The Value of a Reputation

How much is your reputation worth?  If you ask top expert witness, Craig McCann, he would probably tell you his reputation is priceless. And he should know because he has recently felt the repercussions of an attack on his professional reputation.

For years, Craig McCann has been considered a top expert witness, playing a vital role in the recovery of millions of dollars for investors suing financial companies. So, it should come as no surprise that Mr. McCann had a bullseye on his professional career and reputation. “As … victories piled up, brokerages went to war on [Mr. McCann’s] credentials, and more recently, his credibility. The effort provides a window into how critical expert witnesses have been to investor cases, and how intent brokerage firms are on weakening their influence.”

The brokerage firms caught a break when a federal judge issued a controversial ruling that Mr. McCann had offered “fraudulent testimony” in a 2010 arbitration. The ruling generated from a discrepancy in figures from two separate arbitrations against the same company, Morgan Keegan.  Mr. McCann maintains he disclosed the discrepancy to Morgan Keegan but the company in turn failed to disclose it to the judge, a fact which Morgan Keegan denies. While the discrepancy had no effect on the outcome of the arbitration, the “fraudulent” label stuck and had immediate repercussions.

The very next business day following the ruling, opposing counsel in a separate case used the ruling to challenge Mr. McCann’s integrity. The challenge was unsuccessful, but the fallout had just begun. Revenue at his business dropped by half and employees had to be laid-off. And Mr. McCann’s reputation has been challenged at least six times in other cases since the ruling. None of those challenges have proved successful, and Mr. McCann continues to contribute to impressive victories for investors.

Still, the ruling is out there and part of Mr. McCann’s permanent record. He will have to face it repeatedly in the future as lawyers and financial companies attempt to tarnish his image.

Mr. McCann’s story is an excellent reminder of the importance of safeguarding your reputation. Next to your education and experience, and probably equal in importance, your reputation is essential to building and maintaining a successful expert witness practice. Should you find yourself in a similar situation as Mr. McCann where you find a discrepancy in previous testimony, inform the attorney you are working with immediately and you may want to consider further measures, such as informing interested parties in writing so as to keep your image as a trustworthy expert intact.

Gatekeeping Methodologies Used by State Court Judges – Does Daubert Have Any Influence?

A new study, recently published as part of the Drake University Legal Studies Research Paper Series, has investigated gatekeeping methodologies of state court judges. Andrew W. Jurs, the researcher, discussed the results in his article Questions from the Bench and Independent Experts: A Study of State Court Judges (Pittsburgh Law Review, forthcoming). Jurs found that state court judges' use of advanced factfinding techniques, including questioning experts from the bench and appointing independent experts, had not changed much from methodologies used in the 1990’s.

The study found that 57% of state court judges have questioned an expert witness pursuant to Rule 614 (judicial questioning from the bench) while 22% have appointed an independent expert pursuant to Rule 706.  The judges were also asked to explain under what circumstances they chose to use advanced factfinding techniques. In response, 37% of the judges responded that it was appropriate to appoint an independent expert to clarify a discrete point contained within previous testimony.  Similar responses were found for other reasons to appoint an independent expert, including explaining more than one point about previous testimony, clarifying a discrete point contained within previous testimony, and clarifying a discrete point not contained within previous testimony.  Neither the judge’s gender or the length of experience on the bench had a substantial effect on the judge’s use of advanced factfinding techniques.

Research since Daubert suggests that judges endorse the active judicial gatekeeping role required by Daubert. However, Jurs found that factfinding techniques did not differ depending on whether the jurisdiction was a Daubert or Frye jurisdiction:  “In fact, judges in Daubert jurisdictions, Frye jurisdictions, or state-specific test jurisdictions appear to use Rule 614 [judicial questioning] and Rule 706 [appointment of independent expert] in similar ways.” 

Which begs the question . . . does Daubert increase judicial gatekeeping activities, specifically judicial questioning of expert witnesses and appointment of independent experts?  According to this study, the answer is no. “The design of the study could have resulted in a finding that the scientific admissibility standard does have an effect on how often the judge is likely to use advanced factfinding … But further analysis has shown this is not the case. . . [T]he effect of Daubert is not that it directly affects judges who apply that standard, but rather that it had a systematic effect which increased scrutiny of all judges to expert evidence. This is also consistent with [previous research in 2001], where Daubert and Frye were not seen to affect the judicial perception of gatekeeping.”

New Expert Witness Magazine Debuts -- The Expert Witness Chronicle Is a Valuable Tool for Expert Witnesses

A new magazine recently debuted, entitled The Expert Witness Chronicle, written and edited by the staff at Expert Witness Guru. Upon reading the first edition, I would recommend it as a valuable and helpful resource for expert witnesses. The magazine focuses on recent news pertaining to expert witnesses and includes a monthly column called the “Daubert Round-Up,” which highlights federal court decisions involving Daubert.

The inaugural edition of the magazine includes a cover piece on the Frontline documentary criticizing forensic science and forensic experts. It also includes an interesting piece regarding the troubling trend of “designation without retention” with excellent recommendations of how to protect yourself and your professional reputation from this practice.  Additionally, The Expert Witness Chronicle includes “Event Alerts,” informing readers of upcoming conferences and seminars.

You can download the first copy of The Expert Witness Chronicle for free here. I think you’ll find it an interesting and informative read.

Peremptory Strikes for Expert Witnesses?

Should expert witnesses be subjected to peremptory strikes to minimize the problems posed by “dueling experts?” Professor Rebecca Haw, a law professor at Vanderbilt Law School, discusses this interesting proposition in her law review article, “Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in the Battle of the Experts” recently published in the Northwestern University Law Review.

Professor Haw, an expert on antitrust law, discusses a fundamental problem with the “adversarial presentation of expert scientific evidence,” especially with regard to antitrust litigation. According to Professor Haw, the current system for presenting expert testimony often obscures academic consensus or the majority view and inappropriately exaggerates the importance of a minority view.

In the context of litigation, small, marginal disagreements can be made to seem important and settled issues can be made to appear hopelessly deadlocked.  . . Modern antitrust law is steeped in microeconomics, and suits rely heavily on economic expert witnesses. Indeed, expert testimony is often the “whole game” in an antitrust dispute . . .And the Supreme Court has encouraged—even engineered—this delegation to economic authority. But when antitrust judges are faced with the appearance of deadlock among economic experts, they are forced to either decide the substance of the economics themselves or ask the jury to resolve it as a matter of fact.

While some have proposed using “disinterested” or court-appointed experts to allay the perception of “hired guns,” Professor Haw suggests this is not the best solution since a court-appointed expert still may not represent the majority view.  Instead, she suggests a two-tier approach. First, the judge should take testimony on how widely held that opinion is within the academic community. Second, each side of an antitrust suit should be allowed a small number of peremptory strikes against the opponent’s expert witness list.  Through this process, lawyers can learn about the relevant views of expert witnesses devoid of stereotypes or prejudice and, ideally, “confine testimony to only mainstream propositions.”

What do you think of Professor Haw’s proposed solution?

Join Us at the Forensic Expert Witness Association 2012 Conference!

The 2012 Forensic Expert Witness Association (FEWA) Conference is almost here! The conference is April 26 – 28 and is being held at the Tuscany Suites Hotel in Las Vegas. The focus of this year’s conference is “How To Be an Effective Expert Witness,” with presentations on deposition, direct examination and cross-examination skills. Rosalie Hamilton will be presenting at a pre-conference seminar on April 26 entitled “Expert Witness Marketing Strategies.” 

FEWA was founded in 1994 as a nonprofit to promote the education and ethics of expert witnesses. FEWA has over 600 members, with local chapters in California, Texas, and Illinois. More than 100 expert witnesses attended last year’s conference.

Thomson Reuters Expert Witness Services will be sponsoring lunch at the hotel on Friday. We hope to see you there!

Frontline Tackles the Validity of Forensic Science in Documentary “The Real CSI”

The subject of forensic science and whether indeed it is a science is a hot topic these days. I have already written about the ABA’s Resolution on the matter here. Just this week, PBS aired a documentary, entitled “The Real CSI?” which focuses on the validity of forensic science and the qualifications of forensic science experts. ProPublica co-published a story with Frontline, questioning the qualifications and certification of forensic experts. In the documentary, the reporter refers repeatedly to the National Academy of Science’s report and interviews its author, D.C. Circuit Court Judge Harry Edwards, even quoting the report’s conclusion that “many forensic sciences have never been exposed to stringent scientific scrutiny” and “do not meet the fundamental requirements of science.” Ballistics, hair, blood splatter, fingerprint and bite mark analysis are all discussed and, to varying extent, discredited.

If you are a forensic science expert, it would behoove you to watch the documentary and remain informed about developments in this area.

Social Media – To Post or Not to Post?

Do you use social media in your expert witness business? Should you use social media as part of your expert witness business? There are many things to consider when evaluating the use of social media in your professional (and personal) life, including: 1) What social media networks should you use; 2) What kind and how much information should you share; and 3) Do the benefits of social media outweigh the possible negatives? The answer to all of these questions is: It depends.

A short time ago, many lawyers and expert witnesses were leery of social media. Now it is not uncommon for law firms to hire permanent staff members whose sole job is to manage the firm’s social media networks. More and more expert witnesses are using LinkedIn and Twitter to network and advertise their services. Some experts have their own blogs where they can discuss any topic of their choosing. Still, some remain cautious about using social media. However, if you manage your use of social media prudently, it can be used to your advantage. Should you decide to use social media, it is imperative that you keep the following guidelines in mind:

1) Everything you post is public. Do not assume anything you post on LinkedIn, Twitter, Facebook, your blog or any other social media network is private, regardless of your privacy settings. Do not post anything on social media that you consider private. Assume opposing counsel will read your profile or posts;

2) Be consistent. Again, assume opposing counsel will research your virtual identity. You should not post anything that could be used against you during cross-examination;

3) Avoid posting about or commenting on past or present cases. Not only can this information be twisted by opposing counsel, you may also violate confidentiality provisions with your client; and

4) Avoid discussing controversial or inflammatory subjects that are inherently divisive such as religion, race, sexual orientation, etc. Always strive to be cautious and prudent. Good judgment will result in future employment opportunities as you will be considered trustworthy and professional.

If you are considering using social media but you are  not sure where to begin, take some time to check out other expert witness blogs, Twitter and LinkedIn profiles.  Compare and contrast.  Which ones seem more professional to you and why?

If you use social media responsibly, it can be a tremendous boost to your business. Not only is it a good networking tool, it can also prove to be a valuable educational tool as well. Like the law, social media is ever-evolving, and you must stay on top of the trends if you choose to delve into this realm. Just remember, what happens on Twitter. . . does NOT stay on Twitter.

Kristin Nimsger on "Putting Customers First”

Kristin Nimsger joined Thomson Reuters early in 2012 as Managing Director and General Manager of Litigation Solutions, which includes Thomson Reuters Expert Witness Services. She brings with her a deep experience in the litigation services industry, and a deeper appreciation of the importance in providing industry leading customer service to our customers.

What attracted you to come to Thomson Reuters?

I feel privileged to be part of an organization that is so clearly dedicated to its customers and employees and their collective success. The key priorities unequivocally articulated by the leadership of the organization (and we clearly also walk the walk) begin with “put customers first”. The organization is keenly aware that the key to future success and sustainability for Thomson Reuters requires us to form close relationships with our customers, listen to their needs and to respond quickly and completely while collaborating with each other and supporting the needs of the global talent that is crucial to delivering on that mission. As a highly engaged and enthusiastic member of the team, I have great appreciation for that mission and for the investment that is being made to deliver. I’m looking ahead to a bright future for our team, for our customers and for all the stakeholders of the organization.

What major developments do you see for TREWS (or the expert witness industry, or the broader litigation industry as it pertains to witnesses) this year?

I’m very excited to be part of the TREWS evolution as we take this business to the next level to best serve our clients with the most comprehensive solution set available for litigators. In the new world economy, law firms are facing intense pressure to drive down the total cost of litigation and to bring both efficiency and greater efficacy to the practice of law. Companies do not choose to enter into, or to continue, in litigation easily, given the intense scrutiny on the legal department as a cost center. When they do choose to proceed, they want the deck stacked in their favor to ensure they will achieve a positive outcome in the shortest time possible and with the least expense possible. It is expected that the process of selecting the right expert witness will be conducted with all due speed and precision, just as those expectations continue to rise for litigators as a whole. Thomson Reuters is committed to delivering a suite of solutions ensuring that firms can easily access all of information necessary to evaluate and find the just the right expert, to do it quickly, and to ensure that the expert is prepared to perform in the most effective manner possible.

How do you see TREWS’ role in the expert witness industry?

In today’s “new normal” economy business is increasingly complex, driven by technology, innovation, and sophisticated products and services. Litigation in this new environment reflects that sophistication and complexity. This reality means that expert witnesses are often brought to the center and the forefront of litigation matters.  Corporations expect that the experts that their law firms (and they) select will be just that: expert in the subject matter of their case and expert at being an expert witness, delivering precise evaluations and opinions on complex topics. Thomson Reuters’ Expert Witness Services will ensure that experts be matched with the cases for which they will be most effective, with the right tools and information to deliver on the needs of the law firms and corporations they serve.

What do you bring from your previous roles in the legal industry?

After leaving the practice of law, I spent about 11.5 years in the E-Discovery business, growing my former company to its position as one of the industry’s leading service providers with offices in more than 20 countries. I spent the last 4+ years as President of that organization, leading it through the recent sale to private equity ownership. My time there got me up close and personal with law firms of all sizes and all around the world as they grappled with the changing litigation landscape and world of exploding discoverable digital information and communication. I also had the privilege of holding a vantage point which permitted close observation of the myriad models for interaction between highly litigated corporations and their outside counsel, experts and information service providers, while providing solutions and service to both. I hope and believe that these past experiences will help guide TREWS into the future as we deliver, integrated with the rest of the Westlaw Litigator solution set, comprehensive assistance to our expert and attorney customers.

There’s an App for That

Who doesn’t carry a mobile device or tablet of some sort? These days, they are as common, if not more so, than laptop computers.  Many lawyers no longer carry briefcases or haul big boxes of documents since they can access all of this information directly from their iPad. Lawyers have a plethora of apps to choose from, including apps for legal research, organizing documents for deposition or trial, to track billing, etc. Expert witnesses should not feel left out. There’s an app for you, too. Here is a short list of apps you may find helpful in your expert witness practice:

1) Black’s Law Dictionary: Great to use as a quick reference for the definition of legal terms;

2) Law Libe: This app includes a wide range of information, including access to the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure and Federal Rules of Evidence. This is a useful reference for expert witnesses who want to have access to the rules that apply to expert witness reports and testimony;

3) ABA Journal: Provides breaking legal news and access to articles in the ABA Journal;

4) Bloomberg: This app provides a wealth of information, including news, market trends analysis, market leaders, price charts, company descriptions and more.  This app is also customazible;

5) Reuters News Pro:  Allows the user to have access to news and market data on a number of handheld devices. The app features include world, business, and market news, global financial data, corporate information, customizable stock tab, science, health, and technology news;

6) Social Science Research Network: This is an excellent resource for scholarly research in a number of disciplines, allowing the user to search more than 260,000 research papers in the SSRN library, as well as email or view papers retrieved in search results;

7) NY Times: Allows users to access the latest news; and

8) RECALLS.GOV: This app was created by the U.S. government and provides information from the Consumer Product Safety Commission, the National Highway Traffic Safety Administration, the Food and Drug Administration, and the Department of Agriculture about recall announcements. The user can type a product's name into his device and learn immediately whether the product has been recalled because of a safety concern.

National Expert Witness Survey Contest Rules

These are the rules for the random drawing on 5/1/12. Entry must be via the survey invitation sent on 4/2/12.

1.     No purchase necessary.

2.     Contest starts on 4/2/12 and ends no later than 4/29/12.

3.   Thomson Reuters Expert Witness Services reserves the right to discontinue the contest at any time.

4.     Void where prohibited by law.

5.     Participants must be residents of the United Sates of America.

6.     Contest open to those 18 and older.

7.     Participants are bound by the Official Rules.

8.     Entry is limited to recipients of our survey

9.     One entry per person and each entry must be made separately.

10.  All prizes will be awarded by TREWS as independent judges and the independent judges' decisions will be final.

11.  Employees of Thomson Reuters and affiliates and family members are not eligible to win.

12.   "Odds of winning will be determined by the total number of entries received."

13.  The prize will be re-awarded if original prize winner forfeits.

14.   Prizes are non-transferable and no substitutions or cash redemption will be made.

15.  For a winners list, please check our blog posting dated 5/1/12, titled "National Expert Witness Survey Contest Winner."

16.  The estimated value of this prize is approximately 600.00.

17.   Entries are the property of TREWS and none will be returned, including copyrighted material that shall become the property of TREWS.

18.   Only one prize per person.

19.  Not responsible for lost, late, illegible, misdirected, mutilated, incomplete or postage due mail or electronic or computer delays or malfunctions.

20.    Winners may be required to sign an affidavit of eligibility and release from liability within 10 days of notification of any award or upon redemption of prize.  Entry in the contest constitutes permission to use winner's name and likeness for publicity purposes, without further compensation, where permitted.