiguous rule or regulation. We sometimes can’t see the forest for the trees. Also, don’t be afraid to reach out to industry colleagues to tap into their information and experience. This just may lead you down a path you had not previously considered.

In Insurance Industry Expert Testimony: Is It a Legal Conclusion or Custom and Practice?, Anthony J. Zarillo, Jr. writes:

As a general matter, whether expert witness testimony is admissible has been subject to challenge on a wide variety of issues throughout federal and state courts. The issues triggered by decisions such as Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Inc., and Kumho Tire Co., v. Carmichael, have particular application and importance as well to questions regarding testimony provided by experts in the insurance industry….

Anthony J. Zarillo, Jr. is a founding shareholder of the law firm of Bevan, Mosca, Giuditta & Zarillo, P.C., which represents the insurance industry.

In The Case for Forensic Polygraph Testing in Post-Adjudication Sexual Offender Examination and Management, polygraph expert witness Ken Blackstone writes:

Proposed Solution

Forensic polygraph examination has safeguards which keep its error-rate below 10 per cent. This type of polygraph testing is frequently used in the legal, intelligence and investigative communities. As an example, the popularity of the polygraph in the Federal agencies arena is encouraged by the high caliber of training and supervision provided its examiners. Similar standards and training need to be developed and deployed in the area of post-adjudication assessment and management of sexual offenders.