Category Archives: Business Development for Experts

Expert Silenced for Giving Truthful Testimony

Sexual predator laws hold defendants convicted of sex crimes in detention after they have served their sentences. The laws are premised on the popular belief that sexual predators have an uncontrollable compulsion to commit sex crimes, and that an indefinite civil commitment time is an appropriate means of protecting society from the crimes they might commit in the future.

State legislatures avoid double jeopardy concerns by claiming that sexual predators are not receiving more punishment after they finish their sentences. The laws generally require that defendants who are labeled as sexual predators must receive treatment, although whether any treatment can defeat an actual compulsion to commit sex crimes is a hotly debated topic.

Whether or not they receive treatment, individuals who are labeled as sexual predators are confined to institutions that in many respects are indistinguishable from prisons. The deprivation of freedom has a punishing impact even if punishment is not the law’s stated purpose.

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should be released from confinement.

The government typically resists release by calling experts who testify that the risk persists. Offenders respond with experts who testify that there is little reason to believe the offender will commit a new sex crime.

But do the experts have the data they need to form reliable opinions? As a recent article in Reason explains, the State of California took extraordinary steps to suppress a study that would have helped expert witnesses make better judgments about the risk to society that follows the release of an offender who has been defined as a sexual predator.

Sexual Predator Laws

Before an individual can be deprived of freedom, perhaps for the rest of that person’s life, sexual predator laws require two conditions to exist. First, the alleged predator must have been convicted of a sex crime. Each state defines the specific offenses and the number of convictions that are required before sexual predator proceedings can be commenced.

Second, a court must determine that the person poses a high risk to society. While the definition of a sexual predator who should be civilly committed varies from state to state, it generally has two components: (1) the alleged predator suffers from a mental abnormality or personality disorder that seriously impairs the ability to control sexually violent behavior, and (2) because of that disorder, the alleged predator will probably engage in acts of sexual violence if not confined.

Expert witnesses play a key role in sexual predator proceedings. Psychologists with experience evaluating sexual predators make predictions about the risk of future violence. In a typical case, experts testify for the government and for the alleged predator. A judge or jury then decides whether the government has met its burden of proving that the alleged predator must be confined for the safety of society.

Like too many laws, sexual predator legislation is based on fear, not on a neutral assessment of data. While offenders who commit other crimes are released after serving a sentence, public sentiment (or at least the sentiment of people whose voices are heard by legislatures) favors continuing the confinement of sex offenders on the unsupported theory that sex offenders are more likely than other criminals to commit new offenses after they are released. In fact, the data shows that most convicted sex offenders are never charged with another sex offense after they are released from prison.

Expert’s Study Undermines Premise of Sexual Predator Laws

Arguably, empirical data concerning sex offender recidivism does not capture the subset of offenders who are selected for additional confinement as sexual predators. Jesus Padilla decided to answer that question by gathering data that addressed the relevant population.

Jesus Padilla was a psychologist employed at Atascadero State Hospital in California. Padilla tracked individuals who had been confined as sexual predators and who were released without treatment after the State dropped the ball in pursuing recommitment (a process that California required at the time). Since the legal system identified those individuals as sexual predators but failed to give them treatment, Padilla expected that they would have a high rate of recidivism.

Padilla was surprised to find that five years after their release, only 6.5% of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49% of offenders convicted of other crimes are rearrested for a similar offense within 5 years of release.

Padilla’s Expert Testimony

In 2006, an individual confined as a sexual predator in California petitioned for release. His lawyer learned of Padilla’s study. The lawyer subpoenaed Padilla to testify as an expert witness.

The state objected that Padilla’s publicly funded research was confidential, a silly claim that the judge rejected. To protect the privacy of individuals who were studied, the judge limited Padilla to giving a summary of his findings.

Padilla’s research called into question the rationale for sexual predator confinements. Because he is honest, however, Padilla gave honest testimony about his research results. It turned out that honest expert testimony did not sit well with the State of California.

Expert Silenced for Telling the Truth

Like the prison industry, the sexual predator industry is a substantial employer. California spends more than $300 million a year on its sexual predator program. State employees depend on courts filling institutions with sexual predators so that they will continue to draw state paychecks. Perhaps it isn’t surprising that, with their jobs on the line, employees of the department responsible for confining sexual predators resisted Padilla’s conclusions.

It is surprising, however, that California chose to silence Padilla rather than criticizing his study or funding larger studies to determine whether his results could be replicated. According to a law review article that examined Padilla’s research, Padilla’s study was “halted in midcourse” after he testified. Reason explains that Padilla’s “records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.” His boss accused him of illegally accessing conviction data, a bogus charge that was dismissed after an independent investigation concluded that it was groundless. Padilla’s efforts to restart the research were consistently rejected.

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state claimed an inability to verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

Censoring an expert and suppressing an expert’s research because the expert’s findings are unwelcome is a shameful response to honest research. As Reason notes, authorities in California apparently prefer to adhere to their “unexamined assumptions” rather than considering evidence that might contradict the foundations of their work.

The law professors concluded that after Padilla testified, the state “may have realized the study had to be stopped because it threatened the legitimacy of the entire [sexual predator] program.” Nothing could be more antithetical to the honest research and expert analysis upon which the legal system depends than suppressing knowledge that undermines the basis for depriving individuals of their freedom.

 

Memories

Are You Thinking About Becoming an Expert Witness?

In this time of economic uncertainty, a part-time gig as an expert witness might provide helpful supplementary income. Almost anyone who has knowledge or training in a specialized field that exceeds the knowledge of most people has the potential to be an expert witness. At the same time, some people are more suited for the role of expert witness than others.

Individuals with degrees in engineering, accounting, psychology, and a variety of scientific disciplines regularly appear as expert witnesses. They explain or refute the economic and emotional losses claimed by plaintiffs. They analyze the likelihood that a defendant’s conduct did or didn’t harm a plaintiff. Medical experts testify about the nature and degree of injuries or disabilities.

In intellectual property cases, experts explain how a new invention or song is similar to or different from a patented invention or a copyrighted song. Experts in real estate valuation offer opinions about the value of real property. Experts in all kinds of personal property, from classic cars to comic book collections, offer opinions about the value of property that has been lost or damaged.

In criminal cases, expert witnesses who are employed by the government offer forensic or “criminalistics” testimony. The criminal defense bar employs experts to refute that testimony, often by pointing out the uncertain foundations upon which it is built.

Would You Be a Good Expert?

Not every field of expertise requires a degree. An auto mechanic who has serviced cars for many years might be well qualified to explain that a brake failure was the likely cause of an accident. An experienced roofer is well positioned to explain the cause of a leaky roof in a newly purchased home.

On the other hand, people often consider themselves to be experts despite having little more knowledge in a field than the average person. When experts in a field typically have specialized training, a court is unlikely to regard an expert as qualified in that field unless the expert can prove that he or she has the same training or experience that other members of the field commonly possess. Things do not go well for purported experts who try to fool a court by falsifying their credentials.

While specialized knowledge is essential, an expert witness must also be able to express that knowledge, both in writing and in testimony. In federal cases and in many state courts, a retained expert must prepare a written report. A witness who cannot prepare a report that states and supports opinions in clear language will have difficulty finding work.

Expert witnesses are often called upon to testify in depositions. Since most cases settle, they less frequently testify in court, but experts are sometimes called upon to give trial testimony. People who are nervous about speaking in front of a small group of people might not be good trial witnesses. People who are short-tempered or impatient will not respond well to cross-examination. Good expert witnesses have the ability to think on their feet, to answer complex questions in language that juries can understand, and to earn the respect of lawyers, judges, and juries by giving honest answers to difficult questions.

Expert Witnesses Are Not Hired Guns

Advocacy organizations that complain about “judicial hellholes” have tried to undermine the credibility of retained experts. To make it harder for plaintiffs to prevail in lawsuits against insurance companies and corporations, they have tried to spread the message that experts are “hired guns” who will say anything in exchange for a paycheck.

The truth is that most expert witnesses give honest opinions, whether they have been hired by a plaintiff or a defendant. They analyze the facts and arrive at conclusions that are supported by the evidence. While they are conscious of the goals a client hopes to achieve, they do not bend the truth to help a client win a case.

Experts who are “hired guns” in the sense that they offer unsupported or irrational opinions quickly lose credibility in the legal community. They become vulnerable to cross-examination. They risk having a judge reject their reports and bar their testimony because they offer opinions that no jury could regard as reasonable.

While expert witnesses can and should earn income by providing services to lawyers and their clients, the best motivation to become an expert witness is a desire to help jurors understand the facts of a case. Honest and ethical experts can enjoy a long and fruitful career as expert witnesses.

Only an Expert Can Testify that a Patented Invention Was Obvious

One defense to a patent infringement lawsuit is that the patent should not have been granted because the patented invention is based on an obvious modification of existing ideas. The issue in HVLPO2, LLC v. Oxygen Frog, LLC was whether a lay witness could testify about the obviousness of an invention. The Court of Appeals for the Federal Circuit ruled that expert testimony is often required to establish obviousness.

Facts of the Case

The two patents at issue involved a device that manages the flow of oxygen gas mixtures to torches used by glass artists. There was no question that Oxygen Frog infringed the two patents. The only question at trial was whether the device used a method for controlling the flow of oxygen that would have been obvious to a person with ordinary skill in the field in light of existing ideas and technology.

To establish that the technology underlying the patents was a matter of public knowledge before the patents were issued, Oxygen Frog pointed to a blog post on a glass blowing internet forum that described an oxygen system. That system was similar to the patented device, but it involved a single circuit while the patented device used two circuits, one to provide power to oxygen generators and the second to provide power to an air compressor.

Oxygen Frog also pointed to a video that was posted online by Tyler Piedbes, a glass blowing artist. Oxygen Frog deposed Piedbes and played most of the deposition for the jury. Oxygen Frog did not offer Piedbes as an expert witness.

Piedbes was asked whether he thought adding a second circuit to the oxygen system described online was an obvious modification. HVLPO2 objected that Piedbes was not offering admissible lay testimony because his opinion about obviousness could only be provided by an expert witness. The trial judge overruled the objection and Piedbes answered “yes.”

The court instructed the jury that Piedbes could offer an opinion as to whether the modification “would occur to him from his perspective” and whether the modification was obvious. The court also instructed the jury that it was to make its own determination of obviousness.

The jury decided the obviousness question in favor of Oxygen Frog. HVLPO2 appealed. It contended on appeal that Piedbes’ testimony was inadmissible because he did not testify as an expert.

Appellate Opinion

Obviousness is not analyzed from the perspective of an ordinary person. Rather, the question is whether the patented invention modified an existing invention or technology in a way that would have been obvious to a person of ordinary skill in the relevant field (“a person of skill in the art,” in the language of patent law).

The Court of Appeals noted that it “is often helpful to have a technical expert explain, for example, the scope of the prior art or motivations for combining various components.” That explanation cannot typically be provided by a lay witness, because explanations of facts that are beyond the knowledge of ordinary jurors can only be made by expert witnesses. A person who is not an expert in the relevant “art” cannot usually assist the jury’s determination of obviousness.

Priebes might have been an expert, but he did not testify as an expert. He was not disclosed as an expert witness and did not prepare an expert report. The appellate court rejected the argument that Priebes was entitled to provide lay testimony about obvious modifications of oxygen system that had been described online. That testimony was “the province of qualified experts, not lay witnesses.”

Oxygen Frog argued that Priebes’ testimony, even if inadmissible, did not harm HVLPO2. Of course, Oxygen Frog only called Priebes as a witness because it hoped his testimony would influence the outcome. The Court of Appeals noted that the jury may have relied entirely on Priebes’ testimony when it decided the question of obviousness.

The trial court’s limiting instruction did not cure the error because it expressly allowed the jury to consider Priebes’ inadmissible opinion. In addition, HVLPO2 could not make a Daubert challenge to test the reliability of Priebes’ testimony since Priebes was not designated as an expert. Under those circumstances, the failure to designate Priebes as an expert could not be dismissed as harmless error. HVLP02 was therefore entitled to a new trial.

 

Failure to Produce Expert Medical Witness Dooms Lawsuit Alleging Harm from Mislabeled Pills

David Sutton alleged in a lawsuit that he took acetaminophen that had been manufactured by Advance Pharmaceutical. He claimed that the product had been mislabeled as baby aspirin. He intended to take baby aspirin and contended that he experienced severe health problems as the result of taking acetaminophen.

Advance Pharmaceutical packages over-the-counter medications for distribution to wholesalers. It contended that the medications are intended for sale to hospitals, nursing homes, and pharmacies, and are not packaged for sale to the public. Advance Pharmaceutical admitted that it recalled baby aspirin in 2013 after a pharmacist noticed that a bottle of baby aspirin actually contained acetaminophen.

Sutton represented himself in the lawsuit. He appealed an order that dismissed the suit after he failed to pay a monetary sanction. The Michigan Court of Appeals concluded that the sanction was improper and ordered the trial court to reinstate the lawsuit.

The trial court again dismissed the lawsuit, this time because Sutton refused to sign forms authorizing the release of medical records so that Advance Pharmaceutical could determine whether he was taking other medications that might have caused his symptoms. Sutton again appealed and the court of appeals again reversed the dismissal.

Since Sutton had not produced a treating physician as a witness, the court of appeals concluded that he did not waive physician-patient privilege. The trial court therefore erred in holding that Advance Pharmaceutical had the right to view his medical records.

On remand, the trial court granted summary judgment to Advance Pharmaceutical, effectively dismissing the lawsuit a third time. Sutton brought a third appeal. A key issue on appeal was whether Sutton could prevail in his lawsuit without using an expert witness. The court of appeals agreed with the trial court that he could not.

Proof of Causation

Sutton alleged that he experienced a variety of symptoms from taking acetaminophen when he believed he was taking baby aspirin. His proof that Advance Pharmaceutical caused his harm was hampered by his inability to produce the allegedly mislabeled bottle.

Sutton testified that he destroyed the bottles that contained the pills as well as the pills he did not take. The appellate opinion does not explain how Sutton hoped to prove that the pills he took were manufactured by Advance Pharmaceutical or that the pill bottle (assuming it came from Advance Pharmaceutical) was mislabeled.

The trial court determined that Sutton’s documentary evidence was unverified by a records custodian. The appellate opinion does not make the nature of the records clear, but the court agreed that the records failed to prove he suffered harm caused by the ingestion of acetaminophen.

Lack of Expert Evidence

Sutton admitted that he never saw a doctor for treatment of the symptoms that he attributed to taking mislabeled acetaminophen. Failing to see a doctor allowed him to invoke physician-patient privilege as to his medical records, but it doomed his efforts to prove causation.

Sutton could rely on his own testimony to establish that he took pills he believed to be baby aspirin. He could also rely on his own testimony about the symptoms he experienced after taking the pills. But his own testimony was insufficient to prove that the pills caused those symptoms.

The court of appeals determined that neither Sutton nor his roommate, who would have confirmed that Sutton took the pills, could prove causation. Expert evidence was therefore needed to prove that acetaminophen caused the symptoms Sutton experienced.

The court of appeals concluded that Sutton could testify as a lay witness about his own actions, but his opinion about the cause of the cause of his injuries was speculative. Only a medical expert could give admissible testimony to connect the symptoms Sutton experienced to the acetaminophen he allegedly swallowed.

The decision stands as a reminder that in most cases alleging a physical injury caused by ingestion of a drug, expert medical testimony is needed to prove that the drug caused the injury. Ordinary jurors do not typically understand the potential side effects of taking a common over-the-counter medication. Without an expert witness to educate them, the jury has no basis to determine causation. Plaintiffs who proceed without an expert witness face the risk of a judgment that dismisses their case without a trial.

Court Dismisses Product Case Based on Failure to Offer Expert Testimony

Johnson & Johnson has won and lost cases alleging that it markets talc-based products, including baby powder, that cause cancer. The lawsuits typically rely on expert evidence that the talc used to manufacture those products is contaminated with asbestos, a known carcinogen.

The company insists that nothing in its products is carcinogenic, a claim that was undermined by the FDA’s recent confirmation of asbestos in a bottle of J&J baby powder purchased online. That testing prompted J&J to recall a single lot of its baby powder. The testing also triggered a vigorous effort by J&J to discredit the FDA’s findings. The FDA stands behind its test results.

Relying largely on documents produced by J&J, Ann Gibbons contended that she was exposed to asbestos when she used Shower-to-Shower and Johnson’s Baby Powder. Gibbons developed mesothelioma. Asbestos exposure is the only known cause of that disease. J&J contends that her husband worked in construction and that he may have exposed her to asbestos fibers as a result of his employment.

Gibbons sued J&J for causing her mesothelioma. The California Court of Appeals affirmed a trial court decision to grant summary judgment in J&J’s favor. The question on appeal was whether Gibbons’ failure to present expert evidence was fatal to her claim.

J&J Documents

The company’s credibility has been damaged by stunning evidence that it knew for decades about the risks posed by talc contamination, but hid that information from regulators and the public. Reuters also uncovered evidence that J&J funded research that was designed to discount the risk of asbestos contamination in its products, while carefully avoiding research that might have documented asbestos contamination.

Nobody claims that every bottle of talc-based products is contaminated by asbestos, but tests showing some bottles from a particular lot to be uncontaminated do not mean that other bottles are free of asbestos contamination. Unfortunately, only a small fraction of marketed products containing talc are ever tested for asbestos contamination.

J&J’s Expert

Ann Gibbons used Shower-to-Shower and Johnson’s Baby Powder for two decades. She sued Johnson & Johnson on the theory that those products caused her mesothelioma.

J&J moved for summary judgment. It submitted an expert opinion that its products were free from asbestos contamination and for that reason could not have caused her disease.

J&J’s expert, Matthew Sanchez, is a geologist. His declaration described his expertise in testing talc and identifying asbestos. He suggested that some minerals are easily misidentified as asbestos. Based on his review of J&J’s testing and various other research, he concluded that the talc sourced from the Vermont mines that produced the products used by Gibbons were asbestos-free. He also concluded that the geology of the mines was “not favorable for the formation of asbestos.”

Gibbons’ Opposition to Summary Judgment

Gibbons presented no expert testimony to counter Sanchez. Since experts have testified in successful lawsuits that allege contamination of J&J products by asbestos, the failure to use expert testimony in Gibbons’ case is surprising.

Gibbons instead relied solely on the declaration of her lawyer, who attached hundreds of pages of exhibits. Most of the exhibits were documents created by J&J. Some of the documents addressed asbestos in different mines or were created before Gibbons began using J&J talc products.

Gibbons made no challenge to Sanchez’ qualifications. Nor, for the most part, did she challenge the methodology that supported his opinions.

Trial Court Ruling

Sanchez’ opinion that the talc products used by Gibbons were not contaminated by asbestos created a defense to Gibbons’ lawsuit. The trial court concluded that Gibbons could not overcome that defense because she failed to challenge Sanchez’ opinion with expert testimony.

The trial court concluded that documents alone would not allow a jury to draw an inference that Gibbons used J&J products that were contaminated by asbestos. At the very least, an expert was needed to interpret the documents and to explain why they supported her claim and refuted Sanchez’ opinion.

Gibbons moved for reconsideration. In support of that motion, she offered new evidence of a geologist who reviewed recently acquired data from the U.S. Geological Survey. The geologist concluded that asbestos was likely present in the Vermont mines. The trial court denied the motion and granted summary judgment to J&J.

Appellate Court Ruling

The California Court of Appeals rejected Gibbons’ argument that Sanchez relied on inadmissible hearsay. While a party cannot rely on hearsay to prove its case, an expert can identify the source of the expert’s opinion, even if that source is hearsay. A party cannot have an expert quote hearsay documents in order to defeat the hearsay rule, but Sanchez merely identified the documents that provided a basis for his opinion.

Under California law, when a party makes a prima facie showing that no facts supporting a judgment are in dispute, the burden shifts to the opposing party to present evidence showing that material facts are disputed. The Sanchez declaration was sufficient to shift the burden, since his opinion that J&J’s products were asbestos-free would, if uncontradicted by other evidence, entitle J&J to summary judgment.

With the ball in her court, Gibbons was required to introduce evidence that her use of J&J products exposed her to asbestos and that the exposure caused her mesothelioma. The fact that she has mesothelioma is strong evidence that she was exposed to asbestos, and her testimony was sufficient to establish her use of J&J products containing talc.

Whether J&J’s products were contaminated with asbestos, on the other hand, could not be proved without expert testimony. Unlike products that are intentionally manufactured with asbestos, J&J’s products are not formulated to include asbestos. While talc and asbestos deposits are often found in proximity, talc is not inevitably contaminated with asbestos whenever it is mined.

The court cited an appellate decision that reversed summary judgment for a cosmetic company because the plaintiff presented expert evidence that its talcum powder contained asbestos. While the company offered expert evidence that its product was asbestos-free, an expert geologist confirmed the presence of asbestos in the mines that produced the company’s talc and in the products themselves. Gibbons relied on no comparable expert testimony

While Gibbons relied on documents produced by J&J that arguably support her position, the appellate court determined that those documents are “highly technical.” Without expert assistance, a jury could not be expected to understand the significance of findings that might support her case or to place those findings in context. Accordingly, in the absence of expert evidence to dispute Sanchez’ expert opinions, Gibbons could not meet her burden of proving that she used J&J products that were contaminated with asbestos. Summary judgment for J&J was therefore affirmed.

 

Employment Damages: Sometimes Plaintiff Loses

Sometimes, the facts support an opinion of no damages, as I recently testified in a state court which largely agreed with me. What happened?

This was a dispute between an employee and former employer with multiple causes of action. Having left the company after working 6 years, the plaintiff ended up suing the company for past and future wages.

I considered two issues:

  1. How long it would take such a person to find a job and, once found
  2. How that job would compare with their past job as per pay.

These questions were addressed with pooled Displaced Worker Survey data from 2008, 2010, and 2012 and appropriate econometric methods controlling for economic conditions, age, education, location, industry and occupation of plaintiff.

I also considered extent of wage loss due to skill erosion associated with plaintiff voluntarily being out of the labor force for 2.3 years, an application of human capital model with Current Population Survey data. Because defendant kept open the plaintiff’s prior position at a wage 25% above that which plaintiff could find after 50 weeks of searching, my opinion was no damages.

Litigation is risky. In this instance I was retained by defense counsel, but my opinion would have been the same if I’d worked for the other side.

Prudent Corporate Governance: A Board’s Dilemma

This article discusses the roles and duties regarding the effective and steady stewardship of a board of directors, including management of workflow information.

The following questions should be asked (or demanded) by each board member from their organization:

  1. Ask for a written meeting agenda
  2. Study the agenda
  3. Ask for accurate and timely financial information
  4. Ask questions and request timely answers
  5. Strive for perfect attendance from all directors
  6. Dissent where warranted
  7. Call for recorded votes
  8. Demand accurate and timely minutes for all board and committee meetings
  9. Demand independent investigations when needed
  10. Blow whistles when warranted.

As everyone knows, managing an organization is not an easy undertaking. Successful companies employ a continuous process that addresses and acknowledges a constant flow of information. The primary focus of both the board and corporate management is to identify problems before they seriously constrict and assault the overall condition of their company. A recent case illustrates this. The company had been in business for over 35 years and for most of those years it operated in a prudent manner and was successful from a financial perspective. However, in recent years the company started experiencing liquidity problems,  causing operational problems. These issues had a damaging impact on the company’s relationship with its consortium of banks.

The management team and board of directors chalked up little credibility with its bankers as evidenced by a placement of a series of forbearance agreements. These agreements placed certain restrictions on the company’s operations, including oversight by an independent advisor. Instead of working with the banks in an attempt to deal with the swirling financial issues, the company’s management and shareholder resisted efforts to resolve the company’s financial (liquidity) problems. Rather than working on the development of a strategy on the company’s long term survival, the board and management served as impediments to resolving the problems.

Any constructive efforts made by the management team to resolve the company’s problems were  stonewalled by the following issues:

  • The shareholder had complete control of the board – three members of the board were insiders that worked for the company and three of the four outside directors were family members of the shareholder.
  • As a result of this structure, the shareholder had total control which resulted in a lack of independence on the part of the board.
  • The lack of adequate financial controls resulted in a forensic audit that revealed the owner had several million dollars of personal expenses that could not be substantiated as legitimate business expenses.
  • The lack of prudent oversight and financial controls  resulted in the following :

    • Resignation of all the inside directors
    • Resignation of the company’s CFO due to potential liability regarding the quality of the company’s financial information
    • Resignation of the company’s independent auditors based on a question regarding the “going concern” concept.

Conclusion: Effective and serious stewardship  as a director requires the board to have the courage to exercise savvy judgment independent of management. These types of issues will remain in the spotlight of public accountability with corporate governance failings and oversight issues leading to litigation and often will serve as a subject for a Wall Street Journal page-one article or Bloomberg online analysis.

With the threat of harm to reputation, costs of remedial action(s) required along with possible significant fines,  an astute board cannot afford to make bonehead decisions. As new risks emerge and  breed, success increasingly relies on the board to see the crises coming, to demand and evaluate the information needed to make critical business decisions and then, armed with that information, have the courage to carry through.

Expert Payment

Pay Your Expert If You Want Supporting Testimony

When challenging the IRS over the value of a Decedent’s share of an LLC, trustees of the Estate smartly used a valuation expert witness, only to fall short because they failed to submit payment necessary for the expert to testify at trial.  In a story from FMV Opinions, Inc. Lance Hall, the managing director of FMV Opinions, Inc, the Estate of Diane Tanenblatt provides a cautionary tale to parties who think they can use an expert witness report without accompanying testimony during trial.

The Estate of Diane Tanenblatt Challenges the IRS

When submitting a value of an estate to the IRS for tax purposes, the trustees of the Tanenblatt Estate hired an independent expert witness to review the IRS valuation.  The IRS submitted a value of the Estate based on a “Net Asset Value” calculation to derive the value of the Decedent’s share in an LLC.  The Net Asset Value approach, which considers only the assets and liabilities of an estate, arrived at a value that the IRS used to assess its estate tax.

The Estate, unsatisfied with the IRS value, hired an independent valuation expert witness.  The Estate’s expert witness combined a Net Asset Value approach with an Income approach – which factored in the income associated with Tanenblatt’s share of the LLC – and arrived at a value 42% below the number the IRS calculated.  The lower value would, of course, lower the amount of the estate subject to IRS estate tax.

The Estate expert witness’s use of the income approach in addition to the Net Asset Value approach is uncommon when valuing shares of LLC’s or corporations, and in order to withstand the IRS challenge to the new value, the Estate needed its expert witness to testify in trial.  The Estate neglected to submit full payment to its expert, however, and was unable to substantiate her claims without her testimony at trial.  As a result, the IRS value was accepted and the Estate’s use of an expert witness to generate a report was ultimately for naught.

How the Estate Properly Used Its Expert Witness

Before looking at what the Estate did wrong in this case, it is worth noting that there were some positive decisions.  First, hiring an independent expert to challenge a tax valuation can have a positive impact on any person who is facing estate tax on an inheritance, real estate tax on his property, or any other tax on possessions or property.  The IRS – or any local or state tax agency – can be challenged, but doing so requires the use of a valuation expert witness to do a complete analysis of the property, assets, or other financial holdings.

The Estate was also smart to have its valuation expert witness generate a complete report that explained her methodology and defended her value of the Decedent’s share of the LLC.  Although an expert witness will need to be present at trial, it is important that parties have the expert provide a clear report that explains her qualifications, details her analysis of the facts, the methods used to come to her conclusion, and the support needed to defend her position.  An expert witness report can be crucial to building a case – whether it is for a tax valuation, a medical malpractice suit, or a personal injury claim.

Why the Estate Failed

Despite making good use of a valuation expert witness before the trial, the Estate was ultimately unsuccessful because it failed to pay its expert in time for the trial.  An expert witness report cannot be properly used at trial without the testimony of the expert.  In order for the work that an expert witness does before the trial to have impact during the trial, the expert must be there to explain her work and defend it against the opposing party.

In this case, the expert witness’s testimony was particularly necessary because the Estate was suggesting a unique valuation technique – something that needed to be explained and defended against IRS challenge.  The Estate’s failure to pay its expert witness serves as a cautionary tale to any party considering the use of an expert to support his case.  When hiring an expert witness, it is important to know the full cost – including what it will take to have the expert testify.  Without testimony, an expert witness report is likely not admissible during trial, and without adequate payment, the expert will not agree to testify despite work previously completed.

(The above summary of an FMV Alert is published with the permission of FMV Opinions, Inc. The full article can be accessed here.)

"Hot Tubbing" Expert Witnesses

“Hot Tubbing” Expert Witnesses

As experts we are all familiar with the process for presenting expert testimony in the American judicial system. The plaintiff or prosecution typically calls its expert to testify as part of its case, and after the expert has concluded testifying on direct examination, been cross-examined, and perhaps then been subject to re-direct, the expert goes home. When the defense presents its case it calls its expert, and that often happens days or weeks later. The experts never engage in a dialogue, or respond to the other’s comments in real time, or even have a face-to-face debate on the relevant issues. While experts may be recalled to the stand later in the trial, that is relatively unusual. Only in high-stakes cases might both parties’ experts be in the same courtroom for the entire trial, and even then each of the experts only testifies in his or her turn. The trier of the fact, often a jury of lay persons, then must decide which of the experts it believes to be more credible, without having had the opportunity to have each expert explain why he or she agrees or disagrees with what the other expert has testified to.

For years Australian courts have successfully used another approach. In the Australian approach both sides’ experts often appear in court at the same time and are primarily questioned by the judge. Each expert can immediately comment on the statements made by the other expert. In many ways the process resembles an election campaign debate where the moderator asks both candidates questions, and each must quickly respond to the other’s comments. In the hands of a skilled questioner it can be made clear to the trier of fact those points that both experts agree upon, which points they disagree upon, and why, with the reasons for each expert’s positions made clear right away. The jury would still make the determination.

This practice known as “witness conferencing” (and sometimes referred to as “hot tubbing”) also has been successfully used in international arbitrations as well as courts in England earlier this year. Its use in the United States — whether by stipulation of the parties or as part of a court-ordered experiment — may only be a matter of time.

How would hot-tubbing impact experts? Rather than merely respond to a set of largely rehearsed questions on direct examination, and then parry the other side’s questions later in cross, hot-tubbing would put a premium on the expert’s knowledge and presentation skills. Quick-thinking and the ability to pro-actively make balanced, clear and persuasive statements would be critical throughout the course of a trial. The expert would also have to have a more in depth knowledge of the subject matter, as the persons asking the questions are not only lawyers (who may not be particularly knowledgeable about technical details) but also an opposing expert sitting in the same “hot-tub.”

For more details see http://economia.icaew.com/opinion/july-2013/a-new-approach-for-expert-witnesses

Expert CV Checklist

The Expert CV Checklist – Update

In my earlier article, “The Expert CV Checklist,” I recommended that you not list extensive information about your legal consulting.  I would, however, recommend that in addition to using deliberately bland terms like “litigation support” or “legal consulting,” you use the term “expert witness” at least once in describing your current work.  Even though I prefer not to publish my clients’ CV’s on their websites or in their directory listings, an expert CV can find its way to the Internet and it is good for optimization to have that key term, “expert witness,”  there in the context of the expert’s area of expertise.