1 SUMMER 2009 NEWSLETTER A Professional Association of Consultants Providing Expert Services IN THIS ISSUE: 1 FEATURE ARTICLE NEW MEMBER BENEFIT 2 7 NOTES FROM THE EXPERTS 8 26 CHAPTER MEETINGS & INFORMATION CALIFORNIA: LOS ANGELES ORANGE COUNTY SACRAMENTO/SIERRA SAN DIEGO SAN FRANCISCO TEXAS MIDWEST ARIZONA 27 MEMBERS IN THE NEWS 29 NOTES FROM OUR EXECUTIVE DIRECTOR FEWA Expert Witness Errors & Omissions Insurance Program New Member Benefit! The insurance program will soon have a link on FEWA s website Last year, FEWA set out to put together an insurance plan available to FEWA members only that would address the specific liability concerns of the expert witness at very competitive rates. The selection process involved a search for the most experienced and capable brokerage firm and a detailed Request for Qualifications (RFQ) process. We are pleased to announce that Complete Equity Markets, Inc. was selected and, pending final board approval, will soon have a live link on the FEWA website. Complete Equity Markets, Inc. offers an insurance plan exclusively designed to meet the unique needs of today s forensic litigation professionals. This policy provides coverage for suits arising from negligent acts, errors and omissions; oral and written publication of statements that result in charges of libel or slander; and charges of infringement upon the right of privacy or infringement of copyright or trademark and charges of unfair competition. SAVE THE DATE! February 25 27, 2010 For your immediate E&O insurance needs, or if you have questions regarding the details of the specific policy, you can feel free to contact the insurance company: Melanie Javens Complete Equity Markets, Inc Flex Court Lake Zurich, IL ,323,6234 ext. 460 Direct phone: Direct fax: This is another new FEWA member benefit! FEWA S ANNUAL CONFERENCE: DIVERSE DISCIPLINES...COMMON CONCERNS DEPOSITION WORKSHOP CASE BIOPSIES NATIONALLY KNOWN SPEAKERS, JUDGES & PANEL OF EXPERTS [COMPLETE INFORMATION COMING SOON] Estancia La Jolla Hotel & Spa La Jolla, California
2 2 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION FORENSIC Rehabilitation During trial, the physiatrist is one of the most qualified witnesses to present objective testimony Forensic rehabilitation? That sounds suspiciously like an oxymoron. However, in personal injury litigation, a physiatrist, an M.D. or D.O. specializing in Physical Medicine and Rehabilitation, can often be helpful in case preparation, as well as trial testimony. A physiatrist as a rehabilitation expert is able to diagnose and evaluate disabling conditions. This would include assessment of the impact of disability in the life of the injured and on those who are close to the injured, such as family members. This assessment must also include the impact of injury on many facets of life: physical, psychological, educational, vocational, avocational, social. economic, and spiritual. The early development of a comprehensive rehabilitation treatment program is imperative if optimal outcomes are to be expected. The rehabilitation expert (physiatrist) determines the extent to which a disability exists, its relationship to injury, and develops a comprehensive rehabilitation plan to optimize outcomes, to minimize overall negative impact, and to bring Dr. Livingstone is a physical medicine and rehabilitation specialist (physiatrist) in Lake Havasu City, Arizona. He is board certified by the American Board of Physical Medicine and Rehabilitation, having developed an interest in this field because of his personal experience after a motor vehicle accident resulted in spine and spinal cord injuries and paraplegia at the age of eighteen. He can be reached at com. NOTES FROM THE experts E. FRANKLIN LIVINGSTONE MD about maximum recovery of function and quality of life. The overall analysis might include a study of potential and actual economic loss, a prognostication of future employability or under-employability, and a cost analysis of the rehabilitation program and its implementation. Some of the more difficult cases encountered by personal injury attorneys involve clients who have apparently minor injuryrelated physical disabilities, but seem to face greater problems in view of certain psychological sequelae and, all to often, chronic pain residuals. Not only will a qualified rehabilitation expert be instrumental in assisting the client in the recovery from, as well as adaptation to, potentially disabling injury, he or she is able to document the nature of psychological trauma and pain. Often the attorney will become aware of a significant personal injury case while the client is still in a healthcare facility which may not be able to provide appropriate or the necessary rehabilitation services. In addition, a review of medical records may not identify anyone coordinating health and rehabilitation services as required. These situations compel immediate action, review and analysis in order that the appropriate recommendations are brought to the client and family, and that implementation is expedient and timely. A knowledgeable and reputable rehabilitation consultant can persuade the present healthcare providers to participate in a coordinated long-term rehabilitation treatment program. The rehabilitation consultant is also able to make appropriate recommendations, redirect therapy efforts, or consider alternative placements with the long-term perspective. This also underlines the importance of early engagement of the rehabilitation expert (physiatrist) consultant. As a general rule, a personal injury attorney should select or have in mind the rehabilitation expert as soon as the file is opened. Current concepts of rehabilitation recognize the importance of starting the rehabilitation process as early as possible. In minor injuries, however, there is less urgency to consult with a rehabilitation expert until the extent of any residual disability can be assessed. It should be understood that in any case involving potentially disabling conditions, factors can arise indicating the need for rehabilitation expertise early in the recovery process. The rehabilitation expert (physiatrist) is the most qualified to participate in the development of life care planning, and to provide critique to assure thoroughness and appropriateness of every aspect of the life care plan. This would include medical care needs, rehabilitation therapy programming, transportation needs, specialized equipment or home modifications, and educational and vocational considerations. Furthermore, the rehabilitation expert is the most qualified to explain and justify the life care plan in deposition or trial testimony. The consulting rehabilitation expert (physiatrist) should be able to work with the attorney on an ongoing basis, providing periodic reports and updates, written or verbal, and when needed, assist in obtaining insurance coverage benefits. In addition, the rehabilitation expert is able to help in trial preparation, providing the attorney with insight into the presentation of evidence at trial, and to insure that testimony preceding the expert s testimony sets the proper foundation and support for the opinions of the expert. During the trial, the rehabilitation expert (physiatrist) is one (Continued, see Rehab, page 28)
3 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 3 FORENSIC Accountants Add Value to Business Valuations, Part 1 What s it worth? There s more than one way to find out Forensic accountants are often retained to support special investigations related to a broad range of subjects. A number of skills and techniques are required to reconstruct the facts, and business valuation remains one of the most prominent services we are called upon to provide. While we are often sought to provide business valuation work in relation to litigation Steven J. Hazel, CPA, ABV, ASA, CVA, CMC, is a director in the Denver office of RGL Forensic Accountants & Consultants. With more than 20 years of accounting experience, he is highly credentialed in the area of business valuation. He may be reached at us.rgl.com. NOTES FROM THE experts STEVEN J. HAZEL CPA, ABV, CVA assignments, all business valuation engagements can benefit from forensic investigation. Generally, there are four areas of forensics what we like to call the Four F s that can be helpful in business valuations: Forensic Accounting, Fraud, Fidelity and Forensic Technology. In part I of a four-part series on the use of forensics in business valuation, we will focus on forensic accounting. Business Valuation Concepts A clear understanding of Fair Market Value is the foundation of any business valuation endeavor. Fair Market Value is the most widely used and accepted standard of value in the United States. The term is defined in Revenue Ruling as follows: price at which the property (business) would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of relevant facts. Court decisions frequently state in addition that the hypothetical buyer and seller are assumed to be able, as well as willing, to trade and to be well informed about the property and concerning the market for such property. With this definition in mind, there are three generally accepted approaches to the valuation of assets: the asset, income and Continued, see Value, page 30)
4 4 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION PERSONAL Reputation Word of Mouth Lawyers constantly communicate with one another and share information Most expert witnesses would agree that the most cost-effective, time-efficient, and least offensive marketing method is personal reputation; that is, word of mouth. As former trial lawyers, this point was driven home time and time again to the authors at depositions of experts. All of the lawyers would file in dutifully and then two, three, or more hours of intense questioning of the expert would follow. Steve Babitsky, President of SEAK, and co-author of The A-Z Guide to Expert Witnessing (visit NOTES FROM THE experts STEVE BABITSKY ESQ Each time, the expert was prepared, organized, knew the facts and science cold, and testified in a cool, calm, professional manner, the same thing would happen at the conclusion of the deposition. Each lawyer would shake the expert s hand and reach over the desk and take two to three business cards for future use. This is personal reputation/word-of-mouth marketing in action. Lawyers constantly communicate with one another and share information. The first stop for a lawyer in search of an expert is usually his colleagues. If an expert does a good job on a case, lawyers will recommend him when asked, Do you know any experts in the field of...? Lawyers also frequently discuss the good and bad expert witnesses they have used. It is very common to hear advice such as, If you ever need a cardiologist, Dr. Davidson, who I deposed last week, was dynamite! from a colleague. The lesson is clear. Doing an excellent job on current cases and developing a reputation for professionalism can be an expert s most effective marketing tool. It is also extremely cost-effective in that it costs nothing. If an expert does a good job, lawyers will recommend him to their colleagues and will use him again on other cases. The converse, however, is also true. If an expert does a poor job on a case, his retaining lawyer is not likely to use him again and the word will spread quickly through the legal community. Attorneys will share information about which experts not to use as readily as they share information about which experts to use. Once the (Continued, see Word, page 29)
5 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 5 EFFECTIVE Cross-examination of an Expert Witness in a Criminal Case To effectively cross-examine an expert, a lawyer must do two contradictory things simultaneously From the most basic of misdemeanors to the most complex of felonies, lawyers routinely use expert witnesses to make their case to a jury. In DUI trials, for example, defense attorneys use experts to raise doubts about the reliability of machines used by law enforcement to measure alcohol levels in a person s breath. In domestic violence trials prosecutors use experts to explain the battered women s syndrome and why victims recant. Effective cross-examination of an expert witness in a jury trial is very difficult. To effectively cross-examine an expert, a Michael D. Schwartz is a criminal prosecutor whose responsibilities include all aspects of criminal prosecution: preparing for and conducting trials and hearings, filing complaints, taking pleas, and briefing and arguing various issues and motions, petitions for writs of mandate and prohibition, and appeals. He has served as an instructor for the Los Angeles County Bar Association s Trial Advocacy Program since OF LEGAL Interest NOTES FROM THE experts MICHAEL D. SCHWARTZ ESQ lawyer must do two contradictory things simultaneously. Experts talk in highly technical terms about complex concepts. They use words jurors have never heard and discuss concepts jurors have never considered. Cross-examination requires beating the expert at her own game, using the expert s own terms and concepts against her. Effective lawyering before a jury, however, requires the use of common, ordinary terms and simple concepts. So how does a lawyer effectively cross-examine an expert witness in a jury trial without losing the jury because of highly technical terms about complex concepts? First, get the expert to define her technical terms in common, ordinary words. Second, compare the expert s complex concepts to common, ordinary concepts so jurors can relate to them. In other words, beat the expert by getting her to translate her terms and concepts into common, ordinary ones, and then use those common, ordinary terms and concepts to do battle with her on cross so the jury can follow along. If the battle to impeach the expert is waged in technical terms and complex concepts, the expert wins because the jury does not understand the impeachment. While each cross-examination of an expert is unique to the individual case, there are some areas of cross-exam that are common to almost every case. For example, effective crossexamination includes an inquiry into the expert s prior employment as an expert, in an attempt to show that the expert is really just a hired gun whose real interest is to make money instead of helping the jury get to the truth. Most importantly, cross-examination should elicit each and every fact and assumption on which the expert s opinion is based, as well as each and every fact that might suggest a conclusion different from the expert s opinion. Get the expert to admit on cross that her opinion is only as good as the facts she assumed to be true. Then argue to the jury that the facts assumed are not the facts proved by the evidence. Immunity Extended to Court-Appointed Expert On May 7, 2009, the Minnesota Supreme Court issued its opinion in the Peterka vs. Dennis case, holding that a court-appointed expert witness hired to evaluate marital property in a divorce proceeding (in this case, the expert was also a CPA) was protected by immunity. The Supreme Court s decision, which reinstated the district court s order for summary judgment, concluded that experts appointed under [Minnesota Rules of Evidence] Rule 706 are entitled to immunity for duties performed pursuant to their appointment. This immunity extends to both the expert s report content and testimony. DM/y/ed4s0MhNgd0G5L0nQG0 EM The Minnesota Society of CPAs submitted an amicus curiae brief to the Supreme Court, and took the position that immunity should be granted to court-appointed, third-party neutral evaluators. To see the Society's update on this ruling, see: 15/DM/y/ed4s0MhNgd0G5L0nQ H0EN The full Supreme Court opinion may be accessed here. DM/y/ed4s0MhNgd0G5L0nQI0E O.
6 6 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION DEVELOP Credibility (and Clients) Through Speaking You never know who in your audience could be a prospective client Trade or Professional Meetings Presenting yourself and your ideas before a professional group can raise your professional stature in the same way as writing. If your topic is not related to litigation, include in your remarks that you engage in litigation support as a part of your services. You never know who in your audience could be a prospective client or a referral source. Expert Witness Conference Offer to speak at a conference of experts on a topic of general Rosalie Hamilton is the expert s expert on marketing. She is a consultant, coach, outsourced marketing provider and author of The Expert Witness Marketing Book. See NOTES FROM THE experts ROSALIE HAMILTON interest to all experts or on a topic in your field. The better known and respected by your peers you become, the more chances you have of being referred by a person you might not have even met personally. Attorney CLE Classes Ask attorneys what information from experts would help them with their cases, and prepare a presentation. Ask your local and state bar associations for their policy on non-attorney speakers for Continuing Legal Education and approval procedures for your presentation. For their speaking policy, you may be referred to the chairperson of the attorney section related to your expertise. If you are not furnished a list of attendees, create a reason to collect their business cards. For example, you could offer to send a copy of your presentation or an article you mention in your presentation. If you obtain permission to speak to a group of attorneys at a firm that specializes in your area of expertise, they may apply for the CLE accreditation. Even so, you will want to already be familiar with the CLE requirement forms so your presentation will be in the proper format to facilitate accreditation. Public (Community) Events Litigation is one of the socalled sexy subjects, and most people find it fascinating. Clubs, lodges and associations are continually recruiting speakers for their meetings. Volunteer to speak, and ask if they would like to hear about your experience with lawyers and the courts (the parts you can share). (Continued, see Speaking, page 29) Insurance Bad Faith Expert Clinton E. Miller, J.D., BCFE Author: How Insurance Companies Settle Cases 39 YEARS EXPERIENCE Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide Coverage Disputes Customs and Practices in the Insurance Industry Good Faith/Bad Faith Issues (408) FAX (408)
7 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 7 LEGAL Corner PROPOSED EXPERT TESTIMONY IS PROPERLY EXCLUDED WHERE EXPERTS RELIED ON UNSUPPORTED ASSUMPTION THAT MOLD EXPOSURE CAUSED PLAINTIFF'S SYMPTOMS June 4, On May 28, 2009, in the matters of Dee v. PCS Property Management Inc. the California Courts of Appeal 2nd District ruled that proposed expert testimony is properly excluded where experts relied on unsupported assumption that mold exposure caused plaintiff s symptoms. Briefly, Darcee Dee lived in an apartment complex owned by PCS Property Management LLC (PCS) and Mammoth Park Towers. In 2001, tests showed that stachybotrys, a type of mold capable of producing mycotoxins, was present in Dee s apartment. Dee sued PCS and Mammoth Park Towers, claiming that the mold caused her to suffer numerous ailments and increased the risk of cancer. At trial, Dee proposed to include testimony from her treating physicians that her numerous ailments were caused by exposure to mycotoxins. However, the trial court excluded the experts testimony under Evidence Code Section 801 on the grounds that there was no reasonable basis for their opinions. Although the experts testimony was limited, they testified that Dee s symptoms were consistent with mold exposure. The jury found that the defendants were not negligent. The Court of Appeals affirmed and found that Section 801 limits the expert witness testimony to matters personally known to him that may be reasonably relied upon by an expert of that field in forming an opinion. An expert witness opinion based on assumptions of fact has no evidentiary value and should be excluded from evidence. In this case, Dee s treating physicians sought to testify that Dee s exposure to mycotoxins caused her symptoms and made her susceptible to cancer. Although the stachybotrys in Dee s apartment was capable of forming mycotoxins, no conclusive evidence as to Dee s actual exposure to mycotoxins existed. Thus, the court found that the opinions of Dee s treating physicians were based on assumptions of fact and the exclusion of their testimony was proper. Partial Publication was granted. DO YOU have a link from your website to FEWA s? Did you know that reciprocal links on your/our websites can help BOTH sites with search engine rankings? Contact our office to get a FEWA logo to place on your website
8 8 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION ORANGE COUNTY CHAPTER FALL SEMINAR: TUESDAY, SE WEB 2.0 FOR EXPERT WITNESSES Developing an online marketing strategy for your expert witness practice WEB 2.0 sem INTRODUCTION TO NEW MEDIA If you are interested in developing a strong online marketing presence, FEWA Orange County Chapter brings you up to speed in the latest realm of Web 2.0. If you want to start a blog; build a Web page to capture and organize RSS feeds; market and promote your expert witness practice online through social media websites like Twitter, Facebook and Linked In; this is the one-day workshop you can t afford to miss! THIS CONFERENCE WILL ANSWER THE FOLLOWING QUESTIONS How can I use Web 2.0 tools for marketing my business? How can I use a Web 2.0 tools for increasing my reputation as an expert witness? How will my use of Web 2.0 tools and communications via the World Wide Web be interpreted by opposing counsel? How will my online communications be subject to examination? How do I customize a Google Reader account to deliver to me RSS feeds in one organized location? TIMETABLE VENUE RADISSON HOTEL MACARTHUR & BIRCH NEWPORT BEACH, CALIFORNIA 8:30 AM Sign-in & Continental Breakfast 9 10:30 AM Developing a Blog 10:30 AM 12 PM Legal Aspects of Online Communications 12 1:15 PM Lunch [included] 1:15 2:45 PM Using Google Reader to Capture RSS Feeds 2:45 4 PM FEWA Panel COMPLETE BROCHURE & RSVP AVAILABL
9 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 9 PTEMBER 15, 2009 inar INTERACTIVE, HANDS-ON INSTRUCTION You will receive a full day of live, interactive and hands-on instruction so you walk away fully equipped to market your business using this new Web environment the very next day! Attorney- and Web expert-led discussions will help you reap all the benefits of building your exposure as an expert witness as well as navigate any pitfalls that can be encountered when you communicate in this public forum. You will gain a legal perspective on how the information you communicate publicly on the Web through your blog, tweets, or Linked In resumé can be used by opposing counsel and subject to examination in court. You will work in a classroom setting directly on your wireless-enabled laptop you bring to the conference to immediately implement these tools in your expert witness practice. Create your own blog and configure Google Reader to capture RSS feeds throughout the World Wide Web in an interactive, hands-on workshop led by social media expert, instructor and past FEWA speaker Ron Ploof. Our own FEWA board members and early adopters form a three-member panel to discuss their specific experiences and offer helpful suggestions and strategies to maximize these exciting new technologies into your expert witness practices. Do not miss this unique opportunity to incorporate these no-cost tools into your business and dramatically increase your marketing exposure without adding a single penny in expenses (well except for the extremely low early-bird fee of $195 with lunch, Web access, technical support and parking included). ABOUT RON PLOOF During his 25 years in the high tech electronics industry, Ron Ploof became fascinated with the relationship between people and their communications technologies. In 2005, he joined a community of independent content creators who wrote blogs, recorded podcasts, and produced online video. The community led him to social networking sites such as Facebook and Twitter. Convinced that these new technologies would change traditional business communications forever, he founded OC New Media, LLC, a consulting firm dedicated to helping executives understand the unique characteristics of these new media channels and develop a strategy for incorporating them into their corporate communications practices. Ron is widely interviewed in local and national media, and he regularly speaks on new media communications. ABOUT DENISE HOWELL ESQ Denise Howell is an appellate, intellectual property, and technology lawyer who has handled matters for a wide variety of clients, including Internet, video game and bioscience companies, real estate developers, professional sports teams, manufacturers, distributors, PR/marketing and other professional service providers, financial institutions, and non-profit organizations. Over the past 15 years she has helped clients navigate the bleeding edge of technology law, including the legal considerations surrounding all forms of online publishing and syndication, digital copyright, digital rights management, and Internet jurisdiction. Denise hosts law-related weblogs and podcasts, probing areas where technology and society intersect in ways that present new, unique, or difficult issues under existing and developing law. She publishes and speaks regularly on these legal issues. E ONLINE AT
10 10 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION Meeting Location: Location varies each month. See details with descriptions, at right. Time: 6:00 PM Networking 6:30 PM Dinner & Program Costs: $50 Member $60 Non-member LOS ANGELES Chapter Meetings-at-a-Glance JULY 16 Location: Program: Courtyard Marriott Environmental Contamination and Big Business 6333 Bristol Parkway Over 3,000 legal cases, most of them involving litigation against Culver City, CA large companies that cause environmental pollution State and federal law relating to regulation of environmental toxins and carcinogens Synopsis of a few of Mr. Dunlop s more interesting cases, his experiences in working with different experts, and what makes effective experts and poor experts in the cases he has worked on Speaker: Mr. William Dunlop, B.S., J.D Chairman of the Board, Environmental World Watch Company William Dunlop, a long-time citizen of California, earned a B. S. in Environmental Sciences at the University of California at Los Angeles.and a J.D. at UCLA. He has worked actively in the area of environmental contamination with toxic chemicals. He and his company, Environmental World Watch (EWW), have conducted over 3,000 cases against companies that have polluted the environment with toxic and/or carcinogenic chemicals. Many of these legal cases involved Proposition 65 Legislation under The Safe Drinking Water and Toxic Substances Enforcement Act in the State of California. Dunlop serves as an Environmental Investigator, and he works with many different types of expert witnesses environmental toxicologists, cancer experts, carcinogen and toxin risk assessment experts, environmental remediation experts, and analytical chemists and attorneys in the cases he leads. Please note: Non-members must pay in advance and may attend only four times per year. Noshows will be billed. Cost is an additional $10 at the door without reservations.
11 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 11 The Status Quo Must Not Be Embraced As we enter into the summer months and closing out the second quarter of the year, I am very gratified with the interest of the professionals I come in contact with about joining FEWA. There appears to be a swell of interest as to how specific disciplines overlap into areas that are perhaps unconventional. When you are in the throes of a case, and analyzing the nuances of the facts, these unrelated disciplines leap out and assist in the complete analysis of the facts at hand. As I talk with these professionals, they develop a thirst for continued knowledge and LOS ANGELES CHAPTER president TIMOTHY T. WILLIAMS, JR. training to broaden their areas of expertise into areas they thought not otherwise possible. This has motivated me and the current board to provide speakers at our bi-monthly meetings that will get us out of our comfort zones and be exposed to possibilities that will expand our respective practices and embrace new fiscal heights. Attorneys as well as the courts are looking for that special quality in their experts that is away from the norm. A case in point, a federal judge recently found an expert in a certain field not qualified, because they lacked the requisite administrative training and background in their area of expertise. If one plans on being competitive and recognized by the courts, the status quo must not be embraced. There may be initial discomfort, but the possibility of growth and development will act as the Novocain for complacency. LOS ANGELES CHAPTER 2009 Officers President Timothy T. Williams, Jr. Vice President Franklin L. Dumas Secretary John Cosgrove Board Members Phillip Feldman, Esq. B.J. Hawkins, PhD Joseph R. Landolph, Jr., PhD Bruce G. Silverman Immediate Past President Eric Robi National Board Representatives Timothy T. Willians, Jr. Franklin L. Dumas Chapter Committees Programs John Cosgrove Membership Joseph R. Landolph, Jr., PhD Bruce G. Silverman Eric Robi
12 12 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION Meeting Location: Radisson Newport Beach Birch & MacArthur Blvd. Newport Beach, CA Time: 5:30 PM Networking 6:00 PM Dinner & Program Costs: $45 Member $60 Non-member ORANGE COUNTY Chapter Meetings-at-a-Glance JULY 20 Program: What Makes for an Effective Expert Witness from the Standpoint of the Arbitrator, or Non-judicial Neutral. How does the arbitrator look at the expert differently than a judge might? Conversely, how should an expert prepare differently for arbitration than for court? How are discovery and evidentiary rules affected? Most importantly, what are the pitfalls we should avoid from the stand point of the arbitrator? George Calkins is an engaging speaker and highly experienced professional who will address all of these issues and much more. Speaker: George D. Calkins II, Esq., JAMS Santa Monica George D. Calkins II, Esq., is a nationally recognized mediator and arbitrator with more than 35 years of legal experience, including two decades as a neutral. He has presided over thousands of complex ADR proceedings involving diverse legal and factual issues and partnered with the courts to resolve numerous complex cases. Calkins is well respected for his knowledge and innovative settlement strategies in resolving business/commercial, engineering and construction, insurance coverage, partnerships, professional negligence, real estate, surety ship, and related disputes. AUGUST Dark SEPTEMBER 21 Program: The Expert Witness Role Advocacy or Neutrality What is the proper role for the expert witness to be an advocate for their client, or to be a neutral entity? How does this affect the role the expert has in analyzing the case, preparing reports, considering opposing experts, communications with the attorney, testifying in mediation, deposition, and trial? This is an often-discussed topic among experts, and in this meeting we will have a panel discussion by experts who will present very different views on the topic, discuss and debate these issues of importance to all experts. Speakers: Panel of Experts Please note: Non-members must pay in advance and may attend only four times per year. Noshows will be billed. Cost is an additional $10 at the door without reservations.
13 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 13 Learn to Market Your Business with Web 2.0 Techniques Two of our board members, Bill Broz and Dan Eberhart, have moved to the Los Angeles area and needed to go off the Orange County board. They both plan on being active in the L.A. chapter I would like to thank both for their dynamic professionalism and excellent work on our board. It is rewarding to have board members who are so dedicated to furthering the FEWA mission. Good luck to both of you! The Orange County chapter has been going strong with good attendance at our dinner meetings. We are planning a Web 2.0 workshop for September 15. We strongly encourage everyone to attend. If you want to start a blog; build a webpage in minutes to capture and organize RSS feeds; market and promote your expert witness practice online through social media websites like Twitter, Facebook and LinkedIn; this is the one day workshop you can t afford to miss! This conference will answer all the following questions: How can I use a blog for marketing my business? ORANGE COUNTY CHAPTER president RICHARD SQUAR How can I use a blog for increasing my reputation as an expert witness? How will my blog be interpreted by opposing counsel? How will my blog or other online communication be subject to examination? How do I customize a Google Reader account to deliver me RSS feeds in one organized location? You will receive a full day of live, interactive and hands-on instruction so you walk away fully equipped to start using this new Web environment the very next day! Attorney- and web expert-led discussions will help you reap all the benefits of building your exposure as an expert witness as well as navigate any pitfalls that can be encountered when you communicate in this public forum. You will gain a legal perspective on how the information you say publicly on the web through your blog, tweets, or linked-in resume can be used by opposing counsel and subject to examination in court. You will work in a classroom setting directly on your own wireless laptop you bring to immediately implement these tools in your expert witness practice. There are two interactive, hands-on workshops led by social media expert, instructor and past FEWA speaker Ron Ploof to create your own blog and configure your own Google Reader to capture RSS feeds throughout the World Wide Web. Our own FEWA board members and early adopters form a three-member panel to discuss their specific experiences and offer helpful suggestions and strategies to maximize these exciting new technologies into your expert witness practices. Do not miss this unique opportunity to incorporate these no-cost tools into your business and dramatically increase your marketing exposure without adding a single penny to expenses (Well except for the extremely low earlybird fee of $195, with lunch, Web access, technical support, parking included.) ORANGE COUNTY CHAPTER 2009 Officers President Richard M. Squar Vice President George Reis Secretary Robert Rowe Board Members Robert A. Grayson, PhD Geoffrey Hichborn, Sr. James Lineback, MD Adam Minow Immediate Past President Geoffrey Hichborn, Sr. National Board Representatives Geoffrey Hichborn, Sr. Richard M. Squar Chapter Committees Programs George Reis Membership James Lineback, MD Newsletter/Communications Richard M. Squar Public Relations Robert A. Grayson, PhD Geoffrey Hichborn, Sr. Education Adam Minow
14 14 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION Meeting Location: Please note: new location DoubleTree Hotel 2001 Point West Way Sacramento, CA Time: Please note: new time 7:30 AM Networking 8:00 AM Breakfast & Program Costs: $30 Member $40 Non-member SACRAMENTO/SIERRA Chapter Meetings-at-a-Glance JULY 22 Program: Testifying in Arbitration: A JAMS Arbitrator s Expectations Pointers for expert witnesses Mistakes to avoid and how to avoid impeachment NEW LOCATION! NEW TIME! What s important to the arbitrator: differences between arbitration and trial court testimony Speaker: Honorable V. Gene McDonald, former judge; arbitrator from JAMS Retired Judge McDonald has been a JAMS panelist since From 1976 to 1997, he was judge of the San Mateo County Superior and Municipal Courts. Judge McDonald has presided over the resolution of thousands of civil cases. Please Note: Sacramento/Sierra chapter will now hold breakfast meetings, starting in July. The new meeting venue is the DoubleTree Hotel Sacramento, 2001 Point West Way. The hotel is offering rooms at a discount for FEWA members; contact the hotel directly if you need room reservations. Please note: Non-members must pay in advance and may attend only four times per year. Noshows will be billed. Cost is an additional $10 at the door without reservations.
15 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 15 The Heat Is On! Summer in the Sacramento Valley is hot and laborious, and so is the Sacramento/Sierra chapter board. We have heard from the local membership and followed their request for a change in meeting venue as well as a change of meeting time. Thus, commencing in July, the Sacramento/Sierra chapter will hold breakfast meetings to enable greater member participation. Our guest speaker for the upcoming breakfast meeting on July 22 will be the Honorable V. Gene McDonald, a JAMS panelist and retired Superior Court judge. It is our understanding that Judge McDonald participated in a San Francisco dinner meeting, earlier in the year, to great reviews. So, for those of you SACRAMENTO/SIERRA CHAPTER president LISA SUHONOS residing in other geographical areas, here is another chance to experience the hot weather in Sacramento and hear Judge McDonald s presentation while visiting the state s capital. Membership recruitment continues to be our priority as well as development of a local seminar program for the fall season. Ongoing members report financial caution in regards to FEWA s event costs due to competing associations, distances traveled and present economic conditions. Therefore, the Sacramento/Sierra chapter board listened attentively, and is promoting network activities and mentoring to assist members. Mentoring is the most effective way to provide professional guidance and ensure success. Those of you who are developing your forensic business will find that the older and more experienced experts are a great resource for your growth. The FEWA meetings, FEWA educational programs and the FEWA membership network, combined with active mentoring, provide the best and most comprehensive educational opportunity for learning the forensic business. So, come join us on July 22 for an educational experience that will open new venues of income and allow exploration into another professional possibility of income. SACRAMENTO/ SIERRA CHAPTER 2009 Officers President Lisa Suhonos Vice President Gary H. Hall Secretary Lori E. Mote Board Members Manuel C. Jardin William F. Naber Marcel Verdooner National Board Representatives William F. Naber Lisa Suhonos Chapter Committees Education William F. Naber Membership Marcel Verdooner
16 16 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION Meeting Location: Hilton Mission Valley 901 Camino del Rio South San Diego, CA Time: 6:00 PM Networking 6:30 PM Dinner & Program Costs: $53 Member $63 Non-member SAN DIEGO Chapter Meetings-at-a-Glance JULY 28 Program: The Attorney s Frontline: Working Effectively with the Paralegal Part II The May program was very well received and provided valuable information for experts. The program was so packed with information that the speaker was only able to cover half of the intended program in the time allotted. July s program will be Part II and will include a brief overview of Part I for those who missed the May program. A paralegal s perspective on how experts can develop a cooperative relationship with attorneys by understanding rules of evidence, legal privileges, expert/client communications, and effective preparation of the expert s job file. Learn about new technology now being used by the legal community, and some of the pitfalls that can trap unwary consultants and experts, as well as how effective teamwork with the paralegal can help make your case Speaker: Janae Long, Founder, Long Paralegal Business Services Janae Long specializes in planning and execution of forensic investigations, trial preparation and trial presentation. She provides services to both attorneys and experts, including mediation preparation, presentations, legal research (both domestic and foreign), codes and standards research, preparation of court-ordered inventories, site investigation documentation and photography, and coordination of due diligence inspections. Long received paralegal certification from the University of San Diego and is currently serving as a consulting editor for a national maintenance manual, while also preparing for International Code Conference certification (formally ICBO) for international building codes. AUGUST Dark Please note: Non-members must pay in advance and may attend only four times per year. Noshows will be billed. Cost is an additional $10 at the door without reservations. SEPTEMBER 29 Program: New Electronic Discovery Laws and Their Effect on the Expert Witness What is electronic discovery? Recent and proposed changes in federal/state law that have a dramatic effect on the rules of discovery Best Practices for handling case documents and working files How attorneys and forensic data specialists find the smoking guns with electronic discovery Speaker: Dan Kinney, FCCE, CDIA+ Director, Legal Reprographics, Inc., San Diego Dan Kinney will provide a live demonstration of how various search platforms are used to search out documents from electronic files and data storage systems. LRI has been supporting electronic discovery projects for nearly six years what seems like generations ago by today s industry standards. LRI s consultants have spent hours in training, earning Administrator and Software Training certifications in a number of major discovery software applications. LRI is able to process ediscovery and support advanced culling, native review, full tiff conversions and near duplicate detection.
17 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 17 Dealing with Change We are all pattern setting creatures. We naturally settle into routines and traditions in both our personal and business lives. Whether it is how we prepare our coffee in the morning, the route we take to work, or our routine we go though to prepare for a deposition, we seem to gravitate toward routines and patterns. We take comfort in the predictability. When we are in our routine, we don t have to think about these simple details, allowing us to focus more mental energy on the dynamic, unpredictable and less familiar things. It seems that as we age our lives become more predictable and we probably take more comfort in the routines and traditions we have become accustomed to. Also as we age, we find it more difficult to deal with change and we tend to take fewer risks. With youth we have the feeling we are invincible and that we will rise above any risk and overcome it, but as we age we feel we have more to lose, more at risk and less time to recover from a risk when things don t work out. In youth we haven t learned all the downsides of our actions SAN DIEGO CHAPTER president TED E. BUMGARDNER yet, and as we age we come to realize all that can possibly go wrong. The unplanned changes in life can be unsettling, uncomfortable and stressful for most people. We are experiencing unprecedented political, economic, social and technological change, and overwhelming national and international security issues coupled with critical environmental threats. With the repercussions that manifest in our daily and business lives, there is no shortage of change related stress out there! One thing life has taught me, though, is that with every challenge there is an opportunity, with every set back there is a new path forward, and with every lemon there is the prospect for a cold, tasty glass of lemonade. Sure, as we age, change is more difficult to digest but every day we get older, we get smarter and better equipped to deal whatever curveballs life throws us. As we age, we accumulate more friends, more resources and more tools to deal with anything that comes along. Positive energy, however, is the most powerful resource we can have to overcome any adversity. It is positive energy that allows us to see through the cloud of negativity that tends to attach to life s challenges and it is positive energy that allows us to see all the possibilities that lie ahead. There is so much to be positive about. We will look back on this time in history as being a major catalyst for substantial progress forward and as an incubator for great opportunities. Stocks and real estate acquired in this time will someday be seen as some of the best vintage ever and technologies developing in this time will substantially change our future world for the better. So meet all challenges with positive optimism and find the opportunities behind every change. SAN DIEGO CHAPTER 2009 Officers President Ted E. Bumgardner Vice President David Neagley Secretary Diane Ballard Board Members Robert Fennema David M. Plourd, MD Samuel Sami, PhD Robert R. Stowell Immediate Past President Ted E. Bumgardner National Board Representatives Ted E. Bumgardner David Neagley Chapter Committees Programs Robert Fennema David Neagley Membership David M. Plourd, MD Samuel Sami, PhD Robert R. Stowell Public Relations Ted E. Bumgardner Newsletter/Communications Diane Ballard Lydia Morales Bar Liaison Robert E. Heckel, Esq.
18 18 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION Meeting Location: Location varies each month. See details with descriptions, at right. Time: 6:00 PM Networking 6:30 PM Dinner & Program Costs: $50 Member $60 Non-member SAN FRANCISCO Chapter Meetings-at-a-Glance JULY 15 Program: An Expert Witness Battle in the Trenches of a Patent Infringement Litigation: Cornell University v. HP, Western District of NY, 2008 A review of a patent litigation case from the point of view of the expert witness. This case is notable for its very large monetary element and for its unusual development. Location: Scott s Seafood 2 Broadway Jack London Square Oakland, CA Speaker: Irving S. Rappaport, Esq., Patent Attorney, Inventor, Entrepreneur, Co-Founder IP Checkups Irving Rappaport s career as a licensed patent attorney spans over 40 years, serving as IP department head at large corporations such as Raytheon, Apple, National Semiconductor, Intel, Medtronics and Data General. He has served as an expert in over 30 IP litigation cases. Last spring Rappaport s testimony on patent licensing helped secure a jury verdict for Cornell University over HP in a patent infringement case of $184,000,000 in royalty damages. AUGUST Dark SEPTEMBER 9 Program: Web 2.0 Tools and How to Use Them to Best Advantage A review of the more popular Web 2.0 tools available, how they work, and how to use them to improve your efficiency in communications Speaker: John Larkin, CPA Location: Stanford Park Hotel 100 El Camino Real Menlo Park, CA John Larkin is the director of communications for the California Society of CPAs, where he developed a number of Web 2.0 tools to enhance membership. He is currently the director of distance learning, overseeing, expanding, and improving the organization s webcast offerings. Please note: Non-members must pay in advance and may attend only four times per year. Noshows will be billed. Cost is an additional $10 at the door without reservations.
19 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION 19 Benefits of Expert Advice In the last newsletter I wrote about the opportunities that the current adverse economic conditions present. Whatever medium you use to connect to the rest of world, whether you read newspapers, or listen to the radio, or watch television, of surf the Internet, you cannot fail to learn about the economic crisis, weakness in our banking industry and the credit crunch, the providing adequate health care, the progress of military campaigns, or the difficulties faced by millions of home - owners. In our efforts to correct the deficiencies of the current times, we have the opportunity to change things and make them better than they were before the current challenges presented themselves. One way to improve our own individual situation is to redouble our efforts to reach out to former clients and to keep reminding them of our skills and experience. While doing just that, I was recently in contact with a former client, Justin Boyce. Justin hired me as an expert in a patent infringement matter, a complex interlocking campaign of suit and countersuit over IP in the wafer processing industry. Justin was SAN FRANCISCO CHAPTER president DAVID EIMERL, PHD in fact my first significant case. My association with Justin lasted several years and involved many depositions and expert reports. At that time, I was a relative novice to the legal system, and my experience with Justin was a tremendous education in the ways and means of the law, and, of course, of lawyers as well. Besides learning first hand about many aspects of patent law, I was also exposed to the techniques and thinking of lawyers and litigators. Since that time I have learned about the law mostly by participating as an expert in several lawsuits, sometimes in lasers and optics, sometimes in the wafer processing sector and occasionally in laser injury matters. Each case was different and offered the opportunity to learn more about the processes of the legal system. Throughout this learning experience I find myself always looking over my shoulder and seeking advice from attorneys, because I am acutely aware that there is much about the legal system and litigation strategy that I have yet to learn. Through FEWA, I have had the opportunity to learn by the gentle process of listening to a speaker over a pleasant dinner, rather than in the rough and tumble of learning by doing. We have learned about different roles of the expert, such as Grand Master or being a courtappointed advisor to the judge rather than as an expert hired by an attorney. We have heard from attorneys about their requirements for an effective expert. It has been particularly eye-opening to hear a speaker describe the legal process from the point of view of the bench, through the eyes of the judge. Another, perhaps necessary, skill which can be learned through education is how to handle cross-examination from the opposing attorney. The meetings and conferences organized by FEWA represent a great opportunity to learn and become a more effective participant in our legal system. By supporting FEWA and its activities we are also giving something back to those who have helped us in the past by helping those who follow. SAN FRANCISCO CHAPTER 2009 Officers President David Eimerl, PhD Vice President Steven G. Burgess Secretary Joseph Quilici Board Members Jerry A. Klein Glen Peterson Stephen M. Reiss Glen Balzer (non-voting) Immediate Past President Mark C. Hunter National Board Representatives Glen Balzer David Eimerl, PhD Chapter Committees Programs Jerry A. Klein Stephen M. Reiss Membership Glen Balzer Steven G. Burgess Randy A. Sugarman Public Relations Mark C. Hunter Newsletter/Communications Dru Anderson Stephen M. Reiss Bar Liaison/Public Relations Joseph Quilici
20 20 THE QUARTERLY NEWSLETTER OF THE FORENSIC Expert Witness ASSOCIATION Meeting Location: Location varies each quarter. See details with descriptions, at right. TEXAS Chapter Meetings-at-a-Glance Time: 8:00 AM Sign-in & Breakfast 9:00 AM 4 PM Full-day Program Costs: $225 Member $250 Non-member Continental breakfast and lunch are provided JULY 17 Full-day Seminar: What Clients Want from Construction Defect and Environmental Experts Making a construction expert s testimony understandable to a jury Demonstrative evidence in the courtroom In-house testimony vs. retained expert witness services Tips for testifying Construction defects & environmental issues Environmental cases Speakers: R. Kelly Donaldson, Esq, Orgain, Bell & Tucker LLP Jim D. Wiethorn, PE, Haag Engineering, Failure & Damage Consultant Robert G. James, PE, ACCUMYN Consulting Robin D. Franks, TGE Resources, Inc. Patrick W. Mizell, Esq, Vinson & Elkins Don Richie, Esq, Richie & Gueringer, PC James E. Smith, Esq, Beirne, Maynard & Parsons LLP Location: Woodlands Waterway Marriott 1601 Lake Robbins Drive The Woodlands (Houston), TX Visit the Calendar section at for a complete description and RSVP for this full-day seminar. Please note: Non-members must pay in advance and may attend only four times per year. Noshows will be billed. Cost is an additional $10 at the door without reservations.
RESUMÉ BOYD S. LEMON Attorney and member of the California Bar since 1966; member, Bar of the United States Supreme Court, various United States Courts of Appeals, United States District Courts and United
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