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An anonymous developer is trying to bring a negotiated end to the legal dispute that erupted when Belleair, Florida granted code variances to Legg Mason real estate investors for a Biltmore project. The court is looking at whether unfair consideration was given to the developer during the quasi judicial hearing, namely that town officials were predisposed to favor the request and did not allow the complainants equal time to present their objections. During hearings, Mayor Gary Katica said, “I know the issue was about the parking spaces and when their (referring to the complainants) architecture expert witness was asked if he had ever done a parking study, his answer was no.”

Town officials aren’t saying much other than that the town had been approached by someone seeking to resolve the dispute and they were asked not to reveal the identity of the man. The anonymous man is a developer who builds condominiums, lives in Belleair, and is determined to resolve issues that potentially threaten progress on the Belleview Biltmore restoration.

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In Handling Expert Witnesses in California Courts, Robert Aitken writes that step one is to “analyze evidentiary issues to determine whether you need a consultant, an expert, or both.” A consultant is an expert who does not testify in court and is not subject to discovery. For example, the advantage of using a software consultant as opposed to a software expert witness is that their opinions and reports regarding software functionality and software implementations would qualify as attorney work product and are protected from disclosure according to the California Code of Civil Procedure.

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In It’s Just Cough Medicine” – Think Again!, addiction medicine expert witness Shannon C. Miller, M.D., FASAM, FAPA, CMRO, describes the abuse of OTC cough suppressants.

Dextromethorphan or DXM is a semisynthetic narcotic related to opium and found in many over-the-counter cough suppressants in the United States and most countries. DXM is contained in any drug whose name includes “DM” or “Tuss.” The drug comes in various forms. Most common are cough suppressants in caplet or liquid form, including Corcidin, Robitussin, Vicks Formula 44, Drixoral, and several generic brands. (A caution: Not all medicines under these brands contain the drug since most brands put out several formulations. Look on the label for “DM,” “Tuss,” or “Maximum Strength.”)…

DXM is related to opiates in its make-up, and it produces mind-altering highs. Misuse of the drug creates both depressant and mild hallucinogenic effects. It also acts as a dissociative anesthetic, similar to PCP and ketamine.

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In Cross-Examination of Experts On “Underlying Facts or Data,” Carl Robin Teague writes that cases involving complex questions of medical causation often turn on the “battle of the experts.”

Whether the testifying expert witness is a “primary” expert (i.e. published or participated in the study upon which his opinions are rely) or a “secondary” expert (i.e. is relying on a published paper describing a study in which he played no role), requests to produce the raw data underlying published scientific studies typically are countered with several arguments:

1) The published scientific study alone is sufficient, because it has been peer-reviewed.

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In Anatomy of a Witness List, Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward… By the time any expert takes the stand, the foundational facts for his or her opinion should have been presented through other witnesses.”

If the testimony of the prior witnesses shifts and adds to the assumptions on which the expert has based a pretrial opinion, an expert can make adjustments (presuming that these remain consistent with the expert’s ultimate conclusions). A late appearance in the trial also allows the expert to summarize and re-emphasize the favorable information supporting the case.

From Advocate Magazine, June 2008.

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In Cross-Examination of Experts On “Underlying Facts or Data,” Carl Robin Teague writes that products liability cases involving complex questions of medical causation often turn on the “battle of the experts.”

As this battle takes on heightened importance, more and more litigants – citing Daubert’s focus on the expert’s methodology and procedural rules requiring disclosure of the expert’s reliance materials – have successfully sought to review the raw data underlying the opinions proffered by opposing experts. In some cases, the testifying expert relies upon his own published studies and actually possesses the data underlying them. More often, the expert relies upon scientific studies published by others. In these latter cases, the testifying experts likely have no access to the data; the courts must arbiter subpoenas duces tecum and motions to quash involving the production of sensitive data from scientists who have nothing to do with the case.

From Expert Alert, ABA, Summer 2008

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In Anatomy of a Witness List, Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward… By the time any expert takes the stand, the foundational facts for his or her opinion should have been presented through other witnesses.”

There are as host of reasons why most expert witnesses should be presented last in order. They are the cleanup batters for liability and damages issues. Counsel are depending on these well-paid players to hit trial home runs. Experts should be persuasive salespersons who should be able to summarize the salient points of the case for the jury and maybe even add an element of respectability to some claims.

From Advocate Magazine, June 2008.

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Fraud investigation expert witness Brian Johnson testified Tuesday in Ottawa at the trial of four people accused of participating in a credit and debit card fraud scheme. OttawaCitizen.com writes:

Johnson, a fraud investigator with TD Canada Trust, testified that an RBC Royal Bank Visa card seized during a police search of Canadian Barcode and Plastic Card Supply Inc. did not have the same security features that would be found on a legitimate card.

Mr. Johnson was testifying as an expert witness at the trial of Robert Cattral, 38, Catherine Margaret Brunet, 38, Henry Charles Beauchamp, 39, and Ravi Rabbi Shanghavi, 28. The four have pleaded not guilty to a total of 32 criminal charges, including allegations that they were involved in purchasing, possessing and selling devices that they knew or ought to have known were going to be used for credit card forgery or fraud. Crown prosecutors say Mr. Cattral and Ms. Brunet were co-owners of Canadian Barcode, a Bank Street company that was a front for the alleged criminal organization.

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In Tips For Selecting The Right Expert Witness Service (Skynewswire.com), Rosie Fletcher writes that there is always a possibility that attorneys will need the services of an expert witness. Hiring the right medical expert witness, for example, will provide proof and testimony in court to support your case.

Even if you don’t need to hire the right expert witness service now, you could need one later so its better to be prepared in advance. The expect witness service you’ll avail of must meet the following criteria:

5. Training and Workshops Attended

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TimesOnline.com UK edition reports:

The surge in credit-crunch related litigation means that expert witnesses are in increasingly short supply, according to Sweet & Maxwell, the legal information publisher. A survey found that 28 per cent of law firms say that they are finding it “extremely difficult” or “difficult” to find the right expert witness for their case. Even before the credit crunch, figures from City law firm Reynolds Porter Chamberlain showed that litigation was on the up – with the number of High Court commercial disputes jumping 25 per cent in 2006 (latest figures available) to nearly 62,000 after years of decline. The sudden surge in litigation has meant that some experts have started to run out of capacity to take on more work, Sweet & Maxwell says.

One forensic accountant said his team had “almost more work than we can handle” and other expert said that with the “massive surge” in banking litigation, expert witness work was taking up “almost all my time”. Things could get even worse. Professor Alan Riley, of The City Law School, predicts international litigation is set to boom. “As the credit crunch bites, all the chickens will come home to roost. Flawed business models that may look fine in climbing markets are exposed in harsher economic times and as a result, all sides head to the courts or arbitrators.”