9/20/2015

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WORKING WITH EXPERTS

RETAINING AN EXPERT: DEFINE YOUR NEED

• To the extent you can, try and educate yourself on the expert’s subject.

• Try and fully define your reason for needing an expert: establish

their scope of work – What questions are you trying to answer?

– Is the matter a highly technical issue or of a more general technical nature?

– Testifying or consulting expert?

– Is the matter in litigation or likely to one day be in litigation?

SOURCES FOR FINDING EXPERTS

• Ask other experts that you trust (like Warren!)

• Consult a company list of experts if you have one

• Word of mouth / Ask trusted collogues

• Use an expert database from resources like the NCADA or DRI

• Use an internet search

• Use a service that matches experts to clients

• Committee members on standards committees

• Ask your client / insured

• Should you use employees of your client / insured?

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FACTORS TO INITIALLY EVALUATE AN EXPERT

• Education

• Training

• Accreditations

• Experience: Forensic and Non-Forensic

• Experience in deposition and trials

• Ability to communicate

• References from other attorneys

• Consult databases like NCADA or DRI

• Interview the expert (consider video interview)

• Verify that the expert and his firm have no conflicts

• Is the expert licensed in the state?

• Mix of plaintiff / defense work

WORKING WITH MULTIPLE EXPERTS

• Coordination between Experts

• Layering of Experts

EXPERT METHODOLOGY

• Work with your expert to ensure that his / her methodology is robust.

• Tested

• Peer reviewed and published

• Known or potential error rate

• General acceptance

• Example NFPA 921, Guide for Fire and Explosion Investigations

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CASE STUDY: EDUCATION VS METHODOLGY

• What is more important, the education levels

achieved by an expert or the methodology that

they use?

Analysis of a Double Fatality Fire Allegedly Caused by a

Portable Electric Heater:

How Poor Methodology can Lead to the Wrong Conclusion

Circumstances of the Incident:

• Family of four – 2 adults and 2 children.

• RV temporary weekend residence.

• Using portable electric heaters.

9/20/2015

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Camper Diagram

Parents

Sleeping

Children in

Bed over

Cab

• Early Morning Fire

• Two Adults Injured

• Two Children Died.

Children’s Bed

Couch

Cab

Municipal Investigation:

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Municipal Investigation Conclusions:

• The heater somehow tipped over. Lacking a tip-over switch it ignited flooring.

• Conclusions based on the burn

patterns on the floor. • No further excavation or dig

out was performed. No other investigator examined scene. No electrical circuits were traced and no arc-mapping was performed. Survivors not interviewed.

• The heater was preserved as evidence. The RV was hauled to a dump.

Legal Action:

• Complaint filed against distributor of heater.

• Plaintiff’s counsel hires engineering expert, PhD professor from __.

• Joint evidence exam scheduled.

• Plaintiff’s expert conducts testing and issues report.

Joint Lab Examination of Heater

• No internal arcing found.

• Coil resistance normal.

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Plaintiff Engineer’s Conclusions: • The “brittle” “acrylic” arm of

the tip over switch broke and prevented switch actuation.

• Defective air flow design prevented one shot thermal fuse actuation

• Heater tipped over and ignited

the flooring.

• Conclusions based upon the burn patterns in the scene photographs and fire that occurred during his testing.

Exemplar Testing at Warren

Temperature

Data Logger

Variable

Voltage

Transformer

Ammeter

Voltmeter

Exemplar Tip-Over Testing

Tip-over switch actuates at

approximatly48°

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Exemplar Temperature Testing

Thermocouples

attached front and

rear with ceramic

cement

Exemplar Endurance Testing

End Game:

• Testing showed only way to cause a fire was by heating element fracture.

• Subject heater had intact element.

• Deposed opposing expert

• We asked to see opposing experts testing heater

• Case settled

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Poor Methodology / Analysis by

a Highly Educated Expert =

Unreliable Conclusion

COMMERCIAL DETAILS

• Have the initial case information at hand: location and date of loss

and involved parties, site contacts, etc..

• Understand the experts hourly fees and other expenses they may

charge.

• Does their rate vary for different tasks?

• Do they have a letter of agreement? Is it mandatory and can you or your client sign it?

• If needed, you can ask for a budget based on a certain scope of

work.

• Discuss your time constraints in a very clear and specific manner

• Discuss your scope of work in a very clear and specific manner.

• Discuss who will be paying the experts invoices

SCENE WORK

• Preserve the scene and the evidence!

• Get your expert there ASAP.

• Visit the scene with your expert if possible.

• Discuss the need for protocols for field work or evidence exams with

your expert.

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DISCOVERY/COMMUNICATION WITH EXPERTS

• Discuss methods of communication with your expert.

• FRCP 26 (b)(4)

• NCRCP 26(b)(4)

• 2015 Amendment to NCRCP 26(b)(4) – applies to actions

commenced on or after October 1, 2015.

DISCOVERY WORK

• Ask your expert what he /she needs to do their job. – Documents

– Drawings

– Site visits

– Exemplars

– Testing

– Answers from involved parties.

– FOIA requests

DISCOVERY WORK

• Get quality documentation and photos. • Send us the exhibits to depositions

• Send us the whole deposition

• Send us best quality photographs, preferably high resolution digital

• Send us color photographs if you only have hard copies.

• Send us indexed information if you have it.

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DISCOVERY WORK – CASE STUDY

• Ask your expert what he /she needs to do their job.

• Get quality documentation and photos.

• Listen to the expert.

DISCOVERY WORK

• Get your expert’s help in formulating deposition questions for fact

and expert witnesses.

• Make sure you understand the question and keeping asking until

you understand the answer.

SCHEDULING

• Inform your expert of your scheduling requirements. Don’t wait until

the last minute!

• Case lost for missing scheduling dates for experts.

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EXPERT REPORTS

• Do you need or want a formal report?

• Timing of reports.

• Creating reports. Good reports take time.

• Types of reports.

• Federal requirements

• State requirements

EXPERT DEPOSITIONS

• Prepare for depositions with your expert.

• Be sure that you have given the expert all related discovery materials in time for adequate preparation.

• Support your expert before and during the deposition.

MOTIONS TO EXCLUDE AN EXPERT

• Attorney and Expert should be prepared for a motion to exclude. It

may be too late to address problems once a motion has been filed.

• As early as possible, inform your expert of any legal requirements

that must be addressed in their work.

• Inform the expert and get their help defending the motion.

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TRIALS

• Tell your expert as soon as possible of trial dates. Also inform them

ASAP if the dates change.

• Prepare for trials with your expert. Practice!

• Where appropriate, have expert involved with creating demonstrable

evidence.

• Support your expert during the trial.

FINAL WORD

• COMMUNICATION!