Category Archives: Working with Experts

Pennsylvania Justice

Use of Treatise to Cross-Examine Medical Witnesses Leads to Reversal of Malpractice Verdict

A Pennsylvania jury that weighed competing expert testimony awarded more than $40 million to a disabled child after deciding that the disability was caused by medical negligence. The Superior Court of Pennsylvania reversed the judgment and ordered a new trial because a learned treatise was used improperly to cross-examine defense witnesses.

Facts of the Case

Kira Charlton was pregnant with twins. Prenatal testing revealed an abnormally rapid heartbeat (tachycardia) in one twin. That twin was significantly smaller than the other. Charlton’s OB-GYN decided to induce labor.

About 20 hours after labor was induced, Dr. Steven Troy decided that Charlton was ready to give birth. He delivered the first twin without complication. Although an ultrasound taken eight hours earlier showed both babies in the head-down position, Dr. Troy discovered that the second twin was in the feet-down position.

As the second baby’s head and shoulders were being delivered, everyone in the delivery room heard a “popping” sound. The primary labor and delivery nurse testified that she was concerned Charlton may have suffered a hip or back injury, but she saw nothing abnormal about Charlton. Nor did she see Dr. Troy maneuvering the baby in any way at the time she heard the sound.

After he delivered the second twin, Dr. Troy noted that she had poor tone in her head, neck, and limbs. The baby was taken to neonatal intensive care because of concern that the baby had suffered a spinal cord injury. The baby was then transferred to Children’s Hospital for an MRI. The MRI revealed “no definite abnormality,” but the interpretation was qualified by the remark that the baby’s positioning was not optimal.

An MRI taken eight months later confirmed the existence of a nerve root avulsion injury. The injury caused permanent damage to the spinal cord.

Charlton and her husband sued Dr. Troy and related parties. They alleged that Dr. Troy’s negligence during the delivery caused the baby’s disability. Dr. Troy contended that the injury was caused by placental insufficiency while the baby was still in the womb. Placental insufficiency is a condition that describes the inability of the placenta to deliver an adequate supply of nutrients and oxygen to the fetus.

Plaintiffs’ Expert Testimony

The Charltons called Dr. Benjamin Hamar, an expert in maternal-fetal medicine, to establish the standard of care that Dr. Troy should have followed. Dr. Troy testified that when a fetus is in the feet-down position, the physician should perform an ultrasound to determine whether the head is in a flexed position. The chin of a fetus in the flexed position will be tucked into the chest.

Dr. Hamar testified that the standard of care permits the vaginal delivery of a baby whose head is in the flexed position, but requires constant use of an ultrasound to assure that the head remains in that position. If the head is extended backward (deflexed) or is straight (hyperextended), the standard of care calls for delivery by caesarean section.

Dr. Hamar regarded Dr. Troy’s failure to conduct an initial ultrasound and to monitor the delivery using an ultrasound to be a breach of the standard of care. Dr. Hamar rejected the theory that the baby was harmed by placental insufficiency because the second baby’s birth weight was not 25% less than the first baby’s, because amniotic fluid was not low, and because a Doppler assessment of the umbilical cord did not indicate a growth restriction.

The Charltons also offered the testimony of Dr. Robert Clancy, a pediatric neurologist, who testified that the location of the spinal cord injury was a classic sign of hyperextension during delivery. A pediatric neurologist, Dr. Paul Caruso, testified that the spinal cord injury was caused by a pulling motion that tore the nerve roots. Dr. Caruso also testified that the injury was not congenital and that no medical literature supported the claim that the condition could occur prior to delivery.

A placental pathologist, Dr. Theresa Boyd, testified that the twins’ placental compartments were normal and that the umbilical cord showed no sign of abnormality. The baby’s treating surgeon testified that the spinal cord injury was caused by trauma and is an irreparable, permanent injury.

Defense Expert Testimony

Dr. Robert Debbs, an expert in maternal-fetal medicine and the use of ultrasound in obstetrics, testified that an ultrasound may be helpful if the baby’s position is unknown, but it was known that the second baby was in the feet-down position. In Dr. Debbs’ opinion, the standard of care did not require a physician to determine whether the baby’s head was deflexed or hyperextended.

Dr. Debbs also disagreed that a cesarean section would have been safer than a vaginal delivery. In Dr. Debbs’ view, a vaginal delivery of a twin in the feet-down position is safe if the first delivery was not difficult and if the second baby is not 25% larger than the first.

The smooth delivery of the second twin was, in Dr. Debbs’ view, evidence that Dr. Troy kept the head in the flexed position. He also concluded that the popping sound did not come from the baby, an opinion that is difficult to credit since Dr. Debbs was not present at the delivery, did not hear the sound, and was not in a position to identify another source of the sound.

Michelle Grimm, an expert in biomechanical engineering, testified that “maternal forces” during pregnancy could cause root avulsions. Dr. Jerome Barakos, a pediatric neurologist, testified that the MRI taken after the baby’s birth showed scarring and cysts on the baby’s spinal cord that would have taken weeks to form. Dr. David Schwarz, a placental pathology expert, testified that volume of the placenta supporting the second twin was very small and that the baby suffered from an intrauterine growth restriction due to insufficient supplies of blood and oxygen.

Sufficiency of Evidence

The jury found that Dr. Troy breached the standard of care and that the breach harmed the twin. The jury awarded more than $40 million to provide a lifetime of care for the disabled child.

The question on appeal was whether the evidence was sufficient to support the verdict. Since it is the jury’s function to evaluate expert evidence, most appellate challenges to the sufficiency of evidence fail if there is any evidence that could support the verdict.

The appellate court decided that the verdict was based on one of two mutually exclusive theories of liability. First, that Dr. Troy was negligent in not performing an ultrasound during the birth. Second, that Dr. Troy pulled the baby with too much force, causing the nerve root injury.

The court concluded that a jury could reasonably find from the expert evidence that the standard of care required Dr. Troy to use an ultrasound while delivering the second twin. The court expressed concern, however, that “back door” evidence suggested that Dr. Troy may have caused the baby’s injury by using too much traction during delivery.

No expert testimony was presented regarding the standard of care governing the use of traction in delivering a second twin who is in the foot-down position. The Superior Court decided that the trial court erred by allowing the jury to consider the excessive traction theory as a cause of the baby’s injury.

Precedent prevented the court from reversing the verdict based on the erroneous submission of the excessive traction theory to the jury. Dr. Troy did not ask for a verdict form that would have allowed the jury to make separate decisions about the two theories of liability. In the absence of that request, a verdict that is permitted by one theory must be affirmed even if the verdict could not be sustained on the alternative theory.

Admission of Learned Treatise

Perhaps to save Dr. Troy from a verdict that might have been based on a theory it regarded as unsupported by expert testimony, the Superior Court concluded that the Charltons’ reliance on a learned treatise required a new trial. A “learned treatise” is publication that experts in the field generally regard as authoritative.

In Pennsylvania, admitting a learned treatise as substantive evidence would violate the rule against hearsay. Experts may nevertheless testify that a learned treatise informed their opinions. Under certain circumstances, a learned treatise may also be used to impeach an expert’s opinion.

The Charltons cross-examined Dr. Troy and defense experts with Dr. Volpe’s textbook, Neurology of the Newborn. The text associates a “snapping” or “popping” sound during delivery with a tearing of the dura, a membrane covering the brain and spinal cord.

Dr. Clancy testified that Dr. Volpe’s textbook is a “classic textbook of child neurology” that collects “child neurology wisdom about newborns.” Dr. Clancy agreed with the text that a popping sound is the sound of something tearing.

On cross-examination, Dr. Troy testified that he was unaware of any obstetrical literature identifying a popping as the sound of a dura tearing. The Superior Court held that it was improper to impeach Dr. Troy with the Volpe text because it is “neurological literature,” not “obstetrical literature.”

The trial court concluded that a book about delivering babies is “obstetrical literature” even if it is written by a neurologist. The court thought the distinction that Dr. Troy drew was disingenuous, since obstetricians cannot ignore the risk of neurological harms when they deliver babies. The Superior Court thought otherwise.

The Superior Court also concluded that Dr. Troy testified as a fact witness, not an expert witness, and that his opinions were therefore not properly impeached with a learned treatise. The Superior Court rejected the trial court’s conclusion that Dr. Troy “was introduced, groomed, and treated as a causation expert.”

Since the trial court supported its evidentiary decision by sound reasoning, a good argument can be made that the trial court did not abuse its discretion in permitting reference to the learned treatise. A cynic might wonder whether the Superior Court found a “back door” way to give Dr. Troy a new trial based on its conclusion that the “excessive traction” theory of liability should not have been submitted to the jury.

 

Expert Testimony Not Needed to Prove Hurricane Damage

The Eleventh Circuit Court of Appeals has overturned a district court and ruled that an expert witness is not required to prove hurricane damage in Georgia.

The Damage to the Church

In March 2016, Southern Mutual Southern Mutual Church Insurance Company issued an insurance policy to Greater Hall Temple Church of God in Brunswick, Georgia. The policy covered “direct physical loss to covered property” if the loss is “caused by a covered peril.” The policy did not cover losses caused by water or loss to the interior of buildings caused by rain, unless the rain enters through an opening made by a “specified peril.” The policy defined specified perils to include windstorms.

In October 2016, Hurricane Matthew hit Georgia. Following the hurricane, the roof of the Greater Hall Temple Church of God in Brunswick, Georgia was damaged. Greater Hall submitted a claim for $15 million in damages with its insurer, Southern Mutual.

Southern Mutual retained an independent field adjuster, Alan Taylor, to inspect the damages. Taylor determined that the damage to the church was not caused by wind; it was caused by pre-existing structural issues. Southern Mutual denied the claim.

District Court

Greater Hall filed a lawsuit against Southern Mutual in district court, arguing that Southern Mutual had violated the terms of the insurance agreement for failing to pay for its claims.

Greater Hall retained three experts to testify on its behalf: John Kern, Shawn Brown, and Alfred Teston. The court refused to allow each of these witnesses to present expert testimony. One proposed expert was a civil engineer who had little experience with the type of metal roof that had been installed on the church. Another proposed expert had put in a bid to repair the roof damage, but had little knowledge about the roof’s prior condition and no experience in determining the causes of roof damage. The third expert was a contractor who had installed the roof, but the church did not disclose the subject of his testimony until after the discovery deadline.

Southern Mutual presented experts who testified that the water damage to the interior of the church was caused by “improper flashing” that diverted rainfall through the building’s HVAC system. They also presented evidence that the church’s roof had leaked prior to the hurricane.

Southern Mutual filed a motion for summary judgment and the district court granted it. Greater Hall appealed.

Eleventh Circuit

On appeal, the Eleventh Circuit agreed with the district court’s decision not to admit the proposed expert testimony of Kern and Brown because neither had the requisite experience or had used a sufficiently reliable methodology to formulate their opinions. The court of appeals also agreed that the district court had not erred by excluding Teston’s expert testimony for untimeliness.

However, the Eleventh Circuit disagreed with the district court’s decision to grant summary judgment in the insurer’s favor. The district court had granted summary judgment because “proving causation requires expert testimony,” all of Greater Hall’s expert testimony had been excluded, and Greater Hall could not rebut Southern Mutual’s expert report that suggested the damage to the building was caused by poor workmanship.

The Eleventh Circuit ruled that, under Georgia law, expert testimony is not necessarily required to prove causation in an insurance contract — a plaintiff may satisfy its burden with lay testimony. Accordingly, the court ruled that Greater Hall’s case survived summary judgment because it was possible for a reasonable jury to find in its favor.

Photo by NASA on Unsplash

A judge

Court’s Choice Between Competing Expert Opinions on Standard of Nursing Care Is Affirmed on Appeal

Rachel Howard, the widow of C.R. Howard, brought a claim against the government for medical malpractice committed in a Veteran’s Administration hospital. She alleged that nurses failed to prevent her husband from falling while using a commode. It was undisputed that the fall caused a cervical fracture.

Since the case arose in Arkansas, the Arkansas Medical Malpractice Act governed the substantive proof of malpractice. The district court, deciding the case without a jury, evaluated the competing testimony given by expert witnesses concerning the standard of care that the nurses should have followed. The court ultimately found that the evidence did not establish malpractice. The Court of Appeals for the Eighth Circuit affirmed that decision.

Patient’s Hospital Care

Four years before his death, C.R. Howard was diagnosed with blood cancer. By 2015, his treating hematologist concluded that Howard had exhausted his treatment options.

In February 2015, Howard was admitted to the John L. McClellan Memorial Veterans Hospital in Little Rock to treat neutropenic fever. Following hospital protocols, medical staff assessed Howard as having a high risk of falling. The protocols required high risk patients to receive assistance while using the bathroom.

Howard walked to the bathroom at least twice without assistance. He fell at least once. Medical staff noted that Howard suffered from episodes of dizziness or confusion. Staff entered an order requiring him to use a bedside commode.

Five days after his admission, Howard attempted to use the bedside commode. He sat up in the bed and a nurse asked him if he was ready to stand. The nurse assisted him as he moved to the commode. While Howard was sitting on the commode, he “folded over” and fell to the floor, striking his head.

Because Howard did not appear to be breathing, one nurse administered CPR while another called for a code team. The code team used a defibrillator to restart Howard’s heart and placed him on a ventilator. He was transferred to intensive care.

The next day, Howard was removed from the ventilator. An MRI found a spinal fracture in his neck. He had surgery to repair the fracture four days after he fell. The surgery improved his ability to move, but his underlying medical condition precluded physical rehabilitation.

Howard was discharged from the hospital about three weeks after his admission. He entered home hospice care and died about two weeks later.

Expert Witness Testimony

The two nurses who assisted Howard testified that he did not appear to be dizzy before he was transferred to the commode. Rachel Howard, who was present at the time, testified that he was displaying signs of dizziness.

The parties also offered conflicting evidence about the appropriate standard of care. Howard’s nursing expert, Janet Scott, testified that the standard of care required nurses to keep Howard in bed if he was dizzy. She also testified that the standard of care required his nurses to stand in front of Howard and to place a hand on him while he was using the commode.

Howard’s physician expert, Dr. Thomas Huffman, testified about his experience managing nurses. He opined that placing a hand on the patient is the best way to maintain control over a patient who is using a commode. Dr. Huffman concluded that the nurses were not close enough to catch Howard before he fell. Dr. Huffman was also one of the plaintiff’s experts on causation.

The government relied on the expert testimony of Holly Langster to establish the nursing standard of care. Langster emphasized the need to respect the patient’s dignity by providing as much privacy as possible. She testified that a nurse should have hands on a patient like Howard until he was seated and then stand in front and within arm’s length of the patient.

District Court Decision

The district court noted that expert testimony is needed to determine a nursing standard of care because it is not a matter of common knowledge. The court decided that Scott and Langster were both qualified to express an opinion about the standard of care.

The court gave more weight to the expert opinion of the two nursing experts than to the opinion of Dr. Huffman. While Dr. Huffman has managed nurses during his career, he “did not demonstrate that he was familiar with the degree of skill and learning ordinarily possessed and used by nurses and hospital staff in good standing, engaged in the same type of practice or specialty in Little Rock, Arkansas, or in a similar locality, as is required under the Arkansas Medical Malpractice Act.”

The court was satisfied that Howard sustained a “medical injury,” as that term is used in Arkansas law, when he fell while using a commode under the supervision of nurses in a hospital. The court was not satisfied, however, that the nurses committed malpractice.

The court concluded that the appropriate standard of care depended on whether Howard was dizzy. Scott’s opinion was based on Rachel Howard’s testimony that, as soon as the nurse entered, Howard tried to sit up, then fell back down and complained that he felt like an ocean was going by. The nurse testified that Howard did not fall back on the bed and never complained of dizziness.

The court credited the testimony of the nurse rather than Rachel Howard’s testimony. The court concluded that the standard of care for a dizzy patient, as Scott described it, was therefore inapplicable. Since Howard was not dizzy, the standard of care described by Langster was appropriate. Since the nurses followed that standard of care, they did not commit malpractice.

Appellate Opinion

Medical malpractice claims against a VA Hospital are brought under the Federal Tort Claims Act. That law requires the trial to be held before a judge, not a jury.

Unless an appellate court dislikes a district court’s result and needs an excuse to overturn it, a district court judge’s assessment of the facts is virtually unassailable. The court of appeals found no reason to overturn the trial court’s finding that Howard was not dizzy when he tried to sit up.

It was also up to the trial judge to determine the appropriate standard of care. Since the judge decided that Howard was not dizzy, the judge did not err in discounting Scott’s testimony, which was premised on the opinion that a careful nurse will keep a hand on a dizzy patient who uses a commode.

A jury might have seen the facts differently. Allowing a patient to fall to the floor does not seem consistent with appropriate care, particularly when the patient has fallen in the past. However, the judge believed the nurses when they testified that Howard was not dizzy and he believed the defense experts when they testified that the nurses followed an appropriate standard of care. Deciding which witnesses to believe is the trial judge’s job when there is no jury.

The court of appeals suggested that even in the absence of a dispute about Howard’s dizziness, the district court could have accepted Langster’s expert opinion that standing within an arm’s length of a patient on a commode is an acceptable standard of care. It hardly benefits a patient to stand in front of the patient while allowing the patient to fall, but again, when there is no jury to decide the facts, a judge gets to make that call. Since the district court was entitled to choose between competing expert opinions, the court did not err in deciding the case in favor of the VA Hospital.

Man on a computer

How Should an Expert Prepare for an Online (e.g. ZOOM) Deposition?

During the pandemic, many things that can be done remotely are in fact being done remotely: those whose jobs allow it are working at home; we interact with our friends and family online; and motion hearings are often being done remotely. Expert witness depositions are also being taken remotely.. There are a number of upsides to this, beyond decreasing potential exposure to the Covid-19 virus: for example, saving the time and travel costs associated with bringing an expert to an in-person deposition or opening up the universe of potential experts by increasing the ability to tap others who are less local.

But there are also challenges associated with online depositions. Some are for the attorney, not the expert, such as coordinating with the court reporter to make sure everything will be properly recorded. For the expert, there are plenty of things the expert should do to prepare for the deposition.

Technical & General Preparation

First, the expert should find out what software will be used for the deposition, make sure it’s downloaded ahead of time, and test the system— including the computer’s camera, microphone, and speakers — well in advance. Frantically trying to download and install the software when its “go” time does not engender confidence in your client or his or her attorney — and will not make the other side take you seriously.

Second, the expert should double check what will be in his or her background during the deposition and “stage” the setting appropriately. It may be helpful to have diplomas, technical certifications or licenses, treatises, and perhaps some tasteful and unobjectionable artwork as background. Don’t have children’s artwork, stuffed animals, the trashy novels the expert reads during his or her downtime, or anything controversial or political in view. The background framing the expert should look as professional as would the inside of the law firm conference room where in-person depositions are typically taken.

Related to this: the attorney taking the deposition may — and can — ask the expert to pan the camera around the room to make sure there is no one there feeding the expert cues or responses. Make sure the entire room is a suitable backdrop for a deposition.

Third: dress to impress. Yes, we all know that Zoom conference dress codes are generally laxer than in-person dress codes … but a deposition is the exception that proves the rule. Treat it as what it effectively is: a remote court hearing. After all, the video may be played in court — the expert should not wear anything he or she would not want a judge or jury to see him or her in. And yes — that includes work pants (or skirt) and work shoes: the expert should not assume that it’s enough to wear a dress shirt and blazer, since at some point, he or she may stand up or back-up or otherwise bring what’s below the waist into view.

Coffee or water — leaving the field of view of an online deposition presents issues that getting up from your chair in an in-person deposition does not. For example: did you get up so you could call, text, or email someone off camera, to get guidance as to how to answer? It is better to minimize, to the greatest degree possible, having to get up and break the online deposition. You can’t control bathroom breaks, but you can minimize breaks for water, coffee, or granola/energy bars: lay the refreshments out ahead of time, if you can.

Logistical Preparation — Exhibits

It’s always best practice for the expert, the attorney for the expert’s client, opposing counsel, and the court reporters to always have their own pre-marked set of exhibits. (Always pre-mark exhibits: it saves time and cuts down on confusion.) But in an in-person deposition, a failure to do so is of less moment: the parties can share exhibits on the spot, then provide extra copies later, as needed. However, that’s clearly not an option during a remote deposition, where you might have people in four, five, or more locations (e.g. the expert, the attorneys on each side, any litigants attending the deposition, and the court reporter may all be appearing from their own homes or offices); everyone needs to have their own copy in advance.

The real responsibility for marking and forwarding exhibits this rests principally on the attorney taking the deposition, but the expert should at least contact the attorney representing his or her client to make sure that copies of any exhibits are forwarded to him or her … after all, everyone is working outside their comfort zone during the pandemic and things drop in the cracks, so to speak. By checking to make sure that he or she has copies in advance of anything he or she will be questioned about, the expert can help make sure the deposition is fruitful and not a waste of anyone’s time — and if the proper exhibits are not provided to the expert, at least he or she can truthfully say that they tried and therefore are not responsible for any lapses.

Similarly, if there are materials that the expert is asked to bring, such as any treatises that he or she relied upon in coming to an expert opinion, the expert should either copy and provide shorter materials (they can be provided to the attorney representing the expert’s client, who then will circulate them) or at least provide — well in advance — the citations for any longer works, so that anyone who wants to have a copy during the deposition has the chance to obtain them.

And then there are demonstrative exhibits which are things which are not evidence in and of themselves, but illustrate key evidentiary points. They are the equivalent of the graphics the nightly news puts up to illustrate important statistics or developments. These always have had to be created in advance … but now the expert may need to create them differently. What looks good in person may NOT look good when viewed on your MacBook Air’s camera. Test the demonstrative exhibits on the video conferencing platform you are using in advance and make sure they work.

Testimonial Preparation

Experts should always review their testimony in advance with the attorney representing their client. Yes, they can’t “script it,” and the expert (and attorney) have a legal and ethical obligation to assure that all testimony is truthful … but all that said, the lawyer and expert should go over in advance what issues the opposition is expected to ask about and some “basics” about testifying — e.g. to pause a moment before answering, in case the lawyer wants to object; to not extrapolate, but only answer the question that is asked; to not be afraid to ask for clarification of an unclear question; etc.

But bear in mind that a Zoom (or the equivalent) deposition will present challenges an in-person deposition does not, such as the possibility of the deposition “freezing” at an inopportune moment or losing connection momentarily. Discuss with the lawyer representing the expert’s client how to deal with those eventualities — does the expert ask for the question to be restated after the interference or break? Does the expert leave a longer-than-normal pause before answering, to make sure the lawyer has time to object? And so forth. Assume there will be connectivity issues at inopportune moments and plan for them, so that the expert and his/her client’s attorney are reading (so to speak) from the same playbook. Do not assume that the lawyer representing your client will always be able to object in real time to problematic questions.

During the Deposition

We’ve alluded to this above, but experience teaches us that Zoom, Microsoft Go To Meeting, and similar software will have problems in practice: internet connections stutter or drop out, there are buffering issues, etc. During all depositions, the deponent — including an expert witness — should not hesitate to ask the examining attorney to restate or repeat a question. But this goes doubly for remote depositions, due to software and connectivity issues. When in doubt, the expert should ask opposing counsel to restate or rephrase his or her question.

In Conclusion

Compare a Zoom call with a friend or family member with talking with that individual face-to-face. You may find it more challenging and less rewarding. There may be parts of the conversation which were not clear or garbled. That’s for an informal, “no stakes” call. Now imagine what it might be like for a formal, high stakes call, such as you will find in a remote deposition. Plan for the inevitable Zoom-related issues in advance.

Fire

Appeals Court Rules Firefighter and Electrician Qualifies as Expert

The Third Circuit Court of Appeals has ruled that a veteran firefighter, licensed master electrician, and forensic expert were qualified to give expert testimony about a Pennsylvania shopping center fire.

The Fire

On December 17, 2012, a fire broke out at Natrona Heights Shopping Plaza in Harrison, Pennsylvania. The fire began at around 9:40 pm and destroyed or damaged twelve businesses. It took almost 300 volunteer firefighters from thirty companies to contain the damage.

James Tanda, the agent in charge of the Pittsburgh office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, estimated that the fire caused “in excess of $10 million” in damages.

The Natrona Heights Shopping Plaza was insured by Seneca Insurance Company, and Seneca paid for the losses resulting from the fire. An investigation revealed that Mark Beal and his company, Mark’s Maintenance and Repair, may have caused the fire when removing a neon sign from the facade of the building. Seneca sued Beal for damages.

The Trial

At trial, Seneca retained three experts to testify on its behalf. The experts were Dennis Brew, an expert in installing and removing neon signs; Gerald Kufta, a private investigator specializing in fires; and Samuel Sero, a forensic engineer. Beal retained Ralph Dolence, a firefighter, fire officer, licensed master electrician, and forensic expert.

Seneca Insurance requested that the Beal’s expert, Ralph Dolence, be disqualified, arguing that his testimony was “speculative and lacked foundation.” The district court denied the motion.

A jury found Beal negligent in removing the sign, but that his acts or omissions did not cause the fire. Seneca filed a motion for a judgment notwithstanding the verdict or a motion for a new trial. The district court denied the motion. Seneca appealed.

The Appeal

On appeal, Seneca argued that the district court erred by allowing Ralph Dolence to testify as an expert. The Third Circuit reviewed the district court’s decision for an abuse of discretion.

In the Third Circuit, an expert’s testimony is admissible if their “methodology and reasoning are sufficiently reliable to allow the fact finder to consider the expert’s opinion.” The Third Circuit determined that Dolence was qualified as an expert witness “because of his knowledge from years of professional experience, which included over 30 years as a fire investigator and 40 years as a licensed electrician. At the time of his testimony, Dolence, a qualified forensic expert in 30 states, had served on arson task forces, investigated over 12,000 fires, and taught hundreds of classes on fire causes and origin investigations.”

The court additionally noted that Dolence’s testimony was “based on, among other things, his personal observations and review of materials from the fire investigation. The foundation of his opinion was an examination of several hundred photographs, videos, and other documentation provided by the township, fire marshal, and individuals who were at the scene of the fire. He also analyzed depositions, documents, and reports provided by appellant’s experts and attended a joint evidence examination with Gerald Kufta and several other experts.”

The court determined that Dolence “ultimately testified that the cause of the fire was ‘undetermined’ because the fire investigation was improper and other causes were not ruled out.” The Third Circuit affirmed the district court’s verdict.

Money

Demonstrative Evidence: A Picture or Chart is Worth a Thousand Words

We’ve all heard the saying, “a picture is worth a thousand worlds.” And most of us are familiar with the idea that there are multiple different modes of learning — that is, that people process information in different ways, and that while there are certainly verbal learners, or people who learn best by reading the written or hearing the spoken word, there are people who learn best in other ways, such as visual learners, who learn best through images or pictures.

These concepts are why demonstrative evidence is your friend in court — it’s a way to empower your expert and leverage the investment your client made in hiring them.

Black’s Law Dictionary online defines demonstrative evidence as “real evidence that doesn’t depend on a testimony as it can be seen by the jury and the court.” Other legal dictionaries and treatises definite it similarly. The key part of this definition is “can be seen by the jury and the court” — that is, it is visual evidence, whether in the form of a photograph, a schematic, a chart or graph, a model, or some other graphic representation. It can be tremendously powerful and can make or break your expert’s testimony.

Here’s the thing about demonstrative evidence: as the very term implies, it “demonstrates” something. It’s NOT fact evidence — you need that separately — but it is a way to illustrate, highlight, or call out what is important. It’s the judicial equivalent of a Powerpoint presentation: a way to emphasize what should be emphasized. That means that while it ultimately needs to tie back to — and be supported by — authenticated documentary or other fact-based evidence, or reliable witness testimony, it can and should take liberties with presentation, so that the point you want to get across is driven home with all the subtlety of a presidential campaign ad.

Judges and Jurors Love Show-and-Tell

Before getting to the practical reasons why demonstrative evidence is valuable, start with a basic concept: judges are human. They are humans who spend six, seven, or eight hours per day listening to people talk, and talk, and talk. They get — to be blunt — bored. Don’t believe it? Think about how long you can listen to strangers jabber on about situations or occurrences you have no personal knowledge of or stake in. For example, think back to the last time you were at a party and were cornered by someone who described their vacation to you practically minute by minute, or by someone who obviously thought their job in risk-assessment or logistics was as fascinating to you as it is to them (or, to be fair, think about the deer-in-headlights look in the eyes of a non-lawyer you cornered at a party and subjected to a blow-by-blow description of your last trial). Bringing out photographs or other graphic evidence will get judges to sit up and take notice in a way that another thousand words of “expert-ese” will not.

And what goes for judges goes doubly for jurors, since they (unlike judges) often have no background, experience, or context to help them understand your expert’s testimony — but they can look out and understand a photograph or simple chart. Bringing out demonstrative evidence can help prevent jurors’ eyes from glazing over, which is critical, because if they tune your expert out, why even bother having the evidence in the first place.

Your expert simply can’t get his or her point across if no one is listening to him or her. Since  by the time you get to your expert, the court has typically been subjected to opening statements and a parade of fact witnesses to set the context, the judge and jurors have already used up most up of their attention span. Have mercy on them and make it easy for your expert: have the expert create and use demonstrative evidence.

Photographs: Show, Don’t Tell, What Something Looks Like

Many cases involve something’s appearance. It could be the condition of a car after an accident. It could be the contusions on the victim of domestic violence. It could be the damage to a building after a fire, or the shape a rental property is in after the tenant has moved out, or the condition of a poorly maintained staircase or walkway, etc. This is the easy and obvious case for the use of demonstrative evidence: instead of having your expert just narrate the situation (e.g. “the fire caused extensive charring to the fall behind and ceiling above the stove”), show it. The visual representation will be much more powerful and easier to grasp than any verbal narrative could possibly be.

Related cases involve comparisons between two places or objects. Say that you are defending a former commercial tenant being sued by the landlord for unpaid rent, and you want to show that the landlord failed in its duty to mitigate by asking an unreasonably high price to re-let the space. Your real estate expert could just orally describe the features of the premises in question and why they are less desirable than those of other spaces on the market at the same price — or (s)he could show and narrate photographs of the premises, showing its cramped, dark, awkward layout and contrasting it with photographs of other available restaurant space which is lighter and airier. Which approach do you think will be more effective?

A good rule of thumb is: if you can take photographs of what the expert is describing, take them and have the expert use them. And when we say “photographs,” we also mean X-rays, MRIs, ultrasounds, and so on. Essentially, if you can show what something looks like instead of just verbally describing it, it has far greater influence on the viewer. For example, if you have a personal injury case, what do you think will impact the jury more: your medical expert saying “the plaintiff had a compound fracture, which is a fracture where the skin is pierced by a broken bone,” or showing the jury a photograph of a bloody bone sticking out of the plaintiff’s leg?

The use of photographs crosses or blurs the line between actual fact and demonstrative evidence, so they will have to be authenticated by someone with personal knowledge — that is, the person who took them. And that means you need to lay the groundwork.

Lather, Rinse, Repeat & Repeat Again: Using Your Expert to Review Powerful Fact Evidence

You’ll generally have shown your photographs during your fact witness testimony. But there’s a limit to how many times you have your fact witnesses flash the same photos before opposing counsel objects or the judge him/herself tells you to move on. But if the photos are compelling, you’ll want to show them again and again — you’ll want to burn their images into the jurors’ eyes.

Have your experts show them again. There’s no real cognizable objection to the photos being shown again as your expert uses them to make some oh-so-expert-y point. You can use your expert not just for his or her expertise, but as an excuse to run your best and most affecting evidence under the fact finders’ noses again.

Graphics Which Show Spatial Relationships: Help the Fact Finder Envision What Was Where

Which is easier to understand: a map or drawing showing the location of buildings, cars, and/or people, or someone droning on and one about how “The first vehicle was in the outer northbound lane. The second vehicle was in the outer southbound lane. The second vehicle came around a 60-degree curve from the east and would have come into view of the first vehicle roughly 275 meters away . . .” etc.?

There is NO better way to show locations and spatial relations than graphically, so prepare the appropriate maps, drawings, or models (models are particularly valuable when there are three, not just two, dimensions in play — e.g. when height or elevation matters, too) for your expert and let him or her use them to show, simply, quickly, and unambiguously where the various players and pieces were. Obviously, you may need to prepare several demonstrative exhibits, to show locations at the start of an event, while it is occurring, and at the end, etc. But the goal is to be clear about what happened, so there’s no such thing as “overkill.” Either the situation is clear to the fact finder or it isn’t. If it is clear, then the effort and cost put into preparing the exhibits is well worth it. If it is not clear, then you didn’t prepare enough (or good enough) exhibits.

Blow-ups: Make the Small Big

Your expert may be testifying about fine or small points; for example, if you have a handwriting expert, he or she may be testifying about how a particular loop or curlicue differs from one hypothetical signature to another. It can be awfully hard to the fact finders to see something in the equivalent of 12-, 14-, 16-, 18 -, or even 24-point type, which is about how large most of us sign papers. On the other hand, if you blow the relevant signature elements up to 4”, 5” or taller, then everyone can see and follow your expert’s discussion of the key similarities or differences.

The same principal applies whenever any key elements are themselves small. For example, say you have a product liability case, and the part of the device/product that failed is ½” or 1” long — have a photographic reproduction of it at 10x normal scale, so that the judge on his/her bench, or the jurors in their box, can actually see it.

“Look here!”—Highlight the Critical Elements

Another advantage of demonstrative evidence is the ability to add highlighting, emphasis, even arrows pointing to the important elements or details. Not only can you blow up any small details, but you can pick them out in color or bold type, circle them, and have an arrow pointing straight at what you really want the fact finders to notice. There is no need or reason to be subtle: think about being as obvious as the OxyClean or ShamWow guys hawking their wares. You want whatever is important to “POP!” like the tagline on a late-night infomercial.

Hire Professionals—Amateur Hour Does Your Client No Favors, and Saving a Few Hundred Dollars is a False Economy

The author spent 18 years in the publishing industry. He’s personally conversant enough with several graphic and layout programs as to be able to, with a straight face, claim he can do book layout, create catalogs, or even illustrate the average math book or business text. But he’s also smart enough to know that does not, in any way, shape, or form, make him a graphic artist. The difference between your author’s best efforts and those of a professional is the same as the difference between a bright pro se litigant’s efforts and your own abilities, as an educated, trained, and experienced attorney, at litigation … which is to say there is no comparison.

Don’t think that you and your expert (unless he or she is part of a larger organization with its own internal graphics department or unit) are an adequate substitute for a professional graphic artist. Assuming there’s serious money at stake — and if there wasn’t, you wouldn’t be hiring an expert in the first place, would you? — it’s worth the investment to hire a professional to create your demonstrative evidence. Layout, presentation, emphasis … the pro will know how to make these and other elements work for your case in a way that you, or a subject matter expert, simply won’t. Think about the difference between a slick pharma, perfume, or major insurance company ad, and the ads aired on local cable TV by your nearby used-car dealer — that’s the sort of qualitative difference we’re talking about.

Summary—Demonstrative Evidence is Often What Separates the Amateurs from The Professionals

Anyone can talk to another person — e.g.. take direct testimony of an expert — and get the basic point across. But can you sell that point (and let’s be honest: litigation is selling your client’s point of view)? Pros can sell; amateurs don’t.

 

#9867034 Mallet And Stethoscope Over Sound Block In Court

Experts Improperly Excluded from Giving Res Ipsa Loquitur Testimony in Medical Malpractice Lawsuit

In most medical malpractice cases, one or more expert witnesses for the plaintiff testify about the appropriate standard of care, a physician’s breach of that standard, and how the breach caused an injury to the patient. In most of those cases, a specific negligent act is identified as the mechanism that caused the harm. In some cases, however, no single act of negligence is the clear cause of the patient’s injury.

A legal theory known as res ipsa loquitur (“the thing speaks for itself”) allows negligence to be inferred from the nature of the accident. If it is unreasonable to conclude that the accident could have occurred in the absence of a negligent act, negligence can be inferred.

Alma Willis sued a plastic surgeon and other healthcare providers, alleging their negligence during surgical procedures regarding her breasts and abdomen. Although the experts testified to various breaches of standards of care, they could not determine which specific breach caused Willis’ injuries. The trial court did not allow the experts to testify that her injuries would not have occurred in the absence of negligence.

The trial and appellate courts treated the argument that no injury could have occurred without negligence as being based on res ipsa loquitur. An Illinois Appellate Court ruled that Willis’ experts should have been allowed to testify that no injury would have occurred in the absence of a negligent act, even if they could not identify the specific negligent act that caused her injury.

Willis’ Surgery and Its Aftermath

Willis’ doctor recommended that she have surgery to relieve her back problems. A plastic surgeon, Dr. Jeffrey Flagg, performed surgery to reduce the size of one breast and to reconstruct the other. He also performed a revision of her abdomen.

Dr. Flagg decided to perform all the procedures in a single surgery. He told Willis the operation would take five hours but it actually lasted twelve hours.

Willis was discharged the next day despite having painful swelling in her arms. Three days later, her daughter observed that she was disoriented. The daughter brought Willis back to the hospital, where doctors found blood clots (pulmonary embolism) in both of her lungs. She remained in the hospital for a week as the clots were treated.

During her hospitalization, nurses noted that Willis continued to complain about ongoing pain in her right hand that had been present since the surgery. A nurse noted in her chart that doctors were aware of her complaint.

Willis’ pain persisted after her discharge. About a month after her surgery, a neurologist determined that she had sustained nerve damage near her right elbow and in the carpal tunnel. Surgery to relieve pressure on the nerves was only partially successful. She continues to have pain and some limitation of motion in her right hand.

Willis’ Litigation

Willis sued Dr. Flagg, the hospital where her surgery was performed, and the anesthesiologists involved in the surgery. She alleged that Dr. Flagg unnecessarily prolonged her surgery and that her nerve injury would not have occurred in the absence of medical negligence.

Although an anesthesiologist testified that he did not remember the surgery, he believed that he, Dr. Flagg, and the initial nurse anesthetist would have supervised the positioning of Willis’ body during surgery. He thought they would have placed soft restraints on her arms between the wrists and the elbows, that they would have checked her positioning every hour, and that they would have repositioned her before the abdominal surgery.

Dr. Flagg testified that the surgery was prolonged by the discovery of a large mass on the chest wall. He acknowledged that longer surgeries increase the chance of developing a blood clotting condition known as deep vein thrombosis (DVT). He also acknowledged that Willis suffered from DVT after the surgery.

Dr. Flagg did not prescribe anticoagulants after the surgery, although he agreed that anticoagulants are one way to prevent DVT. He instead gave instructions to have Willis walk and move around after surgery, although he did not put that instruction into her discharge orders.

Willis’ Expert Testimony

Willis’ treating neurologist testified that the nerve damage near her wrist was caused by the carpal tunnel filling with fluid. Charles Barton, a nurse anesthetist, testified that the nurse anesthetist who positioned Willis during her surgery violated the standard of care by failing to position her correctly and by infusing far too much fluid. Barton also attributed the swelling in her arms after surgery to excessive fluid.

An orthopedic surgeon, Dr. John Fernandez, testified that Willis’ surgery caused her nerve damage. He opined that injuries to her brachial muscles that were shown on an MRI and injuries to her nerves shown on an EMG would not “just happen on their own.” Since Willis had no symptoms of those injuries before the surgery, they must have been caused by the surgery.

A neurologist, Dr. William McElveen, explained that a hematoma, probably caused by compression, led to the swelling at the elbow. He believed the compression could have been caused by the blood pressure cuff on her arm, someone leaning on her arm, or the extended position maintained during the surgery. He rejected the theory that nerve damage was caused by improper insertion of a needle during her subsequent hospitalization for blood clotting because Willis would have felt and complained about extreme pain if that had happened.

Dr. Geoffrey Keyes, a plastic surgeon, testified that the applicable standard of care required Dr. Flagg to end the surgery after he completed the abdominal revision, about five hours into the surgery, because Willis had lost a great deal of blood. The prolonged surgery and excessive blood loss increased the risk of complications, including pulmonary embolisms. He thought the prolonged surgery and Willis’ positioning most likely resulted in her nerve damage, although he could not identify the specific mechanism by which pressure was placed on the nerve. He thought the swelling of her arms might have caused the straps that held her arms to tighten, compressing the nerve.

Testifying as an expert in anesthesia, Dr. Brian McAlary testified that multiple factors, taken together, might have caused Willis’ arms to swell, even if no single factor was responsible. He identified the administration of excessive fluids, diminished oxygen delivery to the nerves in her arms, and the failure to change the position of her arms during surgery as contributing factors.

The court would not permit the experts to testify that the nerve damage would not have occurred in the absence of negligence. The jury returned a verdict in favor of the defendants.

Appellate Decision

On appeal, Willis challenged the trial court’s refusal to allow her experts to testify that the injuries could not have happened unless the healthcare providers were negligent. She also challenged the trial court’s refusal to instruct the jury that it could infer negligence if the principles of res ipsa loquitur were satisfied.

In Illinois, negligence can be inferred from the fact of an injury if (1) an injury of that nature would not ordinarily occur in the absence of negligence, and (2) the means of causing the injury were within the defendant’s exclusive control. Under those circumstances, the plaintiff need not call a witness who saw the act that caused the injury.

Willis was unconscious during her surgery and could not have seen anything. Since she was under the control of the defendants, a jury could find that any injury occurring during the surgery was caused by negligence if the injury would not ordinarily occur in the absence of negligence.

Willis presented expert evidence that she was injured during surgery. That evidence was sufficient to permit the jury to reject the defendant’s claim that she was injured during her second hospitalization. It was up to the jury to decide whether to believe Willis’ experts or the defense experts.

Willis’ also presented expert evidence that standards of care were breached during her surgery. Experts testified in depositions that the nerve damage Willis sustained would not have occurred in the absence of negligence. No defense evidence suggested a non-negligent explanation for the nerve damage that occurred during the surgery.

The trial court thought that res ipsa loquitur was inapplicable because Willis’ expert witnesses agreed that nerve compression during the surgery caused the injury. But the witnesses did not know what caused the nerve compression. It could have been caused by failing to loosen straps when Willis’ arms started swelling, or by administering excessive fluid during the operation, or by leaning against Willis’ body during the surgery, or by failing to reposition her during the lengthy breast surgery, or by repositioning her incorrectly before the abdominal surgery.

The trial court erred by concluding that the expert witnesses understood the mechanism of the injury. The outcome was a compressed nerve, but the mechanism by which the nerve became compressed was unknown.

A dissenting opinion suggested that the second hospitalization was a possible cause of the injury outside the defendants’ control and that the res ipsa theory was therefore unavailable. The majority opinion recognized that Willis’ experts provided ample reason to reject the testimony of the defense experts as speculative.

Which experts were worthy of belief was for the jury, not appellate judges, to decide. Willis was therefore entitled to have the jury instructed that it could find in favor of Willis if they agreed that (1) her injuries occurred while she was under the control of the defendants during the first surgery, and (2) those injuries would not ordinarily occur without negligence. She was also entitled to have her experts testify that she would not have been injured if negligent acts had not occurred.

A res ipsa loquitur jury instruction, and testimony that the injury could not have occurred in the absence of negligence, were necessary for a fair trial. Since Willis did not receive a fair trial, she was entitled to present her expert’s full opinions and to have her case decided upon the basis of correct jury instructions in a new trial.

 

Late Disclosure of Expert Witnesses in Divorce Trial Leads to Order Barring Their Testimony

Jeffrey and Julie Nelson were involved in a divorce proceeding that lasted longer than their four-year marriage. After five earlier appeals from provisional orders pending the final hearing, an appeal of the final outcome was seemingly inevitable.

One of the sticking points involved the value of Jeffrey’s interest in oil leases. Julie testified about Jeffrey’s ownership of those interests and presented expert testimony about their value. Jeffrey did not testify but offered expert testimony of his own. The trial court decided that Jeffrey’s expert was not qualified and therefore declined to consider his opinion.

The day before the final day of trial, Jeffrey disclosed two new experts. One would have testified that Julie’s expert overvalued the oil leases. The other would have testified about the amount and sources of Jeffrey’s income.

Julie had served an interrogatory upon Jeffrey that asked for the disclosure of experts. Julie contended that Jeffrey should have supplemented his interrogatory answers to disclose the two new experts. The court agreed with Julie that the disclosure of those experts on the day prior to the last day of trial came too late. The court excluded the experts from testifying as a discovery sanction. Jeffrey appealed and the Indiana Court of Appeals affirmed the judgment.

Late Disclosure of Experts

On appeal, Jeffrey apparently did not take issue with the trial court’s decision that his original expert was not qualified to render an expert opinion. Rather, he contended that the court should not have excluded the experts he proffered during the trial.

The hearing took place on six days between November 2018 and July 2019. Julie’s expert testified on June 25, 2019. Jeffrey complained that he did not have enough time between June 25 and July 12 (the last day of trial) to retain new experts. Jeffrey argued that he did not recognize the need for expert testimony until Julie’s expert gave valuation testimony that Jeffrey realized was clearly wrong.

The appellate court characterized Jeffrey’s argument that he did not anticipate the need for expert testimony as “baffling.” Jeffrey knew that Julie contended the oil leases were marital property that was subject to division. He knew the court needed to place a value on property that it divided. He apparently knew that he would not be relying on his own testimony to establish their value, given his decision not to testify.

It is difficult to understand why Jeffrey did not know in advance of trial the opinions that Julie’s expert would offer. If Jeffrey did not engage in discovery, that choice would not excuse his failure to anticipate the need to call his own expert witnesses.

The appellate court was unsympathetic with the claim that Jeffrey had too little time to find an expert. He should not have waited until Julie’s expert testified to begin his search. Under the circumstances, the trial judge did not abuse his discretion in excluding Jeffrey’s experts due to Jeffrey’s belated disclosure of their identities.

Lessons Learned

The trial court was plainly influenced by its belief that Jeffrey’s late disclosure was an obstructive litigation tactic. The court characterized Jeffrey as having “repeatedly interrupted, obstructed, embarrassed, and prevented the due administration of justice in these dissolution proceedings.”

Obstructive tactics will never endear a litigant to a judge. The lesson to learn is that lawyers should make diligent efforts to learn what expert testimony an opposing party will present, to locate experts who can present more favorable testimony (if any exist), and to respond to a request to disclose experts in a timely manner.

Utilizing Handwriting Experts: They’re Only as Good as the Samples You Provide

A forensic document examiner is better known as a handwriting expert. They come into play when one person says that another person signed some document — a contract, a lease, a will, a power of attorney, a promissory note, etc. — but the second person, or his or her representative, denies that he or she did. At that point, it may be necessary to have an expert examine the purported, or claimed, signature, to see if it is — or is not — that person’s signature.

How do they do this? They compare the purported signature to known or uncontested examples of that person’s signature, to see whether, and to what extent, they match. That means that the samples, known as “exemplars,” provided to the expert are critical: as in the old computer-related acronym GIGO, or “garbage in, garbage out,” poor or inadequate samples will result in a weak, erroneous, or easily neutralized (by the other side) expert opinion.

What Do Experts Look for When Analyzing a Signature?

First, a quick primer on what forensic document examiners look for when comparing signatures. Obviously, they look at the shape of the letters — does the “A” in the purported or questioned signature match the “A” in the known exemplars of that person’s signature, for example. But that’s only the start of the analysis: they also look at (among other things) —

  • The slant of the signature: does it slant right or left, upward or downward?
  • The weight or thickness of the lines
  • Whether it rests on, above, or below the signature line, and how far below the line any extensions of letters (like the lower part of a “p” or “g”) go
  • Do the loops or curls appear to have been drawn counterclockwise or clockwise?
  • Where are the starts and stops in the signature?
  • How “fluid” is the signature, and does it appear to have been drawn in one smooth move, like a well-practiced signature would be, or does it look like there were hesitations, as if someone were trying to copy something they are unfamiliar with?
  • The handedness — was it evidently made by a righty or lefty?

There are many elements to the analysis, and two signatures can look superficially the same but yet show significant inconsistencies on deeper examination. That’s why good exemplars are critical: you need samples that will let the expert do a deep, detailed analysis of multiple elements of the signature.

People Don’t Sign Things the Same Way Every Time

Complicating the handwriting expert’s job is that people do not sign things the same way every time. To begin with, people sign differently depending on how “formal” or “informal” the document is. We take more care on “weighty” documents that affect our rights than we do on documents carrying few or no consequences, and that means that we tend to take more time signing, and have a more legible signature, on formal (important) documents than on informal (less or unimportant ones). Think about signing an apartment lease or contract to buy a home or your will. Now contrast that with scrawling your signature on the receipt for take-out pizza or even the sign-in sheet in a courtroom and you’ll understand the difference. Is your signature the same in these different contexts? Almost certainly not.

Second, we tend to sign things we sign all the time differently than we sign one-off or uncommon documents. With things we sign all the time — cover letters; checks — we run on autopilot; with less-familiar documents, we often think about them more, and that thinking introduces a hesitation into, and therefore alters, our signature.

Third, the amount of space you have to sign will alter your signature: if you normally have an expansive signature but are now cramming it into a form’s small signature box, that will change letter forms and spacing.

Fourth, signatures change over time. Just as we are not static or unchanging — we learn, we grow, we change — so, too, does our signature change over time. Look at a document you signed 10 or 20 years ago and compare it to how you sign today — it’s virtually certain that even your inexpert eyes will see differences.

Fifth, the conditions under which we sign affects how we sign: when you’re in a rush, or tired, or had too much coffee or some wine, you will sign differently than on those occasions you are unhurried, unrested, and unaffected by what you’ve been drinking.

And sixth — we’re not robots. We simply do not do things the exact same way every time, even when we do something several times in quick succession under the same or similar circumstances. Take out your pen and sign your name five times; even though the five signatures should be very similar, they are not 100% identical. That’s because we’re human, not Siri or Alexa.

What Makes for a Good Exemplar?

Because signatures change over time, you want to provide your expert with exemplars that are as contemporaneous as possible with the signature being examined. If, for example, someone claims that your client signed a document 20 years ago giving that person a life estate in a home (which was the issue in the author’s most recent experience with forensic document examiners), then you want to provide your expert with signature samples from 20 years ago, or as close to that time frame as possible.

Because we sign formal and informal documents differently, if the questioned signature is on a formal document — something like a deed, a lease, a will, etc. — you want to provide samples of similarly formal documents. And conversely, if the questioned signature is on an informal document, be sure to provide informal exemplars.

Because we tend to sign document types we sign day-in and day-out differently than we sign unusual or uncommon documents, try to provide exemplars of the same, or at least similar, type(s) of document(s). And because the amount of space for signature affects how we sign, try to provide exemplars which have similarly sized signature lines or blocks.

Quantity Has a Quality All Its Own

Remember, our signatures are never identical, even when we sign two documents in close succession: there is always some natural variation. In a sense, none of us have “a” single signature; what we think of as our signature is really the current “average” of how we sign documents. Sometimes the letters of our signature will be slightly larger, sometimes slightly smaller; sometimes closer together, sometimes wider apart; sometimes more legible, sometimes less; etc. Any one sample of your signature will almost certainly not match 100% any other single sample. Therefore, you want to provide multiple samples, so that as the expert examines exemplar after exemplar, he or she can derive the common elements and compare those fundamentals of the person’s signature to the signature in question.

But Don’t Forget Quality

The expert needs to be able to see the signature’s elements clearly. Originals are better than copies, since there is no “blurring” due to the copying process and certain aspects (like, for example, the pressure used by the signor when signing) are more easily seen in originals. If you can’t provide an adequate number of originals, provide the best-quality copies you can — for example, “first generation” copies of originals, not copies of copies, since with each successive copying, detail and crispness is lost.

Summing It Up: What You Should Provide Your Expert as Exemplars

When trying to determine if person A did or not sign a certain document, provide as many samples as possible of how A signed similar documents (similar level of formality or import; similar type of document; similar space for his or her signature) at the same or a similar point in time as the document in contention. The more, the better: 60, 70, or more exemplars are not too many, because you want your expert to be able to confidently state that he or she has identified the fundamental elements of that person’s signature, explain them to the court, and state whether those same elements are (or are not) found in the questioned document.

A failure to provide enough, or relevant enough, or sufficiently high-quality exemplars will leave your expert vulnerable on cross examination. Opposing counsel who knows what they are doing will be able undercut your expert’s conclusions by showing that the exemplars are from sufficiently different types of documents or circumstances or time periods that they are not relevant; or perhaps they will show that there were insufficient exemplars as to draw firm conclusions; or that the exemplars are of such low quality that no fair comparison can be made.

No matter their academic qualifications or experience, a forensic document examiner’s opinion is only as good as the samples they have to work with — give them what they need to help your case.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida State Attorney Releases “Brady Alert List”

Orange-Osceola, Florida State Attorney Aramis Ayala has released a new database that identifies experts that have credibility issues. This database is called the “Brady Alert List.”

Ayala created this database to have a centralized list of witnesses who appear in court on a recurring basis and who have engaged in criminal behavior, misconduct, or dishonesty.

Brady Committee

Ayala initially announced her plans to create this database in July 2019. With the database came the creation of a Brady Committee to evaluate witness credibility. The Brady Committee is comprised of the director of conviction integrity, the chief investigator, two felony bureau chiefs, and the chief assistant state attorney.

The Brady Committee is tasked with reviewing information about witnesses and determined whether witnesses should be cleared, placed on a Brady Alert List, or placed on a Brady exclusion, or “Last Resort” list.

If a witness is listed on the Brady alert list, the prosecutors will be notified. It will be up to the prosecutors whether to proceed with caution or obtain permission if they choose to call that person as a witness. If a witness is on the Brady exclusion list, he or she is not permitted to testify as a state witness.

In explaining her reasoning for creating the Brady Alert List, Ayala explained, “My office processes hundreds of thousands of criminal cases every year, and in many instances, prosecutions rely solely on the honest and credible testimony of law enforcement and other personnel who either witness or investigate crimes.”

Ayala gave the example of a recurring state expert witness who was later found to have questionable credentials. A former fingerprint examiner had documented performance issues relating to failing to identify prints of value, questionable findings, and mislabeling of print cards. This issue was not discovered for two years. The 2,500 cases that involved this expert are currently under review.

Review Process

The Brady Committee has been meeting monthly since June 2019 to determine who should be on the list. The committee initiates a review of a law enforcement officer or expert witness when that person is relieved of duty, under investigation for criminal conduct, or accused of any other misconduct. Once someone is added to the database, their place of employment is notified.

The Fraternal Order of Police has raised concerns about the Brady Committee and its process. The Order has suggested that the committee should have members outside of the state attorney’s office on it, that it publish its criteria, and that due process be provided for the people placed on the list. The organization’s concern may be related to the fact that prosecutors so often rely on law enforcement officers with dubious credentials as expert witnesses.

Initial Release

The newly released list includes 38 law enforcement officers, confidential informants, and forensic experts. This first iteration of the list is only a Brady Alert List. None of the names were listed on a Brady Last Resort List.

Ayala said that she believed that some of the names listed on the initial Brady Alert List should have instead been on a Last Resort list, but that she decided not to immediately publish a Last Resort list when the Orlando Police Department Chief Orlando Rolon told her that anyone that was placed on this list would not be able to function at the agency, but would still have to be paid.