Articles by Expert Witnesses

The prestigious Advanced Practices Council just released a study that was not intended for lawyers, but which litigators and in-house lawyers should understand. We summarize the recommended best practices, explain why most Information Lifecycle Management applications fall short, and tell you why many lawyers should care.

When one tries to imagine how many digital images are captured each day around the world to preserve some type of visual data for accident or crime scenes, it quickly becomes apparent that there are practical uses for photogrammetry in forensics and reconstruction. Historically, the Remote Sensing and Mapping industries have been the largest users of photogrammetry; however, there has been an adoption of this technology in areas such as architecture, forensics, archeology and film.

In the legal industry forensic animations have seen a growing use by lawyers and courts since the early 1990’s. Even so, there are still numerous people who have avoided this technology simply because of a lack of understanding. Yet, time and time again, forensic animations have proven to be advantageous in deciding settlements or trials simply because they are one of the best communication tools available to lawyers and accident reconstructionists today.

This article introduces my tested and proven four-tier, 13 step model which focuses on the actions that must be taken to turn around, overcome, and compensate for deficiencies in project management, methodology, technology, and people in live, ongoing projects — before you scrap the project, fire your staff, and/or move to litigation!

Franchise Disclosure Documents are a good concept in theory. Unfortunately, reality plays a more important role and reveals an entirely different picture. Here are some of my observations, based on twenty-eight plus years of experience in the franchise industry as a franchise attorney, franchise expert and former franchise owner. During this time, I’ve drafted, reviewed and negotiated over 500 Franchise Disclosure Documents.

A company planning to franchise a business must realize it is entering a new business, offering an entirely different service (training & support) to entirely new customers (business owner-operators). This new business requires different skills, abilities and expertise. In the new business of franchising, it is critical to develop effective evaluation, documentation, training and consulting skills.

Evaluating franchise attorneys and evaluating franchise consultants can seem a daunting task. But the firm a company selects to assist its entry into franchising (or refining existing franchise efforts) will have profound consequences. While you can always ask for a list of "references" (and when is anyone ever dumb enough to provide a bad reference?) there are more objective criteria that are not dependent on selectively disseminated information.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that establishes legal and operational guidelines for private pension and employee benefit plans. Not all decisions directly involving a plan, even when made by a fiduciary, are subject to ERISA’s fiduciary rules. These decisions are business judgment type decisions and are commonly called “settlor” functions.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that establishes legal and operational guidelines for private pension and employee benefit plans. The law requires that plan sponsors must provide participants with specific information about plan features and funding. ERISA also establishes certain fiduciary responsibilities for those who manage the plan, which is what will be discussed in this article.

There are two types of hazards from domestic hot water systems: scalding and thermal shock. In the last few decades, the plumbing industry has come a long way in protecting people from these hazards.

Computer forensic techniques must ensure that data collected during electronic discovery can be used as evidence in a court of law.

The "bible" of diagnoses, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Text Revision, known as the DSM-IV-TR and published by the American Psychiatric Association is extensively used by psychiatrists, psychologists, social workers and most other mental health professionals in the U.S., Canada and abroad to provide a common nomenclature for diagnostic purposes and for communicating about mental disorders.

Psychological assessment is an invaluable and inestimable tool in the understanding of individual uniqueness. A comprehensive assessment helps explain the connection between psychological functioning and behavior. To be comprehensive, an assessment needs to examine a range of psychological factors.

Guardians ad litem originate from a practice in the English Court of Chancery when the King, under his parens patriae powers, would appoint a guardian ad litem to protect the interests of the infant. Today, the court appoints child custody evaluators, (GALs) whenever it believes it necessary to protect the interests of a child in a judicial proceeding.

When deciding upon an expert one might want to consider the following questions: • Has the expert ever testified before? How many times? • How does the expert present in court? Is he well organized and is his thinking logical and easy to follow? • Is he a member of major professional organizations? • Does he employ well-known and generally accepted psychological tests?

Cross-examining mental health experts is often a difficult challenge for attorneys as they are un-familiar with the material. I will discuss the most commonly used psychological measures and key points to keep in mind when questioning experts, either in deposition or on the stand.

En Belgique, la réforme du Code judiciaire applicable à l’expertise judiciaire qui fut votée en avril 2007 est d’application depuis le 1er septembre 2007. Après septe mois de pratique, cet article met en avant les principales nouveautés de cette loi et en tire de premiers enseignements.

Portable media devices put companies at risk of data theft or loss.

Parent Alienation Syndrome (PAS) in custody cases

The contents of the medical record, such as deviations from standards of care, inaccurate or incomplete documentation can make the difference in your pressure ulcer case.

This year, California employers will pay nearly $15 billion for workers compensation insurance. Although premiums – the price insurers charge for coverage – have dropped by half in just four years, they remain a major expense and an occasional severe headache for many companies.

As more and more business is conducted electronically, the legal community has become aware of the need to properly archive data that might be required as evidence in litigation. Computer forensics investigation certainly plays a key role in the electronic discovery process.

Organizations purchase computers and other electronic equipment to increase productivity and improve customer service — but that doesn’t mean that’s all the equipment is used for. Employees tend to assume a degree of “ownership” of the devices on their desktops, and use them to some extent for personal reasons.

Ultraviolet light (UV) and electron beam (EB) curable materials are unique solvent-free compositions that cure (harden) in a fraction of a second upon exposure to a UV or EB source. The absence of solvent eliminates the need for large baking ovens used to process conventional solvent-based coatings (paints) and inks.

When you need access to computer records or databases often you need to convert that data to a format your staff can use during investigation. When dealing with source data from IBM Mainframe and Mid-Range computers, the data files can use concepts foreign to PC languages and applications. Conversion accuracy and process documentation are critical to solid evidence. Many factors should be considered.

The latest advancements in Computer-aided design render forensic scientists far more helpful to attorneys, with far less effort, than ever before.

Post Traumatic Stress Disorder, or PTSD, is a psychiatric diagnosis that is overused in civil litigation. Plaintiffs inappropriately claim to suffer from PTSD despite the fact they they did not experience a life-threatening, horrific circumstance. The role of subjectivity in psychiatric diagnosis is explored and the objective criteria for PTSD are explained.

As an attorney, any time you or your firm handles a case where health, illness, or injury is an issue you are going to need to review medical records. Whether you are a plaintiff or defense attorney, everyone needs to analyze and understand the contents of the medical record, and face it; they can be extensive and seem like a complex mystery.

Webster's Dictionary defines the word defect, as: 1. lack of something necessary for completeness; shortcoming 2. an imperfection; fault; blemish. To some Plaintiff Attorneys, and their Experts, the word defect has an entirely different meaning. It could mean that the work was performed with less than absolute perfection, with the "Standard" being "Absolute Perfection".

In my previous article entitled "Construction Process Can Lead to Defects", I illustrated various aspects of how the construction process may well lead to defects.

Webster's Dictionary defines the word defect: 1. lack of something necessary for completeness; shortcoming 2. an imperfection; fault; blemish. When relative to construction claims, the word defect also equates to financial disaster when it reaches litigation.

While the NSC publications provide generous guidance, two aspects they do not address fully are the application and implication of ergonomics and human factors in the design of machine safeguards.

Confined Space entry and Lockout & Tagout under OSHA are procedural standards... using procedures and practices to a significant degree. Due to this, there are always "questions" of what a certain section may mean. OSHA has offered numerous interpretations, and this article discusses some of those. This article appeared in the February 2005 issue of Occupational Health & Safety.

Interlocks are often required by codes and standards, but sometimes, where there is no such requirement, the safety philosophy of the configuration needs to be examined. The following article, previously published in a safety journal, discusses some related issues.

Many people think psychiatric illness routinely renders patients incompetent to make important decisions about their lives. This month’s column, by Dr. Brian Crowley of Washington, DC, attacks that myth and discusses some situations in which clinicians must address their patients’ mental capacity. William H. Reid, MD, MPH

The TASER type device (also known as an Electro-Muscular Disruption Device or EMDD) has received considerable news coverage over the last few years and most recently involving its deployment on a University of Florida student on campus several months ago. Much discussion has been generated as to when this type of weapon should be deployed by police and law enforcement personnel, and where it falls within the Use of Force Continuum.

Disaster preparedness is no longer just an accreditation issue. “All Hazards” disaster planning is no longer just a requirement of qualifying for federal grants. Education is no longer a last priority. Disaster planning, preparation and education are the newest legal shield for the healthcare corporate officer.

Adult Attention Deficit Disorder affects 4% of the population, and an even higher percentage of criminal defendants. It is a valid diagnostic concept, and treatment with correct medications is usually effective in some behavioral change.

It may not be fair, but it’s true: Your first few months as Managing Partner—the time when you are just starting to grasp the totality of your new job—may well turn out to be the most crucial in setting the stage for a tenure that hopefully should last for years.

The Science of Eyewitness Testimony Published in the Los Angeles Lawyer Magazine, October, 2007

Improve your hiring by becoming a master of questioning.

In nearly every meritorious missed cancer case there comes a time when the defendant’s attorney, losing on the facts, considers use of The Doubling Time Defense. By that time, the Plaintiff has already shown beyond doubt that the defendant physician had a Duty to take care of the patient and that there probably was a Breach of the Standard.

Is the defendant guilty? Is the defendant suffering from a mental health malady that prohibits him from understanding the nature of the crime? Is the defendant able to consult with a lawyer and fully understand the charges against them?

Under a recent Amendment to Federal Rules of Civil Procedure (Rules 16 & 26) ALL U.S.-based companies are required to archive ALL email, instant messenger conversations, and electronic documents for use in court if a company is ever sued.

Failure analysis determines the root cause of failure. The information presented in the failed component allows a company to reduce the possibility of re-occurrence. This paper will discuss failure analysis in general terms.

The proposed merger of the DM&E into the Canadian Pacific and its entry into the coal rich Powder River Basin of Wyoming is sure to be opposed by the Union Pacific and BNSF, which now alone originate coal shipments there. The dispute will need to be resolved by the Surface Transportation Board. If the transaction is approved, the rates for transporting coal are likely to be reduced, favoring the construction of coal fired electric generating stations.

As long as home prices continued to increase at a blinding rate, there was no reason for the lenders to worry about the security for the loan they approved and funded. Now, in a very different market environment, they find themselves facing mass defaults on loans and very angry homeowners who say that the loan underwriters deceived them when they allowed them to purchase homes for which they were clearly unqualified.

Fingerprint evidence has widely been thought to be irrefutable in court. Things aren't always as they appear to be.

Rules change is forcing organizations to establish processes for archiving, retrieving and handling data for evidentiary purposes.

Sometimes corners are cut when utilizing forensic science to "solve" an issue at hand. This can lead to life affecting mistakes as well as expensive blunders. It is important to utilize all the tools available in order to reach a valid forensic opinion.