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An Expert Witness Defense Fund was established today by the Free Software Foundation and the Recording Industry vs The People blog (run by copyright attorney Ray Beckerman) to help defendants cover the costs of entertainment and media expert witnesses used to defend themselves against file-sharing lawsuits brought by the recording industry. “This could be a real catalyst in the file-sharing litigation,” Beckerman said. If you agree and want to contribute to the fund, the FSF has a page set up for contributions. If you’ve found yourself on the wrong end of a file-sharing lawsuit, you can e-mail Beckerman with the subject “Technical Expert Funding Request.”

Ars Techica reports that cases will have to meet certain criteria to benefit from the fund including the defendant’s willingness to see the case through to conclusion, the importance of the case to critical legal issues, the amount of money spent by the defendant and/or the attorney fighting the infringement claims, the need for assistance and technical expertise, and the competing needs of other cases.

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A San Francsico federal grand jury has indicted Barry Bonds on four counts of perjury and one count of obstruction alleging that he “knowingly and willfully” made material false statements regarding his use of performance-enhancing substances during his grand jury testimony in the into the Bay Area Laboratory Cooperative. Bonds had a grant of immunity during his 2003 testimony with one exception: If he committed perjury or made a false declaration, he could be charged.

Columbia University law professor John C. Coffee Jr., a white-collar crime specialist, said it will be hard to prove that Bonds knowingly made a false statement with the intent of misleading the grand jury. “You can imagine the defense putting on expert witnesses about how Bonds could have believed this was some of exotic” but legal product, Coffee said, reports LATimes.com.

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The West Virginia Supreme Court of Appeals has ruled that Ohio Circuit Judge Arthur Recht improperly excluded neurosurgery expert witness Peter Sheptak in a trial over a car crash. The decision means Sheptak can to testify for Lambert Jones II, whose Ford Probe rear ended a Lincoln driven by George Naum in 2003. Naum claims the collision caused a concussion, headaches, dizziness, confusion, and memory problems but the expert witness said “this was an extremely low level impact with no significant discernible damage to either vehicle. I find it highly unlikely that the patient suffered a concussion during the impact,” he wrote. “I also feel it highly unlikely that he struck his head on the roof as he reported to several physicians.”

Naum’s attorney had argued that Sheptak could not testify about any change in velocity that Naum experienced because Sheptak was not a biomechanics expert witness.

As reported in the WVRecord.com

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The West Virginia Supreme Court of Appeals recently held that although a medical expert witness does not use the medical tools alleged to have caused harm does not mean he or she may not testify to the standard of care needed while using them. The court found the fact that urology expert witness Dr. Robert Lewis “uses a different method to perform a urethral dilation procedure does not disqualify him from giving testimony on the standard of care to be employed when performing this type of procedure.” LegalNewsline.com also reports:

“What this case demonstrates is how this Court’s decision to abandon the locality rule in medical malpractice cases in favor of a standard of care more national in approach is often misemployed to prevent qualified physicians from offering testimony in cases brought under the (Medical Professional Liability) Act,” Justice Joseph Albright wrote.

“As we observed in Paintiff (v. City of Parkersburg, 1986), the need for employing a locality rule in medical malpractice cases was no longer present due to the omnipresence of medical information relative to the treatment of diseases and injuries.”

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The murder trial of Wilson Santiago could cause Ohio to reconsider its controversial rule forbidding defendants from seeing all of the state’s evidence against them. Santiago is accused in the 2006 shooting death of Cleveland Detective Jonathan “A.J.” Schroeder. Defense lawyers want the police reports in order for sanity/trial competency expert witnesses to evaluate Santiago’s sanity and psychological competence to stand trial.

The prosecution argues that case law and the state’s court-procedure rules explicitly state that a defendant isn’t entitled to police reports but Common Pleas Judge Janet Burnside declared “Fundamental fairness compels the disclosure. The obvious means to protect a capital defendant in his trial is to provide copies of the police reports and witness statements to defense counsel so that they can be as prepared as their possible expert witnesses and can discern for themselves what exculpatory information is contained in those police reports,” she asserted, according to Cleveland.com.

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In Defense Medical Expert: Turning the Defense Advocate Into the Plaintiff’s Witness, R. Rex Paris advises on the cross-examination of a defense doctor. Paris writes that often the defense medical expert witness creates a “mountain of rubbish” which mesmerizes the jury. Because jurors do not have the benefit of court experience, they often become confused about the severity and/or cause of the client’s injuries.

The simplest way to handle this problem is by subpoenaing the defense doctor and calling them as an adverse witness. Any designated expert whose deposition was taken can be called as a witness by any party. (You have to pay them but it is worth it.)… It is essential that the defense doctor be discredited before the jury becomes convinced of their infallibility. In order to diffuse the defense doctor’s testimony, we must first recognize that we are afraid of the expert. We know that if the jury believes the defense expert, the best we can hope for is a lower verdict.

More to follow…
Excerpted from Consumer Attorneys of California, October 2007

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South Dakota Attorney General Larry Long has hired the firm of Stinson Morrison Hecker LLP to defend the state in a lawsuit over the school-aid formula. Long described the case as countering education and schools expert witnesses from the parents and schools challenging the adequacy of the state-aid formula. “There are these pods of experts who go around the country assisting people who bring lawsuits in these matters,” Long said. “This firm has experience in dealing with those experts and defending states in these kinds of cases.” ArgusLeader.com also reports:

Long said the firm was brought to the case because of its experience in handling similar lawsuits in other states. The firm will help examine and cross-examine expert witnesses in the case, he said. Most recently, the firm worked with state officials in Missouri in a school-funding case, and the state won that case, Long said.

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Ex-drill instructor Sgt. Jerrod Glass is standing trial in military court for allegedly hitting, slapping, and abusing dozens of recruits. Expert witness Gunnery Sgt. Rogerio De Leon, one of the depot’s most experienced drill instructors, testified that even “incentive training” has strict guidelines. The military expert witness said recruits in the first weeks of training can be ordered to do push-ups as incentive training for only three minutes at a time, followed by a 30-second break. The prosecution argued that Glass treated Marine canines better than soldiers. LA Times.com also writes:

Gunnery Sgt. James Cobb, who was kennel master at the Marine Corps Recruit Depot here when Glass was assistant kennel master, testified as a dogs expert witness that Glass followed one of the cardinal rules of dog-handling: Never hit a dog…’Are you trying to argue that he treated his dogs better than his recruits?’ (defense attorney) Meeks asked in an angry tone. ‘Yes,’ said Capt. Christian Pappas, the prosecutor.

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on planning ahead when drafing confidentiality / protective orders.

Confidentality / protective orders take many forms. In their most extreme, but not uncommon, incarnation, CPOs must be signed by every individual working on the team (expert and support staff alike) and must be sent to the other side for approval. Such an arrangement has several drawbacks. First, it requires you to disclose your experts (testifying and consulting) and support team long before expert reports are due. In addition, it creates delay and coordination costs that are often burdensome and can slow the process at critical times (e.g. when auditing must be completed quickly and requires additional “fresh eyes”, to review statistical programs and exhibits). A convenient way to proceed is to have the CPOs require signatures from one representative per entity, rather than every member of the team, though this approach must be balanced aganist the value of knowing the size of the opposing group.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

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Jamaican expert witness Fitzmore Coates testified Thursday at the inquest into the death of ex-Pakistan cricket coach Bob Woolmer. Woolmer, 58, was found unconscious in his Kingston hotel room on March 18 and Coates, acting chief forensic officer at the Government Forensic Science Laboratory, said tests showed traces of the potentially deadly pesticide cypermethrin. The toxicology expert witness said 3.4 milligrams per millilitre of the deadly pesticide was found in Woolmer’s stomach. “The final calculation of cypermethrin in the stomach content which I analyzed would be significant. It could cause vomiting, diarrhea, nausea and death,” Coates. He also found cypermethrin in samples of blood and urine taken from Woolmer and the substance was also seen in a straw-coloured liquid taken from Woolmer’s room at the Jamaica Pegasus Hotel. AFP.com also reports:

Last month, the government’s pathology expert witness Dr. Ere Sheshiah, who performed the post-mortem in Woolmer’s body, told the court the cause of death was “asphyxia, associated with cypermethrin poisoning.”