August 29, 2012

ESI Management- Another Criteria for Expert Witness Selection

While you were probably already concerned about how your consultants and expert witnesses store and manage any electronically stored information (ESI) that is transmitted by you concerning your cases, now you have even more incentive.  In August 2012, the American Bar Association approved recommendations put forth from its commission on Ethics 20/20 that was formed a few years ago.  Recommendation 105A dealt with lawyers’ responsibility to reasonably safeguard their clients’ ESI.  While this was already a practice by many lawyers, this recent ruling addressed language to affirm and clarify this responsibility (although the definition of “reasonable” will be debated).  

How does this affect your handling of consultants/ expert witnesses?  An existing rule of professional conduct, Rule 5.3, states that when sharing information outside of the firm and to a non-lawyer, the lawyer should take reasonable assurance that the person’s conduct should be compatible with the professional obligations of the lawyer.  This existing rule, along with 105A, places more responsibility on lawyers and their expert witnesses to manage their ESI.

How candidate experts manage your documents may have been asked during your interview process, but going forward you may want to ensure this is a routine question – and yet another metric when sizing them up for the job.  Do they store client data on a PC, I-Pad, or thumb drive?  What happens if they lose that device?  Is the data encrypted or password protected?  Make sure they have answers.

The author,  Michael Fisher, is the President of The CECON Group and recently taught a course at the Jenkins Law Library in Philadelphia  entitled “Best Ethical Practices for Hiring and Managing Expert Witnesses.”  

August 16, 2012

Reflections of an Expert Witness

Dr. Stanley Tocker, who has testified in over 25 legal cases as a consultant and expert witness, recently shared some insight into his experiences as an expert witness.

Q: What makes a good expert witness?
Tocker: First, you must know your subject, especially the par­ticular area involved in the case in which you are testifying. Then, you must be able to document your expertise, through academic credentials and/or in-depth experience. Finally, you must look and sound as if you know your stuff.

Q: Why are expert witnesses needed?
Tocker: Prevailing in technical law cases often depends almost as much on the quality of experts as on the skill of attorneys. By quality I mean not only knowledge and credibility but also such factors as stage presence, creativity and self-control in court appearances.

Q: Why are an expert witness's qualifications so important?
Tocker: Opposing counsel can challenge your qualifications as an expert witness, in order to reduce the impact of your report and testimony. This challenge can range from probing questions - intended to embarrass you or throw you off your stride - to questions about your school grades, your licenses, your moral standing,  or your other witness work. You can't get impa­tient - sometimes you have to have a thick skin.

Q: Can you give us a personal experience about this?
Tocker: Recently I sat through a five-hour deposition while five attorneys were trying to disparage my credibility and testi­mony. The first 90 minutes were a tedious review of my back­ground, as well as irrelevant personal questions which were clearly an attempt to show that I was a "hired gun" who could not be trusted. Later they asked many questions related to the substance of the case in many different ways, to attempt to discover a contradiction.

Q: Should you agree to be an expert witness in every case?
Tocker: No - only in those cases in which, in good conscience, you can testify honestly and objectively. You should ask the attorney who retained you for all information he or she has about the case – both positive and negative – to make an informed decision about whether to testify. You should think of yourself as a teacher instead of an advocate for the party that retained you.

August 9, 2012

What Do You Do When Your Expert’s Opinion Disagrees with Your Trial Strategy?

A Federal Court judge warned Samsung on Wednesday to rethink its allegation that Apple improperly influenced its expert witnesses when Apple called a meeting to discuss changes in the expert’s report. (Apple lawyers pointed out what appeared to be a typographical error in the report, contends the expert. The complete story can be found here.)

In this case, expert tampering may not be an issue. But experts may often face pressure to amend their reports and this can present an ethical dilemma.

A client attorney may have an “answer” or prepared defense that he or she is hoping the expert opinion will  support. However, it is important for an expert to maintain independence and render an opinion without influence from the client. The expert’s testimony also has to stand up to cross examination in a trial or deposition, so the expert is obligated to render an independent opinion based on his or her expertise, regardless of the client’s trial strategy.

So, what happens when the hired expert reaches a different conclusion than the client had hoped for when hiring him/her?

Often, this means more work needs to be done. If the attorney’s theory does not hold up with his own expert, it most likely will not hold up in court. Modifying trial strategy may seem like a daunting task, especially if the trial date is looming.

Additional research or obtaining corroborating expert opinions can be costly and time consuming. In an ideal situation, information provided by the expert may lead to a minor re-tweaking of trial strategy or a subtle difference in approach only.

How do you handle an expert opinion that does not fit your strategy?

The CECON Group has been providing science and engineering expert witnesses to attorneys since 1985.

August 3, 2012

Best Ethical Practices for Hiring and Managing Expert Witnesses

Locating the RIGHT expert witness with the substantive knowledge, personality, and skills to work on your case can feel like a daunting task.

Once retained, questions often arise surrounding the scope of the assignment, duties regarding confidentiality and propriety information, fees, and other ethical concerns.

On August 15th, learn how to anticipate and address these issues while preparing your case.

Please join CECON President Mike Fisher on Wednesday, August 15th at 5:30 p.m. at the Jenkins Law Library in Philadelphia as he shares “Best Ethical Practices for Hiring and Managing Expert Witnesses.”  

Marla Tocker Palmer, J.D. will provide a legal perspective and participate in leading the discussion.

For more information and to register for this program, please click here:

Michael Fisher is President of The CECON Group, which manages a network of 1200 science and engineering consultants and has been providing expert witnesses to the legal community since 1985. Mr. Fisher has over 30 years of experience with large corporations and early-stage companies. He was formerly with Cabot Corporation, where he led sales, marketing and strategic planning for a $350 million division. Before Cabot, Mr. Fisher was with DuPont for several years in various engineering, marketing, and management positions. Mr. Fisher has a B.S. in Mechanical Engineering from Carnegie Mellon and an M.B.A. from Rensselaer Polytechnic Institute.

 Marla Tocker Palmer, Esq. is a board member of The CECON Group.  She has over 20 years of legal experience in a variety of areas including insurance defense litigation, medical malpractice defense, personal injury defense, commercial litigation and, most recently, patent litigation and patent prosecution.  Ms. Palmer has a B.A. in Communications from Goucher College, a J.D. from Temple University School of Law and an M.S. in Biotechnology from The Johns Hopkins University.  Ms. Palmer is a member of the Delaware bar and is admitted to practice before the United States Patent and Trademark Office.