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On August 15, attorneys for the Detroit City Council submitted a witness list to Governor Jennifer Granholm for the removal proceedings against Detroit Mayor Kwame Kilpatrick. A supplemental witness list includes Wayne State Law School professor Peter Hammer who will serve as a contracts expert witness. WXYZ.com reports:

Most of the names on the list are attorneys who have been in the media since the text message scandal broke in January. Also on the list is attorney Valdemar Washington, who was the facilitator over the settlement agreement between the city and the Detroit police officers who sued because they say they were fired for working on investigations that may have revealed the alleged affair between Kilpatrick and his former chief of staff Christine Beatty…

The Council has asked Granholm to remove Kilpatrick from office for allegedly using public funds to secretly settle the officers’ lawsuit. The case settled for $8.4 million.

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The Texas Forensic Science Commission is investigating negligence and misconduct complaints against forensic labs and has agreed to look into allegations that Cameron Willingham was convicted and sentenced to die on fire officials’ faulty testimony. Willingham was executed four years ago for the 1991 murder of his 1-year-old twins and 2-year-old stepdaughter in a house fire.

A five-member panel of national fire experts, who conducted the analysis, found much of the trials’ expert testimony relied on outdated, invalid investigative criteria and called for improved training of fire investigators and prosecutors who handle such cases. Chron.com also reports:

“These two cases in Texas are just the tip of the iceberg,” Innocence Project co-director Barry Scheck said in an e-mail statement. “Across Texas and around the country, people are convicted of arson based on junk science that has been completely discredited for years.”

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Michael Stephen Gorbey, 38, was sentenced Friday to 22 years in prison in the Superior Court of the District of Columbia following his conviction on multiple weapons charges, including possession of explosives and the attempted manufacture or possession of a weapon of mass destruction near the U.S. Capitol in January 2008. The weapons expert witness who examined the homemade bomb in Gorbey’s car found what appeared to be a small hole in the can that could have been used to hold a fuse for the bomb. The expert witness testified that if detonated, the device could have caused death or serious bodily injury to multiple people.

Marketwatch.com reports:

This case marks the first time that the U.S. Attorney’s Office for the District of Columbia charged a person with attempting to manufacture or possess a weapon of mass destruction based upon the local District of Columbia statute that was passed in response to the terrorist attacks of Sept. 11, 2001.

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This week a jury found that a forklift manufacturer was not liable for a 1999 tip-over accident in which the operator was thrown from a forklift resulting in catastrophic injuries. The injured party lived seven years as a quadriplegic. Massachusetts U.S. District Court Judge Reginald C. Lindsay presided over the five-week trial in which the jury returned its unanimous verdict. The forklift manufacturer’s engineering expert witness successfully argued that the accident was caused by operator error, not a breach of warranty or any defect present in the forklift.

The defendant faced great exposure because the parties stipulated to more than $2 million in economic damages. The plaintiff also sought damages for pain and suffering, punitive damages under the Massachusetts Wrongful Death Statute and multiple damages under G.L.c. 93A.

For more see Massachusetts Lawyers Weekly.

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In Strategic Security Management: A Risk Assessment Guide for Decision Makers, author and security expert witness Karim H. Vellani provides a “definitive text on security best practices, introduces the concept of analysis for security decision making, and discusses advanced threat, vulnerability, and risk assessment techniques that you can apply to your organization’s security program.” The first two chapters include:

Chapter 1, Data Driven Security, sets the tone for the rest of the book with its discussion of a relatively new security concept, using data to drive the security program. Security professionals, only recently, have started using quantitative data to determine appropriate security levels. This chapter provides some of that food for thought mentioned above as well as a “howto” for developing security metrics.

Chapter 2, Asset Identification and Security Inventory, discusses the first two steps of the risk assessment process, the identification and categorization of organizational assets and the itemization of existing security measures. Critical assets, those that are integral to the organization’s mission, are the focal point of the first half of this chapter, while three types of security measures are discussed in the latter half. Also included in this chapter is a list of definitions so we’re all speaking the same language as we progress through the book.

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In Post Loss Underwriting is an Oxymoron, attorney and insurance expert witness Barry Zalma, Esq., CFE, discusses “post loss underwriting.” His firm’s practice emphasizes the representation of insurers and those in the business of insurance.

In California there is much publicity for what the plaintiffs’ bar calls “post loss underwriting” as a pejorative way of speaking of the equitable remedy of rescission. Post loss underwriting does not exist. Underwriting is a decision making process. It is made before insurance is issued. Rescission is an equitable remedy when an insurer is deceived regarding a material fact. If the rescission is improper the insured is not without a remedy.

As the Court of Appeal stated in Imperial Casualty & Indemnity Company v. Levon Sogomonian, 198 Cal. App. 3d 169 (1988), “Our conclusion here should not result in an assumption by insurers that policy liability can, with impunity, be avoided or delayed by assertion of a claim for rescission. That is a tactic which is fraught with peril. Where no valid ground for rescission exists, the threat or attempt to seek such relief may itself constitute (1) a breach of the covenant of good faith and fair dealing which is implied in the policy (citations omitted) and/or (2) the commission of one or more of the unfair claims settlement practices proscribed by Insurance Code section 790.03, subdivision (h).”

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Properly preparing the medical expert witness is vital to a successful deposition. The expert witness will then be able to perform with little assistance from the attorney in the case. This preparation is particularly important when the deposition is recorded on video. Since a common use for video depositions by opponents is impeachment at trial, counsel should treat the video deposition as if it were taking place in the courtroom.

When the expert’s deposition comes up at trial and objections are made as to the competency of the deponent, counsel does not have the right to instruct the expert witness not to answer questions but may advise the expert not to when appropriate.

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In Mediation as a Discovery Tool, insurance expert witness Guy O. Kornblum describes the benefits of going to mediation:

So the case does not settle at mediation! Disappointment perhaps, but there are other benefits to going to a mediation. One of them is the exchange of information that takes place between or among the parties. This is particularly true of a mediation that takes place early in the case, or at a certain point in time after the parties have exchanged limited information. Even though a mediation takes place, it is sometimes the case that the parties simply do not know enough about the other side’s position or the facts of the case; therefore, productive negotiations just don’t happen. Or, it may be that the perception of the parties is just quite different and more information needs to be exchanged before settlement can be reached.

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In Strategic Security Management: A Risk Assessment Guide for Decision Makers, security expert witness Karim H. Vellani writes in his introduction:

While researching this book, I sought out the wisdom of others and came across a quote by William O. Douglas which I think captures the essence of Strategic Security Management: “Security can only be achieved through constant change, through discarding old ideas that have outlived their usefulness and adapting others to current facts.” I think that pretty well sums up the intent of this book.

Vellani is President of Threat Analysis Group, LLC.

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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.”

While most cases are resolved short of a trial, it is important to view each as a potential trial situation. This starts early in the life of a case. Even at an initial client interview, witnesses are named, areas of factual and legal inquiry are outlined, and the necessity of retaining expert (witnesses) may be considered. Pretrial discovery broadens the scope of witness identification and eventually allows refinement of a trial witness list. This is a time-consuming and hugely expensive process. Failure to focus early on the truly important witnesses to call, and what each may contribute to winning, can be fatal to ultimate success.

From Advocate Magazine, June 2008.