Update to Florida’s “Hired Gun” Bill
As we previously reported, the Florida House of Representatives recently passed a bill aimed at reducing the number of “hired guns” who testify as expert witnesses. The bill has since moved on to the Senate where some notable adjustments have been made. An amendment issued March 8th allowed for elements of the current Frye standard while incorporating the Daubert method in other areas. According to one court observer:
According to bill analysis, the amended version of the bill would allow “established science” to be subject to a Frye standard, while “new and emerging scientific testimony” would be subject to a Daubert standard. The amended bill also seems to give large leeway to courts in making a determination regarding which standard to choose.
The amended bill has now returned to the House for approval. If enacted, it could go into effect as early as July 1, 2012, however many legal analysts note a similar bill making its way through the Florida government last year eventually died in the Senate in May. For now, the potential impact on expert witnesses in Florida remains to be seen.
Seven Expert Witnesses Could be Jailed over Lying in Court
An interesting news article just popped up on BBC News. As many as 20,000 court cases in Great Britain could be re-tried due to alleged perjury by seven expert witnesses. The experts who worked for Autofocus, a research company focused on rental car rates, allegedly faked rental rates to support claims by insurance companies that they had been over charged by car rental agencies. One expert has already admitted to wrong-doing:
Helen Whysall from Nottingham was given a 28-day suspended sentence after a court heard she lied about calling several High Street hire car companies in order to find the going-rate for the hire of a top-end Mercedes car which would only have been available at a small number of companies.
The case was brought by Steve Evans of car rental company Accident Exchange after he repeatedly faced accusations by insurance companies that he was overcharging for reimbursements of cars rented to auto accident victims. Mr. Evans petitioned for access to Autofocus data and found that:
After examining Autofocus company data, Mr Evans says he discovered about 20,000 cases affecting about 40 different credit-hire firms where he believes data has been faked. Some 5,000 of the cases concern Mr Evans’ company, Accident Exchange.
As a result of the release of the computer data, a further seven Autofocus employees are now facing similar contempt proceedings after a High Court judge agreed to allow a case against them to proceed.
As noted in the article, the implications of these perjury allegations could be far-reaching:
Martin Andrews of the Credit Hire Organisation said if the scale of the case proves to be as big as Mr Evans’ evidence would suggest, it would have major implications for the insurance industry.
He said Mr Evans’ company and others like it could have lost many millions of pounds in disputed claims and associated court costs as well as jobs.
To read the complete article, click: Expert witnesses accused of ‘industrial scale perjury’
As you know, Courtroom Insight was founded to bring instances such as this to light. Make others aware of bad-behaving expert witnesses, mediators, arbitrators and judges by reviewing their performance at www.courtroominsight.com.
Article Source: Expert witnesses accused of ‘industrial scale perjury’ by Shari Vahl. 9 March 2012. http://www.bbc.co.uk/news/business-17264344
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A new bill was considered in Maryland this past Tuesday that would allow private mediation proceedings to have a guarantee of confidentiality.
The current law in Maryland guarantees confidentiality only within court-ordered mediation. Those who proposed this new bill wish to have formal laws that explicitly state that this guarantee applies also to private mediation. As Roger Wolf of the Center for Dispute Resolution at the University of Maryland Francis King Carey School of Law states,
“Currently the confidentiality of private mediation is often presumed but not guaranteed under Maryland Law. A judge would have authority to compel a private mediator’s testimony if the case went to trial. The legislation would bring certainty in an area where there is uncertainty.”
The bill, The Maryland Confidentiality Act (Senate Bill 865), would effectively forbid discussions, including admissions and apologies, that are made during private mediation sessions from being revealed in the courtroom. The only exception is information that poses a threat to someone’s health or safety if not disclosed, which is left up to the judge’s discretion.
No one testified against the bill during the committee hearing. Veteran mediator, Stephen E. Moss, however, expressed his concern with a provision that would define a mediator as someone “who had completed at least 40 hours of mediation training.” Moss also stated that,
“An unhappy party might argue that the mediation was not covered by the confidentiality provision because the mediator lacked the requisite training…This [40-hour requirement] is making this a bad bill. Somebody is going to litigate this issue. There can be a danger. We have to have some kind of standard here.”
The bill’s sponsor, Senator Jamin B. Raskin, responded that,
“Lawyers may be mediators, even without the training, thus creating a bright-line standard.”
We will be sure to keep you posted on the status of this bill. If you have any experience working with private or public mediators in Maryland and would like to write a review on their work, please visit our directory of Maryland mediators here. To read the complete article in The Daily Record, please click here.
Lash, Steve. Bill Would Add Private-Mediator Privilege The Daily Record. February 28, 2012.
The Fine Line Between Judges and Arbitrators in Delaware
Delaware is the only state in the United States in which companies can have a case arbitrated before a sitting judge. Recently, this has caused some strife between a citizens group in Delaware and judges within the state over the legality of arbitration conducted by these state judges. This citizens group (The Delaware Coalition for Open Government), accuses the judges of conducting “secret proceedings”, saying that these “secretive” arbitrations are not publicly recorded so there is no way of knowing how many cases are being arbitrated.
The Judges responded to this accusation stating that companies will be forced to take their “private disputes to private arbitration panels” that are outside the state courts and that, as Lawrence Hamermesh, representative of the Chancery judges, says,
“The hope is that people who have decided to arbitrate will say that Delaware’s chancellors are pretty sophisticated and we should use their system.”
Paul Kirgis, a professor of alternative dispute resolution at St. John’s University School of Law, describes how the Delaware Coalition for Open Government sees the judges’ actions as a means of separating the quality of justice that citizens receive by giving certain cases preferential treatment. Kirgis stated,
“The process steps ‘toward a two-tier court system, in which the wealthy get secret justice on a fast track, while others [get] messy public processes.’”
While no official court date has been set for this case, it will be interesting to see how this issue is resolved for Delaware’s judicial system and is definitely a case to keep tabs on.
If you have any experience working with judges or arbitrators in Delaware, Courtroom Insight encourages you to review their work in our Judges Directory or our Mediator/Arbitrator Directory For information regarding our review system, please visit our website here. To read the complete articles please click here: A Judge or an Arbitrator Too?
Palazzolo, Joe. A Judge and an Arbitrator Too? Wall Street Journal Blog. February 23, 2012.
No More “Hired Guns” in Florida
In response to the growing number of “hired guns” that seem to be appearing in Florida lawsuits, the Florida House of Representatives passed a bill on Friday aiming to stop these kinds of expert witnesses from testifying in court.
This bill, #HB 243, will raise the standards for expert witness testimony from the current “Frye” standard that Florida has used for decades. According to WCTV Florida,
“With that standard, courts look at whether scientific principles and methodologies used by experts are generally accepted, according to legislative staff analyses.”
According to CBS Miami, #HB 243 introduces the “Daubert” standard, which,
“…looks at whether testimony is based on “sufficient facts or data;” whether it is the “product of reliable principles and methods;” and whether the witness applies the principles and methods “reliably to the facts of the case.”
The “Daubert” standard is currently used in federal courts however as with any bill, not everyone is in favor of this change for expert witnesses. According to CBS,
“Opponents said the new standards benefit deep-pocketed companies fighting civil suits filed by injured people and will lead to costly hearings. Supporters said they just want to ensure the testimony is legitimate.”
Those who oppose the “Daubert” standard also say that it will not be reliable in the courtroom since it imposes the task of becoming “pseudo-scientists” on the judges who are presiding over the case.
Florida’s Budget Committee is scheduled to hear a Florida Senate version of the bill tomorrow, which has already passed one committee. We’ll keep you updated as we hear more from the hearing!
If you have had any experiences working with expert witnesses in the state of Florida, “hired gun” or not, we want to hear your thoughts. Please take a moment to review their work in our Expert Witnesses Directory.
To read the complete article from WCTV Florida, please click here.
To read the complete article from CBS, please click here.
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Update to Madoff Victims vs. Mets’ Owners Case
We have an update to our post from February 2, 2012, titled, Madoff Victims vs. The New York Mets’ Owners: Issues with Expert Witnesses. Since publishing that post, Judge Jed S. Rakoff , who has presided over the Madoff Victims vs. Mets’ owners case (a $386 million clawback lawsuit), has cut three expert witnesses from testifying–two on the trustee’s side and John Maine from the defense. This action by Judge Rakoff followed suspicion by the trustee (as stated in our post), that Main may not be qualified or have the appropriate credentials to testify as an expert witness for this particular case. In our previous post, the trustee in this case, Irving H. Picard, was quoted as saying,
“Maine had been too long removed from a full-time financial post, and he even cited Maine’s failed attempt at running a trout farm. Picard contends that Maine’s work as a stockbroker and office executive in the 1970s and ’80s, and his “brief stint trying to raise trout,” were “outside the scope of the issues to be tried to the jury in this litigation.”
As of today, according to ESPN’s blog,
“Rakoff pledged to rule within 11 days whether to toss the case — which the Wilpons’ attorneys have requested — or to award the trustee $83 million even before the March 19 trial is scheduled to begin”
To read the complete article from ESPN, please click here: Judge Tosses Witnesses, Considers Motions.
Rubin, Adam. Judge Tosses Witnesses, Considers Motions. ESPN Blog. February 24, 2012.
One Expert Witness’ Battle with Financial Companies
Having played a role in winning millions of dollars for investors who sued financial companies, it is safe to say that expert witness, Craig McCann, is not one of many brokerage firms’ favorite people. For years, McCann, a former U.S. Securities and Exchange commission Economist, has given testimonies that have exposed the unlawful activity of many securities firms.
As an anonymous securities arbitration lawyer says,
“Most of these securities firms don’t like Craig because his testimony hurts them. They don’t want someone who can lift the tent to show people what’s underneath it. He’s Public Enemy No. One.”
Recently, however, in a case against brokerage Morgan Keegan & Co Inc., a federal judge ruled that McCann gave a fraudulent testimony against the firm.
“The fact that McCann disclosed the discrepancy ahead of time and that the new testimony would have done nothing to change the outcome of the case has not stopped lawyers from using the ruling to attack McCann’s integrity. McCann did not deny revising his figures but the discrepancy, which he says was “minor,” would have done no good for Morgan Keegan.”
Because the stakes are so high for these firms (and because McCann has such a deep knowledge of the assessment and risks of securities), the opposing lawyers often try to challenge his qualifications and credentials.
The incident with Morgan Keegan & Co Inc. launched a full-fledged war against McCann by brokerages. McCann says that he,
“…thought it was the worst day of my life.”
McCann had to lay off three employees and leave four positions vacant within his consulting firm due to the fallout of business as word traveled about the Morgan Keegan ruling.
As time has passed, however, McCann’s business is beginning to pick up once again.
“Despite the onslaught of efforts to discredit McCann since the federal finding, McCann has begun to see subtle victories. Most recent among them: a Financial Industry Regulatory Authority arbitration panel denied a request by Bank of America’s Merrill Lynch unit to disqualify McCann after the brokerage’s lawyers raised concerns about the federal judge’s opinion.”
Regardless of McCann’s recent success, the ruling from the Morgan Keegan case will continue to haunt his record unless a new decision is made by the judge.
McCann prefers to look on the bright side, saying,
“While we’ve been seriously harmed by what’s happened, there’s no doubt we’ll succeed and prosper in the long run.”
If you have worked with Craig McCann in the past and would like to write a review on his work as an expert witness, please follow this link to his profile in Courtroom Insight’s Expert Witness Directory: Craig McCann’s Profile. If would like to write a review on a different expert witness, mediator or arbitrator, or judge, please visit our website here. To read the complete article in Reuters, please click here: Wall Street Fights Back Against Expert Witness in Lawsuits
Source: Barlyn, Suzanne. “Wall Street Fights Back Against Expert Witness in Lawsuits.” Reuters. February 14, 2012.
February 13, 2012
by Kim Harris
tags: Mediator, Arbitrator, Mediator/Arbitrator Directory
A Courtroom Insight user recently posted an extremely positive review of Mediator/Arbitrator, Alfred G. Chiantelli. Mr. Chiantelli is based in San Francisco and was hired as a mediator for a case involving claims for damage to work-in-process as well as lost business income due to a fire.
The reviewer, an expert witness in the case, awarded Mr. Chiantelli a 5.0 out of 5.0 rating for all qualities including legal ability, integrity and objectivity, and judicial management. The expert witness also commended the amount of time that Mr. Chiantelli devoted to preparing for the mediation, noting that the extra time was positively accounted for through his excellent work:
“Chiantelli spent several hours in the morning reviewing the facts and legal issues, particularly as identified in the mediation statements and related documentary evidence. While this effort seemed protracted, it paid dividends later in the day as Chiantelli demonstrated in-depth knowledge of the claims and was able to provide realistic assessments to the parties.”
According to the review, the case reached settlement just a few days after the scheduled mediation and this reviewer stated that he/she would recommend or hire Mr. Chiantelli in the future.
To read the complete review of Albert G. Chiantelli please click here.
If you have worked with any mediators or arbitrators lately, let us know how it went by posting your review in the mediator/arbitrator directory.
Resolution 101C: Expert Witnesses and Jury Understanding
In response to a 2009 report by the National Academy of Sciences, the American Bar Association House of Delegates has recently approved “Resolution 101C”, a resolution that will help jury members to better understand and fairly assess expert witness’ presentations.
“The National Academy raised concerns about the use of terms such as “match,” “consistent with” and “identical,” and said such terms should be defined and standardized. Another problem noted by the Academy is that some forensic practitioners claim their methodologies have perfect accuracy.”
It is important to remember that in any case, experts must present their testimony to the jury in such a way that makes it discernible and clear as to what evidence the research and facts were based upon. For cases that are particularly complex, the court should make every effort to clarify confusing topics or material and allow jurors to ask questions if and when they arise.
If you would like to comment on the performance of an expert witness that you have had experience working with or listened to, Courtroom Insight encourages you to write a review on him or her so that others can use your valuable opinion as a reference. For more information on our review system or to create a user account, please visit Courtroom Insight’s website here. To read the complete article in the ABA Journal, please click here: Resolution Tackles Expert Evidence Issues in Criminal Cases
Source: Weiss, Debra Cassens. “Resolution Tackles Expert Evidence Issues in Criminal Cases.” ABA Journal: Law News Now. February 6, 2012.
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Featured Economic Damages Expert Witness
Name: George Fruehan
Company: Numbers Talk
Location: El Cerrito, CA
Specialty: Economic Damages Expert Witness
Overall Rating: N/A
Profile description provided by expert witness George Fruehan:
Expert testimony on economic damages and on technical issues. Analysis resulting in depositions and testimony in federal and state courts. Issues include: lost profits; valuation of contract damages; projections and historic studies of revenue and costs; patent, trademark and copyright damages; software valuation; disputes over hardware and software performance; investigation for fraud; forensic accounting; evaluation of appropriate personnel compensation and calculation of lost wages.
Mr. Fruehan is included in the expert witness directory as a lost profits expert witness who has over 25 years of experience. His prior experience includes:
Expert testimony in U.S. District Courts, state and local courts, arbitrations, and depositions. Courtroom expert testimony in California.
Be sure to check out Mr. Fruehan’s expert witness profile for more information:
