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Do you need to hire a forensic science expert witness? The University of Alabama describes what these professionals do:

Most forensic scientists work in a lab doing “traditional” forensic science (DNA, drugs, trace, etc.). Analyzing evidence in the lab requires an undergraduate degree in chemistry, biology, or a related natural science field (like biochemistry, pre-med, microbiology, etc.). The job of a forensic analyst is for the most part limited to lab work (and testifying in court). It is rare that a forensic scientist will be required to visit crime scenes. In some forensic labs, the analysts may assist sheriff’s departments at the crime scene in rural areas, while crime scenes in the city are handled by the city police.

This leads us to the other side of forensic science, the crime scene work. Most often, crime scenes will be processed by licensed police officers trained to be a part of the department’s crime scene unit. Although crime scene technicians will be responsible for the collection of evidence and processing crime scenes, they will not have much to do with the investigation or the analysis of the evidence. Unfortunately, the common portrayal of crime scene investigators (such as the characters on CSI) is a lousy portrayal of the profession since those characters have their hands in all aspects of the investigation and in reality a person will only work in one area (lab vs. crime scene vs. investigation). The fact is, most of the investigation (interviewing suspects and witnesses) is completed by licensed police officers.

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

The duty to investigate is an important duty of an insurer. Hence, it can be an important part of a bad faith case. The erroneous withholding of policy benefits based on the insurer’s failure to investigate a claim may constitute a breach of the implied covenant of good faith and fair dealing. In order to protect the insured’s peace of mind and security, “an insurer cannot reasonably and in good faith deny payments to its insured without thoroughly investigating the foundation for its denial.” An insurer must “fully inquire into possible bases that might support the insured’s claim.” The investigation must be prompt, thorough, reasonable, and conducted in good faith. That is to say, the insurer must consider facts favorable to the insured’s position as well as those that favor the insurer. This is one aspect of the insurer’s duty to give equal consideration to both the insurer’s and the insured’s interests.

California has codified the duty to investigate in the Unfair Practices Statute (“UPA”) which requires the insurer “to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.” Even though no private right of action may exist under these statutes, the application of the duty to investigate remains important. The UPA confirms the industry standards. Alternatively, other standards may be adopted by the company as fair standards for processing a claim. A violation of the statutory, industry, or self-imposed standards provides support for a bad faith claim. They can serve as standards for determining the bad faith conduct of the insurer.

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In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:

Often just the threat of a survey or the designation of a survey expert can motivate a plaintiff to rethink their strategy. A shoe manufacturer sued a boutique shoe store alleging that their distinctive product design was being infringed. Rather than giving up and rolling over, the alleged infringer retained a survey expert and indicated their intention to fight. This caused the plaintiff to take another look at the cost of proceeding and possible damages should they win. Their reevaluation of the case made continued litigation look like a poor business decision and the matter was dropped.

Surveys can be a powerful weapon in helping each side in a dispute see the real value of their position. And when the parties see both the truth and the beauty of their cases, settlement can occur. Because good data drives out bad cases.

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In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on when the expert’s facts are wrong:

An expert’s opinion is unreliable if his or her facts are wrong. As the Supreme Court explained, if “the foundational data underlying the opinion is unreliable, … any opinion drawn from that data is likewise unreliable.” Havner, 953 S.W.2d at 714. One variant of this argument is when the expert makes unwarranted assumptions. For example, the Seventh Circuit affirmed the exclusion of a “lost profits” expert on the basis that his assumptions about market penetration were “optimistic.” Target Market Pub., Inc. v. ADVO, Inc., 136 F.3d 1139, 1144 (7th Cir. 1998). Target Market is significant because the expert’s assumptions were similar to the defendant’s own projections of potential profits in its marketing plans. Id. The Seventh Circuit held that experts still needed to prove the assumptions behind such projections. See Id. at 1145 (“The [marketing] plan sought to demonstrate what Select Auto’s profits might be given certain assumptions that had not yet, and might never, come to pass.”).

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Advertising expert witness Paul Wright, is a principal of SignValue. This SignValue survey includes bad news for print media:

1) Contrary to previously published survey results, 24.7% of all respondents here indicated that their 2009 media expenditures will remain flat to potentially increase approximately 10% over 2008.

2) As a result of economic slowdown, 40% of respondents shifted dollars into e-mail marketing from print.

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In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:

Sometimes even the results of a survey pre-test can be valuable. Pre-testing or pilot testing a survey is a standard research practice that often improves the survey by eliminating confusing wording or awkward question sequences. In addition, pre-testing can provide a rough indication of the likely results of a full-scale study. While the information that comes from pre-testing is not as precise as the results of a full-scale survey, the data can have an important impact on the strategy of the parties.

• In a case alleging trade dress infringement, the parties were attempting to negotiate a settlement while a pre-test of a survey was being conducted on behalf of the plaintiff. When the plaintiff’s representative in the negotiation introduced that very day’s pre-test results into the discussion, the defendant accepted the settlement offered.

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In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The Admissibility of Expert Testimony in Texas after Daubert and Robinson. Rule 702 governs the admissibility of expert testimony in Texas: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. TEX. R. EVID. 702. 1. The Robinson Opinion Created the Framework for Applying Rule 702. Robinson’s core holding is that Rule 702 requires the trial court to serve as a “gatekeeper” to ensure that (1) the expert is qualified and that the expert testimony is both (2) relevant and (3) reliable. Robinson, 923 S.W.2d at 553-54 & 556; see also Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc) (holding that, in evaluating expert testimony in criminal cases, “the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.”). According to Robinson, the relevancy requirement is critical because of the prejudicial effect that expert testimony has on the jury: “a jury more readily accepts the opinion of an expert witness as true simply because of his or her designation as an expert.” Robinson, 923 S.W.2d at 553 (citations omitted). As to reliability, Robinson announced a “nonexclusive” six-factor test to evaluate expert testimony:

(1) the extent to which the theory has been or can be tested;

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

Thus, a bad faith claim has these three very separate and distinct components: A breach of contract is not bad faith – there must be an examination of the conduct of the company to determine if the manner of handling the claim was consistent with “good faith” principles. However, proof of bad faith is not enough to impose punitive damages – “something more” is required, which has been expressed as an “evilness” in the corporate scheme of things, or the “collective corporate conduct.”

The different standards and burdens applied must be evaluated. If not, they offer the defense an excellent opportunity to “compartmentalize” the case and defeat the plaintiff’s effort to obtain relief for the wrongs done in an amount sufficient to accomplish the goal of giving notice that such conduct should be stopped.

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