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Oracle says it may file an amended complaint alleging what its attorneys are calling “a broader program of copyright infringement” by SAP (Systems Applications and Products in Data Processing) beyond the allegations it has already made against SAPs subsidiary TomorrowNow. Oracle discovered some TomorrowNow employees were downloading Oracle customer files and claims SAP violated the Federal Computer Fraud and Abuse Act as well as the California Computer Data Access and Fraud Act. Both sides are limited to three software expert witnesses in the case. The internetnews.com also reports:

SAP acknowledged that some TomorrowNow employees were guilty of some “inappropriate” downloads but dismissed the vast majority of Oracle’s allegations. In November, SAP announced that TomorrowNow CEO Andrew Nelson and other senior executives had resigned and that it was considering a number of strategic options, including the possible sale of services subsidiary.

Ahead of next week’s case management hearing, Judge Jenkins gave both sides a limit of 20 depositions, 150 document requests, three expert witnesses to evaluate forensic evidence and determine potential damages and an August 8 deadline to submit its expert disclosure reports. He also said the last day he will hear pre-trial motions will be November 13.

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In How to Use Experts to Prove the Plaintiff’s Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations Demsey states that “Too often the initial consideration is not well thought-out.” Finding the right medical malpractice expert witness involves optimizing lines of communication.

Make sure you go over in detail the theories of your case about which your expert will testify. Success often relies upon you laying out precise legal language for your case so that your expert can phrase his or her testimony accordingly.

Make sure that your expert does not go beyond the realm of his or her area of expertise. This means that you may need multiple experts to deal with a particular issue. It is better to have two creditable experts whose testimony may somewhat overlap, than to have one expert who is so stretching the limit so his or her expertise that even in the areas in which he or she is comfortable are suspect and not believable.

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In How to Use Experts to Prove the Plaintiff’s Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations such as products liability cases Demsey states that “Too often the initial consideration is not well thought-out.” Finding the right products liability expert witness involves asking for recommendations from other attorneys and making sure you can afford the expert.

Not only must the expert be available for consultation and advice during the discovery part of your csae, but you should not feel that you cannot afford to seek this consultation when it is necessary. This does not mean you are constantly running to the individual for consultation on trivial matters, but you must be able to contact this person whenever the need truly arises.

Sometimes an expert will not be able to testify for you, but that same expert can lead you to others who would be able to testify in your case. Furthermore, an expert can be used as a consultant, and this alone is often worth the time, effort and expense of consulting an expert.

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In How to Use Experts to Prove the Plaintiff’s Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations such as medical malpractice cases Demsey states that “Too often the initial consideration is not well thought-out.” Finding the right medical malpractice expert witness begins with meeting the expert.

This has several purposes, one of which is to evaluate this person’s ability to analyze, communicate, and deal with adversity (e.g cross-examination). Make sure your theories and personality mesh with the expert. This is someone with whom you will be associated for the duration of the lawsuit, so it should be someone with whom you feel comfortable in approaching and discussing various aspects of the case. In addition, it will help you to know whether or not he or she will have the time and willingness to help you prepare and conduct your trial.

From How to Use Experts to Prove the Plaintiff’s Case, Thomas M. Dempsey, The Advocate Magazine, January 2008.

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Dr. Joseph Maytal, expert witness and specialist at Schneider Children’s Hospital on Long Island, testified Friday that an infant boy taken away from his parents amid allegations that he was shaken was not the victim of child abuse. “I think that we have enough here to at least doubt that there is child abuse,” said the pediatrics expert witness. Dr. Maytal testified in St. George Family Court during the trial to determine whether Qundeel Sajjad and her husband, Sohail Sajjad, can regain custody of their two young boys from the city Administration for Children’s Services. silive.com also reports:

Mrs. Sajjad, 31, was the first Islander to be accused under Cynthia’s Law when prosecutors alleged that she violently shook her 7-month-old and caused him to be hospitalized with internal bleeding on the brain in December 2006. The mother of two and her husband claimed the infant fell 3 feet from a baby swing onto a hard kitchen floor….

Dr. Maytal, who reviewed the child’s hospital and follow-up medical records, said the baby suffered from “external hydrocephalus,” a condition that can cause bleeding on the brain in infants. “It means the child is susceptible to bleeding,” Dr. Maytal said. ‘Infants with external hydrocephalus] don’t need to have a major trauma to have a subdural hematoma,’ Dr. Maytal explained, noting that the baby’s condition could have been the result of genetics rather than a violent shaking.

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In Avoiding the Top 10 Mistakes with Distributor Agreements, Glen Balzer, management and forensic consultant and expert witness in domestic and international marketing and sales, shares a checklist of ten common mistakes to avoid when drafting your next distributor agreement. Mistake #2 is entitled Termination for Cause Only.

Most distributor agreements involving seasoned distributors and manufacturers allow for termination for cause and termination for convenience, (or no cause at all). Less experienced partners sometimes attempt to allow for termination for a limited set of specific causes. Termination for cause is sometimes straightforward and without controversy, as when one partner declares bankruptcy. However, partners sometimes disagree over the presence of cause. Partners often disagree over responsibility for cause.

The best distributor agreements allow for termination for cause and for termination for convenience. When an agreement allows termination for convenience, a partner wishing to disengage from the agreement serves Notice of Termination to the other partner with 30 days notice. When the convenience clause is invoked, cause and responsibility for cause need not be argued. More important, the distributor agreement does not end in a legal skirmish. Without a legal confrontation, the distributor and manufacturer are able to focus on their respective customers and businesses without consuming management time, corporate focus and financial resources on attorneys, courts and arbitration.

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31-year-old boxer Joey Gilbert was temporarily suspended in October when the Nevada Athletic Commission announced his positive drug tests. Now Gilbert has filed a motion with the commission to remove its executive director, Keith Kizer, from all further involvement in his case. The commission says Gilbert tested positive for a steroid, amphetamine and three other drugs before and after a fight on Sept. 21. Gilbert alleges that Kizer tampered with a witness when he e-mailed Voy, a respected sports medicine expert witness and author of “Drugs, Sport and Politics” who had agreed to draft a response to the commission, specifically Kizer. RGJ.com also reports:

After receiving Kizer’s e-mail, Voy informed Gilbert he would not complete the draft for him. ‘Contacting our expert witness with an accusation and intimidating e-mail is beyond comprehension,’ (Gilbert’s attorney) Schopper said. ‘I can’t speak for Mr. Gilbert, but I think the unfairness with which he’s proceeded against him in the media … It’s just appalling.’ At the end of the motion, Gilbert offers a partial explanation for a number of positive tests. He reveals he had a prescription for Valium, a sleeping aid that can remain in the system for up to 42 days and that can metabolize into nordiazepam, temazepam and oxazepam, three of the initial six drugs Gilbert tested positive for.

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In Avoiding the Top 10 Mistakes with Distributor Agreements, Glen Balzer, management and forensic consultant and expert witness in domestic and international marketing and sales, shares a checklist of ten common mistakes to avoid when drafting your next distributor agreement. Mistake #1 is entitled Too Much Too Fast.

Every new partnership between a distributor and a manufacturer is born in a period of bright optimism. Like marriage, there is a limit on the number of partnerships in which a supplier or distributor may engage. By aligning with a new distributor, a supplier is prohibited from singing an alternative distributor. By aligning with a new supplier, a distributor is prevented from immediately signing an additional supplier. When aligning with a new distributor, it is important to assign a territory that is not too large initially. If a distributor is proven in only small territory, it is not prudent to assign a large territory and hope for the best. A better policy would be to open a new distributor relationship in that distributor’s proven territory and expand the territory gradually, after results in the smaller territory suggest that an expanded geography is judicious.

Glen Balzer, President of New Era Consulting, can be reached at glen@neweraconsulting.com.

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Former Orange County Sheriff Michael S. Carona, charged with selling access to his office for cash, favors and gifts, has retained Jones Day on a pro bono basis. An allegedly corrupt sheriff who is making about $200,000 a year in retirement makes for an unusual pro bono client but colleagues say Jones Day Los Angeles attorney Brian A. Sun took the case because he considers it an example of government overreach.. Carona will pay the cost of law enforcement expert witnesses, his local attorney, and investigators. LATimes.com also reports:

…Sun offered to handle it pro bono as long as Carona resigned. Carona would continue to pay all costs of the defense, such as investigators and expert witnesses. Carona also agreed to pay Jones Day’s legal fees up to the date of his resignation this month, and he continues to pay H. Dean Steward, a San Clemente attorney who has represented him for more than two years. “To suggest that he’s getting a free legal ride is wholly inaccurate,” Sun said. “Mike and his family will likely expend much of their net worth defending these charges.”

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St. Luke’s Magic Valley Regional Medical Center has sued a Washington attorney who represented the hospital between 2003 and 2006 saying that Tom Luciani did not adequately defend against claims of Medicare fraud and other record-keeping practices. When the hospital discovered Luciani had no plan to produce a medical billing expert witness to counter testimony from a plaintiff’s witness, it hired its own counsel in 2006. Times-News Magic Valley.com also writes:

The complaint, filed Jan. 17 in U.S. District Court in Boise, claims that Tom Luciani intentionally breached his fiduciary duty and committed professional malpractice while representing the hospital and Farmers Insurance between July 2003 and early 2006. Luciani was brought on by the insurance company to represent the hospital during litigation that started in 2001 with a tort claim against the hospital by two former employees….

According to the hospital’s most recent court filing, Luciani had a longstanding relationship with Farmers, which brought him in to replace another lawyer when the case moved to federal court. Following the desires of the insurance company, the complaint states, Luciani’s strategy focused on protecting Farmers from any damages while leaving the hospital open to a possible $22 million judgment.