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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.

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Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers includes a chapter by Cook County criminal lawyer Sam Adam entitled Eight Lessons From a Lifetime at 26th Street. Lesson #1:

Look at the trial itself as an entity rather than as a collection of witnesses. Remember that the ultimate purpose of cross-examination is to get those gold nuggets for closing argument. Know every fact about the case – and perhaps especially your opponent’s case – before you plan your cross-examination. This should usually include viewing the scene. A well-prepared lawyer who has a superior knowledge of the facts has an enormous advantage going in.

More to come from Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers

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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.”

The order in which witnesses are called at trial can make or break a case. The process of preparing a witness list, including careful consideration of who to call, when and why, may forecast a verdict even before counsel step into the courtroom for trial.

It is vital to determine which witnesses will provide maximum impact at different points int a trial. Each (expert) witness must be evaluated as a potential “opener,” “closer,” or “sleeper.” Some witnesses can persuasively establish or refute liability on damages issues. Others are better for introduction of documentary or other exhibits. Sometimes witnesses must be called adversely for essential information or taking the edge off problem areas. Above all, calling any witnesses requires strategic thinking, not simply conjuring up an arbitrary list of persons with potential testimony.

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In Your Witness: Lessons On Cross-Examination and Life From Great Chicago Trial Lawyers leading trial lawyers illustrate essential rules including:

*Never ask a question to which you do not know the answer – unless it doesn’t matter, or you have nowhere else to go.

* Always listen to a witness’s answer before asking your next question.

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Wikipedia tells us that “forensic engineering is the investigation of materials, products, structures or components that fail or do not operate/function as intended, causing personal injury for example. In Industry Standards, Technology Associates, the forensic engineering expert witness company has this to say on industry standards.

Because custom and practice is (by definition) something that is actually in existence, and is therefore accepted, there is an understandable tendency to consider it “acceptable.” This conclusion is not automatically justified, however, for two reasons. First, custom and practice within a given industry generally varies over a wide range, from bad to good, from unsafe to safe. For example, although many punch presses are fitted with two-hand controls to prevent the operator from having either hand in the dangerous area as the ram of the press descends, it is common for the operator-or his employer-to “tie down” one of the controls so that the press can be operated with only one hand, leaving the other hand free to inadvertently enter the dangerous area as the ram descends. (The reason for this dangerous practice is that it speeds up production.) Thus, this form of custom and practice is not acceptable as an industry standard. It follows that only good custom and practice should be used as an industry standard.

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In Machine Guarding: The Second Alternative, equipment expert witness Albert Rauck, P.E., CSP, writes on machinery safety devices:

The second alternative can, when used in conjunction with the design consideration, be very effective in eliminating the dangerous condition. Safety devices include the whole range of machine guarding techniques such as fixed or automatic mechanical guards, safety mats, light curtains, safety gates, machine interlocks etc. Care must be taken to assure that machines guards are not removed for maintenance and not reinstalled or the guards are not defeated by workers in an effort to speed up the process.

The third alternative should be employed when the first and second alternatives cannot be used to eliminate the dangerous condition. The provision of warning devices should alert the exposed people to the specific danger and be consistently applied. These devices include signage, warning alarms (horns and lights), warning strips and ropes etc.