Expert Witness Blog

In Four things an attorney should know about retaining an expert witness, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

The decision to retain an expert witness is an important factor in any litigation. Strategic selection and communication with the expert can have a substantial impact on the case, from settlement options to court room testimony. The opposite is also true — the wrong choice of an expert witness can result in poor or negative results. I have compiled four recommendations for attorneys from an expert witness perspective.

4. Do Not Withhold Information What your expert witness does not know can and likely will hurt your case. Just as an accomplished attorney does not ask a question for which he or she does not already know the answer, withholding from the expert facts or materials that you think are not relevant is a recipe for disaster. In deposition or at trial your expert is likely to be surprised or embarrassed and could possibly lose all credibility with the judge and/or jury and his or her opinions and conclusions be regarded as insignificant.

Video expert witnesses may write reports and testify on video capture, video conferencing, video security systems, and more. Need to learn more about video for your case? See the Digital Video Professionals Association. FAQs may be found here: http://www.dvpa.com/public/department55.cfm

In Driver Fatigue is the Number One Safety Issue in the Truck and Bus Industry, fatigue limit expert witness Dennis Wylie writes:

The causes of driver fatigue, fatigue-induced cognitive impairment, driver drowsiness, and the subjective experience of fatigue include:

excessive hours of work inadequate hours of sleep night time driving irregular work-rest schedules

In Forensic Human Factors Analysis for Fatigue Accident Reconstruction, fatigue expert witness Dennis Wylie writes:

There is no breath analyzer or blood test that can reveal the presence of a critical level of fatigue in an accident-involved driver. However, a forensic driver fatigue expert can often conclude to a reasonable degree of scientific certainty whether fatigue was a cause of the accident, by doing a human factors accident reconstruction involving two important steps:

1. a forensic human factors analysis of the driver’s work-rest history leading up to the accident, and 2. a forensic human factors analysis of each particular aspect of the driver’s performance that may have been a cause of the accident.

Annuities sales methods expert witnesses may opine on tax deferred annuities, equity indexed annuities, and more. In VARIABLE ANNUITIES: A PRIMER FOR CLAIMANTS’ COUNSEL, John Duval Associates writes on annuities sales practices:

The most eyebrow-raising feature to appear lately is the “living” performance guarantee or “guaranteed minimum income benefit.” Different carriers have different names for it, but the feature generally is described as providing a 6% per year minimum performance guarantee, regardless of actual performance. Customers are told they will receive that 6%, even if the account loses money, but can receive the actual value if that proves to be higher than the 6% guarantee. Talk about seductive–-this guarantee seems like a no-lose proposition. Unfortunately, not every broker makes clear that the feature requires the contract to be kept in force for a long time, usually 10 years, before it can be utilized. Furthermore, the client must annuitize the contract in order to get the guarantee. In other words, the customer must irrevocably transfer the principal to the carrier in exchange for payments (factored at a very low interest rate) during a selected optional period such as life or 10 years certain. Of course, if the client dies before the value of the funds has been paid out, the insurance carrier wins the mathematics game. And this feature adds an extra cost above the regular M&E fees, putting the total contract fees at around 3%, a staggering expense.

Read more: John Duval Associates.

Enterprise risk management expert witnesses may write reports and testify on enterprise risk management, financial risk management, and disaster risk management, as well as related issues. In Risk Management – 8 steps To Avoid Litigation, Mridu Bhattacharya, Jr. Project Manager in Online Promotions at SynapseIndia, writes that “Accidents, mistakes and misunderstandings can happen in any business. Some are settled amicably, others grow into full-blown disputes, and before you know it you could be facing a legal claim.”

Eight steps to safeguard your business #3 Checking work.

Freelancers are not required to be perfect. However, this does not relieve them from the obligation to check their work because this is one of the standard systems used to discover and correct errors. Errors, per se, are not evidence of malpractice, but failure to check the work product is.

Risk management expert witnesses may write reports and testify on enterprise risk management, financial risk management, and disaster risk management, as well as related issues. In Risk Management – 8 steps To Avoid Litigation, Mridu Bhattacharya, Jr. Project Manager in Online Promotions at SynapseIndia, writes that “Accidents, mistakes and misunderstandings can happen in any business. Some are settled amicably, others grow into full-blown disputes, and before you know it you could be facing a legal claim.”

Being sued is stressful, time-consuming and expensive. Even if you win the case the disruption to your business can outweigh any financial gains. A key objective for most businesses is to avoid being drawn into litigation in the first place and here we outline the steps freelancers can take to safeguard their business against litigation.

Eight steps to safeguard your business

Variable annuities expert witnesses may testify on retirement annuities, wraparound annuities, variable annuities, and more. In VARIABLE ANNUITIES: A PRIMER FOR CLAIMANTS’ COUNSEL, John Duval Associates writes on annuities sales practices:

Variable annuities are a notorious vehicle for abusive sales practices. The reason many brokers are prone to commit these abuses is that the combined commissions from the sale of a typical variable annuity are higher than commissions from almost any other product. Not only does the broker get a sales commission, but the broker-dealer also gets sales credits or “trailers” which in turn are partially passed on to the registered representative on a quarterly basis. These additional payments consist of a percentage of the asset base, usually .25% or higher. But since there is no front-load to variable annuities–100% of the principal goes into the contract–one might wonder where the insurer gets the money from which to pay these higher commissions. The answer is that the insurance carrier “fronts” the commission to the broker-dealer and recoups this money through the death benefit charge, known as the “mortality and expense risk” or “M&E.”

In order to ensure that the M&E will be in place long enough to compensate the insurer for the fronted commission expense, the insurer includes a contract feature called a Contingent Deferred Sales Charge or “CDSC.” (It is also known as an Early Surrender Charge). If, for carrier six or seven years to recover the commission and turn a profit. Thus, most variable annuities carry a longer surrender period. The owner must pay a penalty for premature withdrawals or surrendering the contract during this period. The penalty decreases each year until it disappears completely in the pre-specified year of ownership. Recently, variable annuities without surrender charges have begun to emerge, but most contracts still contain some form of penalty to impede immediate and unfettered liquidity

Cybersquatting expert witnesses may opine on domain squatting, domain names, and cyberpiracy. Here, Las Vegas Trademark attorney Ryan Gile writes that in Zuffa, LLC v. theultimatefighter.com, UFC filed an In Rem Cybersquatting Action against the UltimateFighter.com.

Las Vegas-based Zuffa LLC (“Zuffa”), the company which owns the marks THE ULTIMATE FIGHTING CHAMPIONSHIP and UFC in connection with mixed-martial arts competitions, filed an in rem lawsuit in the U.S. District Court for District of Nevada against the domain name theultimatefighter.com.

Of course, the date when the mark became distinctive is relevant because it is only cybersquatting if the domain name was confusingly similar to a mark that was distinctive on the date of registration. The domain name in dispute was purportedly registered by Anton Resnick with the registrar eNom on January 22, 2004 (long before Zuffa’s aforementioned trademark applications). The domain name http://www.theultimatefighter.com/ currently is redirected to a Yahoo page dedicated to mixed martial arts.

Annuities expert witnesses may testify on variable annuities, retirement annuities, wraparound annuities, and more. the National Association of Fixed Annuities includes this press release on their website:

NAFA Comments on Passage of Financial Reform Bill by Senate Milwaukee, WI (July 15, 2010) – Today’s passage of the Financial Regulations Bill by the U.S. Senate tops off the historic week for the fixed annuities industry that was kicked off on Monday, July 12, when the U.S. Appeals Court required that the Securities and Exchange Commission’s Rule 151A be vacated. While the court’s ruling was good news the decision to vacate the Rule 151A does not preclude the SEC from re-proposing the Rule. The passing of the Financial Regulations Bill by the Senate will prevent the SEC from asserting jurisdiction over Fixed Indexed Annuities when the Harkin Amendment conditions are satisfied.

We are very pleased with these developments,” said Kim O’Brien, executive director of NAFA, “Fixed Indexed Annuities are insurance products that should be subject only to the oversight and regulation provided by state insurance departments. Fixed annuities play a vital role in helping consumers provide for their own financial well being in retirement. All stakeholders touched by fixed annuities – government, regulators, the industry, and consumers – share a common objective to protect consumers. This, along with a strict adherence to state regulations and our own code of ethics, should always be our primary focus as the association and its members continue to provide products and service to assist our customers with their retirement needs.”