Expert Witness Blog

In PRESERVE THE PHYSICAL EVIDENCE!, electrical expert witness Roger L. Boyell, writes:

As soon as you believe a legal action might be initiated, take pains to preserve whatever physical evidence may be relevant. Send in an investigator, take many photographs, expedite the discovery process. Alteration or disguise of potential physical evidence need not be on purpose. Damage gets repaired, defects are corrected during routine maintenance, new features and devices are incorporated in machinery, apparatus undergoes corrosion and decay. Copies are not always exact replicas. Computer records can be overwritten with no intent of spoliation.

The lesson is to promptly identify and preserve whatever evidence might later become useful for presentation in the forum: equipment, photographs, test results, written records, videotapes, lab samples. Physical evidence never improves its usefulness to litigation with the passage of time.

Federal motor carrier safety regulations expert witnesses may opine on the trucking industry,trucking and transportation rules and regulations, truck maintenance, and related topics. In Fatigue Study Provides Basis for 34-Hour Restart Proposal Oliver B. Patton writes for truckinginfo.com:

The 34-hour restart gives daytime drivers a chance to catch up on their rest, but it does not work as well for night drivers. In fact, it may even be detrimental to driver performance.

That’s the conclusion of a study the Federal Motor Carrier Safety Administration is using to justify its proposal that the restart include two periods of rest between midnight and 6 a.m. The proposal is a point of strong contention between the agency and the industry, which is arguing that the two-night requirement will force night drivers to take as much as 53 hours off, possibly away from home, and begin their shifts during morning rush hour when exposure to accident risk is higher.

Liability policies expert witnesses may testify regarding insurance loss claims, insurance policy coverage, liability policies, and related topics. In The Insurer’s Duty to Defend: A Quick Analysis, attorney Thomas H. Veitch, partner with the law firm of Langley & Banack, Inc. in San Antonio, writes:

A duty to indemnify is based on whether the alleged facts are actually established; for example, a ruling of the court or the findings of the jury.

If an insurer owes a duty to defend any portion of the suit, the insurer is obligated to defend the entire suit.

Insurance expert witnesses may opine on insurance loss claims, insurance policy coverage, automobile insurance rates, and related topics. Here, Insurance.com writes on on 2011 car insurance trends including:

Mileage-based insurance

Companies will continue to offer discounts and incentives in 2011 – such as a premium refunds or diminishing deductibles to existing consumers who remain claim-free, says Ryan Hanley, an insurance broker with the Guilderland Agency in Albany, N.Y. “Pay as you drive” insurance policies are among the discount plans most likely to grow in popularity next year. These policies offer drivers a premium based primarily on the number of miles they drive each year. This can lead to big savings for people who drive relatively few miles.

In PRESERVE THE PHYSICAL EVIDENCE!, electrical wiring expert witness Roger L. Boyell, writes:

As soon as you believe a legal action might be initiated, take pains to preserve whatever physical evidence may be relevant. Send in an investigator, take many photographs, expedite the discovery process.

Any delay allows potential evidence to be altered or disguised, as in the following real-world examples.

Pesticide expert witnesses may write reports and testify on pesticide contamination, insecticides, and pesticide products. The EPA regulates the use of pesticides under the authority of two federal statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA).

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) provides the basis for regulation, sale, distribution and use of pesticides in the U.S. FIFRA authorizes EPA to review and register pesticides for specified uses. EPA also has the authority to suspend or cancel the registration of a pesticide if subsequent information shows that continued use would pose unreasonable risks. Some key elements of FIFRA include:

* is a product licensing statute; pesticide products must obtain an EPA registration before manufacture, transport, and sale * registration based on a risk/benefit standard * strong authority to require data–authority to issue Data Call-ins * ability to regulate pesticide use through labeling, packaging, composition, and disposal * emergency exemption authority–permits approval of unregistered uses of registered products on a time limited basis * ability to suspend or cancel a product’s registration: appeals process, adjudicatory functions, etc.

In Preparing and Presenting Expert Testimony, traffic engineer and accident reconstruction expert witness Lawrence Levine writes:

All too often an expert walks into court and it is discovered through questioning that he or she only saw the site the day before trial; that he or she only saw photographs provided by the attorney and did not see several others; or that he or she did not bring their notes to court. To a jury or a judge who is trying to determine the merits of a case as well as the reliability and truthfulness of the witness before them, any one of these questions can totally undermine the expert’s credibility. Once credibility is lost, generally the tryer of fact and jury members discounts the witness.

Gathering of Information The investigating traffic engineer must determine exactly which aspects of the case are within his realm of responsibility if he is to be a fact witness. Fact witnesses generally are not asked for opinions. For the traffic engineer who will appear as an expert witness, opinions will be required. Therefore, it is expected that they will have familiarized themselves with the following:

Insurance claims expert witnesses may opine on insurance policy interpretation, insurance fraud, and related topics. In 8 Great Ways to Get Busted for Auto Insurance Fraud, Insurance.com writes:

Insurance fraud is becoming more frequent as people look for “creative” ways to make money in the struggling economy. Insurance companies find that people file more claims in a down economy, often for smaller amounts. And, fraud is an increasing problem. With so many claims for car insurance companies to process, it may seem like a fraudulent claim can slip through unnoticed. Not so.

Just like the team on CSI uses advanced techniques to analyze evidence and figure out what happened, an insurance company’s Special Investigations Unit or SIU-which often includes reps with law enforcement experience-conducts a thorough investigation to detect fraud. (Please note that Insurance.com reminds consumers that insurance fraud is illegal and a very bad idea.) Here are a few things fraudsters try to get away with-and why it’s rare that they will:

Affidavit of service expert witnesses may opine regarding the process server’s work product. The National Association of Professional Process Servers has established the Standards, Best Practices and The Policy Manual for professional process servers which includes this information:

Jurat A jurat is a certificate by the person before whom a writing was sworn and is designed to compel truthfulness on the part of the signer. The jurat is completed during the execution of an affidavit and is generally written at the foot of an affidavit stating when, where, and before whom such affidavit was sworn. Before executing a jurat, a Notary Public must be satisfied as to the identity of the signor, and the voluntary nature of that person’s signature. The signing of the affidavit, and the execution of the jurat, is required by all states to be done at the same time in the physical presence of each other.

The jurat initiates a legal process that could eventually result in criminal conviction and punishment if the signor is later found to have lied.