Written by: Nanny and Household Employee, Domestic Employment Expert Witness
Expert Witness No. 2162
Calculating the cost of childcare in divorce proceedings can be a complicated endeavor. And if all the costs are not included in the analysis, your client could lose out on a substantial amount of money.
While simply adding up the monthly costs of daycare can be relatively straightforward, the costs of hiring a nanny are numerous and by no means obvious. Indeed, if you simply penciled in the amount of the nanny’s annual compensation, you would significantly underestimate the cost of hiring and employing the nanny.
First, you must consider the cost of hiring a qualified domestic employment agency (often referred to as a nanny agency) to begin a search. Agencies typically charge an initial registration fee of $100 to $250 dollars, and then charge anywhere from 14-18% of the nanny’s annual compensation (including the value of room and board and benefits such as insurance) as a placement fee. With a nanny making approximately $35,000 per year or more, the agency’s placement fee alone likely will exceed $5,000.
In addition, many families run background checks on employees, and it is not uncommon for families to require physicals or drug testing as well. The cost of these background checks, medical exams and drug testing is usually several hundred dollars but can be more depending on the extensiveness of the testing. Once the family hires the nanny, her compensation (including but not limited to wages, meals, insurance, or other benefits and amenities provided to the nanny) is the largest component of the cost of childcare. Remember as well that nannies often receive holiday or annual bonuses, and this compensation should be included in the childcare cost as well.
In addition to these compensation costs, because the family is almost always the nanny’s employer (nannies are virtually never independent contractors), the cost of childcare also should include the cost of the employer’s share of taxes on the nanny’s compensation.
These taxes include 6.2% of the nanny’s wages for Social Security (on wages up to $102,000 for 2008) and 1.45% of the nanny’s wages for Medicare (taxable on all wages), as well as a variety of smaller federal and state taxes. In total, these taxes can amount to approximately an additional 9% of the nanny’s compensation.
Due to the complexity and effort required to report and pay these payroll taxes, many families hire lawyers, accountants or payroll services to handle these tasks for them. The cost of these services also should be included in the overall childcare cost.
Finally, there are insurance costs that should be considered as well. Many states require household employers to provide worker’s compensation insurance for nannies and other household employees. Similarly, if the nanny is going to be driving the family or even her own car in the course of her employment, the family also should obtain appropriate auto insurance as well. Again, the costs of both worker’s compensation and auto insurance should be included in the childcare cost analysis.
A qualified expert witness can assist family law attorneys in calculating these childcare costs. An appropriate expert can provide data on typical nanny compensation in a given geographic area as well as the range of nanny agency fees in the region. The expert also can attest to the taxes, payroll and insurance costs from firsthand experience with the domestic employment industry.
The best expert resource for this testimony is an individual with a thorough knowledge of entire domestic employment industry including employees, agencies, taxes, payroll and insurance. This one expert can testify to the entire range of subjects and ultimately provide the client with a comprehensive and effective childcare cost report.
Employing such an expert can dramatically increase your client’s recovery for childcare costs by ensuring that all costs of childcare are accurately included in the analysis.
Expert 2162 is the Founder of a leading law firm representing household employers and domestic employment agencies. He has served as an expert witness in cases involving household employees, including calculating the cost of childcare in divorce proceedings. He serves on the Board of Directors for the International Nanny Association.
www.freereferral.com
Thursday, March 24, 2011
Wednesday, March 23, 2011
Mortgage Mess -- What We Did And How We Got Here
Written by Mortgage Expert Witness
Expert Witness No. 937
Request this Expert
“Greed is good.“ Those are the now famous words spoken by Gordon Gekko, one of the lead characters in Oliver Stone´s movie, “Wall Street.“ We have all experienced both the good side of this motivational tool and the bad.
Before we entered into the new century, the mortgage industry was embargoed from making loans to borrowers with a poor credit history and lack of supportable income because we were all operating under the guidelines established by the consortium of Fannie Mae, Freddie Mac and the FHA. They collectively made the loan underwriting guidelines that proved to be acceptable to the secondary market institutional investors, including the Wall Street community, pension funds, insurance companies, and other investors in Mortgage Backed Securities. The Mortgage Lending companies that were in the business of offering loans for borrowers, whether for new purchase loans or refinance transactions had to abide by those underwriting guidelines, unless they were capable of holding them in their own portfolios as an asset.
Savings and Loans across the country also looked at mortgage lending products as either salable in the secondary market, therefore subject to the same basic guidelines, or produced their own products for their own portfolio. The now reviled “Option Arm,” “Interest Only,” and “Stated Income” loan products were initially developed by some major S&L’s and Commercial Banks as portfolio loan products. They had been utilized by these institutions for more than 20 years and were available to clients who would qualify for them. The exception to these commonly used underwriting guidelines were those of the then-evolving Alternative-A paper lenders and “sub prime” lenders that became the 21st century dominant sources of mortgage capital to potential borrowers who had income documentation problems, credit issues and/or credit backgrounds that made them more challenging to the prime institutional lenders.
During this time, the amazing growth of companies like New Century, Ameriquest, Option One, and the other participants in that marketplace democratized these more conservative lending option programs to borrowers that would not have had them available five years earlier. Thus was started the slippery slope that enriched many people in the years from 1997 through 2005, which ultimately caused most of these participant companies to close their doors by the end of 2007.
Greed has many handmaidens. In this case, you would have to include the borrowers who wanted to speculate that they could manage more debt than they could and buy a bigger more expensive home. There were mortgage brokers who didn’t live up to their professional responsibilities and mortgage lending companies that ignored many of the warnings that were there to be seen.Rating agencies like S&P, Moody´s, and Fitch hid behind financial structures that were truly halls of mirrors created by financial intermediaries that also paid their fees for the ratings they issued. There were also the institutional consolidators like the major Wall Street companies and the institutional investors who bought these products after they had been converted into Mortgage Backed Derivative financial instruments and given Investment Grade ratings.
As in most major screw ups, including financial upsets, every player had a role in its success – and failure. “A rolling loan gathers no loss,” was the operative idea and ultimately, as these loans passed through the system, no one felt seem to take responsibility for their viability – as long as they made their monies. As a consequence, no one is exempt from the recognition that they helped cause the current industry challenges.
“Back to the Future” was the title of a series of movies in the late 1980s and early 1990s that is also the vision of our collective financial near future in Mortgage Lending. By near future, I mean the next three to five years. We have looked back to the time when we made loans that required loan underwriting standards would be universally understood and applied. Down payments for home purchases were expected in most situations and borrowers knew that their credit backgrounds would be reviewed and if found to be inadequate, they would and could be denied the loan.
That seems to be the near future because fear and despair never last too long. Someone, somewhere, will persuade themselves and others that there is a lot of money to be made by being a little more aggressive, more “forward thinking” and we will start again to look at the short-term gains to be achieved, irrespective of the risk to be overcome. At that time, many of the lending institutions will undoubtedly convince themselves that they are smarter this time around, know more, and can manage the slight increase in default risk in order to achieve a higher bottom line on their financial statements.
And so it will start again. Just wait and see.
Expert Witness No. 937 is a 43-year mortgage lending professional, is a former President of the California Mortgage Bankers Association (1995-1996). He has been the CEO and President of several mortgage banking companies and an expert witness in numerous legal cases, involving loan production, loan servicing, fraud, title and escrow, repurchases, and appraisal issues.
Expert Witness No. 937
Request this Expert
“Greed is good.“ Those are the now famous words spoken by Gordon Gekko, one of the lead characters in Oliver Stone´s movie, “Wall Street.“ We have all experienced both the good side of this motivational tool and the bad.
Before we entered into the new century, the mortgage industry was embargoed from making loans to borrowers with a poor credit history and lack of supportable income because we were all operating under the guidelines established by the consortium of Fannie Mae, Freddie Mac and the FHA. They collectively made the loan underwriting guidelines that proved to be acceptable to the secondary market institutional investors, including the Wall Street community, pension funds, insurance companies, and other investors in Mortgage Backed Securities. The Mortgage Lending companies that were in the business of offering loans for borrowers, whether for new purchase loans or refinance transactions had to abide by those underwriting guidelines, unless they were capable of holding them in their own portfolios as an asset.
Savings and Loans across the country also looked at mortgage lending products as either salable in the secondary market, therefore subject to the same basic guidelines, or produced their own products for their own portfolio. The now reviled “Option Arm,” “Interest Only,” and “Stated Income” loan products were initially developed by some major S&L’s and Commercial Banks as portfolio loan products. They had been utilized by these institutions for more than 20 years and were available to clients who would qualify for them. The exception to these commonly used underwriting guidelines were those of the then-evolving Alternative-A paper lenders and “sub prime” lenders that became the 21st century dominant sources of mortgage capital to potential borrowers who had income documentation problems, credit issues and/or credit backgrounds that made them more challenging to the prime institutional lenders.
During this time, the amazing growth of companies like New Century, Ameriquest, Option One, and the other participants in that marketplace democratized these more conservative lending option programs to borrowers that would not have had them available five years earlier. Thus was started the slippery slope that enriched many people in the years from 1997 through 2005, which ultimately caused most of these participant companies to close their doors by the end of 2007.
Greed has many handmaidens. In this case, you would have to include the borrowers who wanted to speculate that they could manage more debt than they could and buy a bigger more expensive home. There were mortgage brokers who didn’t live up to their professional responsibilities and mortgage lending companies that ignored many of the warnings that were there to be seen.Rating agencies like S&P, Moody´s, and Fitch hid behind financial structures that were truly halls of mirrors created by financial intermediaries that also paid their fees for the ratings they issued. There were also the institutional consolidators like the major Wall Street companies and the institutional investors who bought these products after they had been converted into Mortgage Backed Derivative financial instruments and given Investment Grade ratings.
As in most major screw ups, including financial upsets, every player had a role in its success – and failure. “A rolling loan gathers no loss,” was the operative idea and ultimately, as these loans passed through the system, no one felt seem to take responsibility for their viability – as long as they made their monies. As a consequence, no one is exempt from the recognition that they helped cause the current industry challenges.
“Back to the Future” was the title of a series of movies in the late 1980s and early 1990s that is also the vision of our collective financial near future in Mortgage Lending. By near future, I mean the next three to five years. We have looked back to the time when we made loans that required loan underwriting standards would be universally understood and applied. Down payments for home purchases were expected in most situations and borrowers knew that their credit backgrounds would be reviewed and if found to be inadequate, they would and could be denied the loan.
That seems to be the near future because fear and despair never last too long. Someone, somewhere, will persuade themselves and others that there is a lot of money to be made by being a little more aggressive, more “forward thinking” and we will start again to look at the short-term gains to be achieved, irrespective of the risk to be overcome. At that time, many of the lending institutions will undoubtedly convince themselves that they are smarter this time around, know more, and can manage the slight increase in default risk in order to achieve a higher bottom line on their financial statements.
And so it will start again. Just wait and see.
Expert Witness No. 937 is a 43-year mortgage lending professional, is a former President of the California Mortgage Bankers Association (1995-1996). He has been the CEO and President of several mortgage banking companies and an expert witness in numerous legal cases, involving loan production, loan servicing, fraud, title and escrow, repurchases, and appraisal issues.
Monday, March 21, 2011
Credit Card Expiration Dates and FACTA
Written by: Banking, Management, Economic and Valuation Expert Witness
Expert Witness No. 74
The Fair and Accurate Credit Transaction Act ("FACTA") was passed by Congress and signed into law on December 4, 2003, and became fully effective on December 4, 2006. The purpose of FACTA is to reduce the amount of personal confidential financial information that is generated and thereby reduce the incidence of identity theft and credit card fraud. In keeping with this goal, 15 USC 1681c(g)(1) requires that merchants that issue receipts to individuals truncate all but the last four or five digits of the customer´s credit card account number and truncate the entire expiration date.
Unfortunately, and despite the fact that FACTA was widely discussed before and after its passage, many merchants simply have ignored these aspects of FACTA, apparently based upon their belief that expiration dates are unimportant to a criminal. They are wrong. Credit card expiration dates are very important and useful to criminals. Consider the following:
-Expiration dates are one of the inputs needed to calculate the 3-digit security code (CVV2 or CVC 2) on the back of a credit card.
-Expiration dates are required for some, but not all, online purchases, as clearly demonstrated by my recent online test purchase at Wal-Mart, the world´s largest retailer.
-Expiration dates combined with the last four or five digits of an account number can be used to bolster the credibility of a criminal who is making pretext calls to a card holder in order to learn other personal confidential financial information.
-Expiration dates are solicited by criminals in many e-mail phishing scams.
-Expiration dates are one of the personal confidential financial information items trafficked in by criminals.
-Expiration dates are described by Visa as a "special security feature."
-Expiration dates are one of the items contained in the magnetic stripe of a credit card, so it is useful to a criminal when creating a phony duplicate card.
-Expiration dates are easy to exclude from receipts and involve minimal expense, even for a major retailer with hundreds of stores and cash registers.
-Expiration dates are required to be excluded from printed receipts, according to Visa´s Rules for Merchants, which predates FACTA.
-Expiration dates are required to be excluded from printed receipts, according to MasterCard International´s Rules, which predates FACTA.
-Expiration dates are required to be excluded from printed receipts given to individuals, according to laws passed or introduced in at least thirty-four states.
-Expiration dates are required to be excluded from printed receipts given to individuals, according to FACTA.
The costs for a merchant to implement FACTA are small, but the potential losses to individuals from identity theft and credit card fraud are great. Accordingly, it is difficult to see how any merchant could fail to see the risk of harm to which they willfully are exposing their customers by not truncating expiration dates as required by FACTA as well as Visa and MasterCard International merchant rules as well as many state laws.
Expert Witness No. 74 is an experienced banking expert witness consultant who has worked on 337 cases nationwide and testified 91 times. He is a former banker and banking regulator, widely published, and often quoted in the media. He is available to discuss FACTA and other banking, finance, economic and credit damages, fraud and embezzlement, real estate, business valuation, and related cases with attorneys.
View CV of Expert Witness No. 74
View PDF version of Banking, Management, Economic and Valuations Expert Witness Newsletter Article
Return to Spring 2008 Newsletter
Expert Witness No. 74
The Fair and Accurate Credit Transaction Act ("FACTA") was passed by Congress and signed into law on December 4, 2003, and became fully effective on December 4, 2006. The purpose of FACTA is to reduce the amount of personal confidential financial information that is generated and thereby reduce the incidence of identity theft and credit card fraud. In keeping with this goal, 15 USC 1681c(g)(1) requires that merchants that issue receipts to individuals truncate all but the last four or five digits of the customer´s credit card account number and truncate the entire expiration date.
Unfortunately, and despite the fact that FACTA was widely discussed before and after its passage, many merchants simply have ignored these aspects of FACTA, apparently based upon their belief that expiration dates are unimportant to a criminal. They are wrong. Credit card expiration dates are very important and useful to criminals. Consider the following:
-Expiration dates are one of the inputs needed to calculate the 3-digit security code (CVV2 or CVC 2) on the back of a credit card.
-Expiration dates are required for some, but not all, online purchases, as clearly demonstrated by my recent online test purchase at Wal-Mart, the world´s largest retailer.
-Expiration dates combined with the last four or five digits of an account number can be used to bolster the credibility of a criminal who is making pretext calls to a card holder in order to learn other personal confidential financial information.
-Expiration dates are solicited by criminals in many e-mail phishing scams.
-Expiration dates are one of the personal confidential financial information items trafficked in by criminals.
-Expiration dates are described by Visa as a "special security feature."
-Expiration dates are one of the items contained in the magnetic stripe of a credit card, so it is useful to a criminal when creating a phony duplicate card.
-Expiration dates are easy to exclude from receipts and involve minimal expense, even for a major retailer with hundreds of stores and cash registers.
-Expiration dates are required to be excluded from printed receipts, according to Visa´s Rules for Merchants, which predates FACTA.
-Expiration dates are required to be excluded from printed receipts, according to MasterCard International´s Rules, which predates FACTA.
-Expiration dates are required to be excluded from printed receipts given to individuals, according to laws passed or introduced in at least thirty-four states.
-Expiration dates are required to be excluded from printed receipts given to individuals, according to FACTA.
The costs for a merchant to implement FACTA are small, but the potential losses to individuals from identity theft and credit card fraud are great. Accordingly, it is difficult to see how any merchant could fail to see the risk of harm to which they willfully are exposing their customers by not truncating expiration dates as required by FACTA as well as Visa and MasterCard International merchant rules as well as many state laws.
Expert Witness No. 74 is an experienced banking expert witness consultant who has worked on 337 cases nationwide and testified 91 times. He is a former banker and banking regulator, widely published, and often quoted in the media. He is available to discuss FACTA and other banking, finance, economic and credit damages, fraud and embezzlement, real estate, business valuation, and related cases with attorneys.
View CV of Expert Witness No. 74
View PDF version of Banking, Management, Economic and Valuations Expert Witness Newsletter Article
Return to Spring 2008 Newsletter
Thursday, March 17, 2011
Suicides Within the Juvenile Justice System: The Need for Administrative Oversight
Suicides Within the Juvenile Justice System: The Need for Administrative OversightWritten by: Jails and Prison Expert WitnessExpert Witness No. 136 | ||
 | Suicides among youths in the United States is a national tragedy. A successful suicide by an adolescent within the juvenile justice system is both preventable and unconscionable and tends to occur as a consequence of poor or inappropriate staffing, inadequate training, and/or the lack of policy and procedure enforcement. Suicides among detained youth can and should be prevented and the role and responsibility of court and probation | |
administrators with regard to detention facility oversight sadly have been neglected. | ||
Unfortunately, we have not always had accurate and up-to-date data on attempted and successful suicides among youths detained in correctional facilities. According to a report prepared a couple of decades ago (Memory, 2005), it was reported that detained youths were "...four to five times more likely to be the victim of suicide than were similarly aged youths in the general U.S. population." According to Snyder (2005:84) and based on National Center for Health Statistics (NCHS) data, recent rates for suicide vary among different juvenile population groups: | ||
| ||
For adults, the leading cause of deaths in U.S. jails is suicide (Goss, J. R., 2002) while in prisons it ranks third as the primary cause (Couturier & F. R. Maue, 2000). In a study conducted in England and Wales (Fazel, et al, 2005), Standardized Mortality Ratios (SMRs) were calculated for different age groups in terms of suicides. It was found that the age-specific suicide rate for all ages for those incarcerated was 5.1. However, for detained boys ages 15 to 17, the rate was an astonishing 18. It was also found that suicide has been about five times more common among male prisoners (all ages) in England and Wales than in the general male population. Fazel, et al, (2005:2) conclude "...that this excess is...particularly striking among incarcerated boys, and it has been steadily increasing over recent decades." | ||
MENTAL HEALTH DISORDERS | ||
It has become common knowledge that many detained youths have mental health problems, which is recognized as a critical risk factor that can lead to suicides. In fact, as Grisso, et al (2001) report, while youth in the U.S. make up an average of 20 percent of those being supervised among juvenile justice agencies, their level of mental health disorders is higher and, in fact, according to Pumariega (1994), the level has even been likened to patients in mental hospitals. | ||
Friday, March 11, 2011
Earth Quake in Japan Today
Japan gets hit with not just an 8.9 Earthquake but also a Tsunami. It is the most powerful earthquake that Japan has ever had.
"According to Japanese police, 200 to 300 bodies were found in Sendai, the coastal city closest to the epicenter. Another 137 people were confirmed killed, with 531 missing. At least 627 people were injured. "
http://www.msnbc.msn.com/id/42023385/ns/world_news-asiapacific/?gt1=43001
"According to Japanese police, 200 to 300 bodies were found in Sendai, the coastal city closest to the epicenter. Another 137 people were confirmed killed, with 531 missing. At least 627 people were injured. "
http://www.msnbc.msn.com/id/42023385/ns/world_news-asiapacific/?gt1=43001
Thursday, March 10, 2011
The Corrections Expert: Roles and Responsibilities
Written by Prison Corrections Expert Witness
Expert Witness No. 136
Click here to view this Expert’s CV
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The difference between fact and opinion is in the eye of the beholder notwithstanding the expertise of the expert, an expertise built upon knowledge and experience. Yet, it will remain up to a juror to make a final determination of whom is right: the defense or the plaintiff expert.
In all litigation there are always some factual issues beyond challenge: the correctional facility’s policies and procedures; the actual staffing of correctional officers at the time and place of an incident; and/or that an assault or a suicide did occur. But the causes, significance, and meaning of many issues frequently and undoubtedly lead to interpretations findings posited by the retained expert. It is this approach to understanding “what” happened and “why” as propounded by opposing experts that can and probably does confound juries.
To develop and convey a sense of credible expertise, the expert must work closely with the attorney not only in helping to articulate a “theory” of the case from both legal and correctional perspectives, but to create a distinguishable and relevant interpretation of the facts that will define and explain what occurred and why whether for the plaintiff of the defendant.
Unfortunately, too many attorneys do not engage their experts early in case development that precludes early and active involvement in case definition as well as the identification and procurement of appropriate and critical documents. It is also important to accept the notion that the expert should be retained in order to supplement the knowledge base of the attorney. That is, for example in corrections, to help the attorney understand policies, procedures, and operations issues with which the attorney may have some familiarity, but not have the depth of understanding or realize the significance that the expert should have.
Further, it is incumbent upon the expert to share with the attorney any standards, and their sources, that may be case applicable insofar as the correctional facility is concerned and the degree to which any audit may indicate compliance or non¬compliance. Even the experienced attorney, i.e., one who has had previous correctional cases, cannot possibly be as knowledgeable as the retained expert. This, of course, should be the “test” when interviewing and deciding on hiring an expert. Beyond knowledge, of course, is the attorney’s perception of the expert’s ability to convey that knowledge in understandable and credible ways.
The attorney-expert relationship should be that of a “team” operating collaboratively in order to prepare for trial. While the expert must rely on the attorney for guidance with regard t legal matters (e.g., inadmissible materials), the attorney must rely on the expert when it comes to interpreting correctional matters. (Of course, this applies to every other field where litigation is involved.)
Among the dangers an expert faces is a consequence of his or her over-confidence a level that bespeaks of arrogance. Here, experience dictates that a jury will tend to disregard the testimony of an expert if there is condescension toward jurors and/or if a “know-it-all” attitude is conveyed during testimony. Another danger is when an expert trips himself or herself up when writing a report that is much too glib, where wordiness supplants facts and where there is a failure not only to document the source of findings but a failure to indicate precisely where a fact or issue was found in the reviewed materials (e.g., Jones Deposition, p. 20; Policy & Procedure 2.507). The inclusion of such pertinent details in a written report unquestionably illustrates the expert’s reportorial abilities and significantly adds to his or her credibility.
The use of an expert with regard to deposition and/or trial testimony will be left to another article. Here, however, it should be noted that an expert is only as good as he or she is prepared to testify, that there is an obvious command of the discovery materials, is aware of factual or interpretive shortcomings, and that he or she has a high comfort level insofar as being able to testify convincingly.
The above, of course, presupposes that the attorney and expert have worked closely and collaboratively in preparing for the expert’s testimony. Additionally, it should be pointed out that an expert needs time to read, assimilate, and understand the discovery materials. An attorney who rushes his or her expert is likely to obtain less than qualified assistance, less than what a good expert can produce.
As a sidebar to the above, the role and responsibility of the corrections expert, whether for the plaintiff or the defense, is to share with the attorney the degree to which he or she believes the case is strong or weak. That is, upon reviewing initial materials, the expert should reach an early assessment whether the defense is defensible or if the plaintiff really has a credible case one that will hold up if the case goes to trial. It is not the expert’s duty to interpret the law, nor should the expert review and cite appellate decisions, those are the responsibility of the attorney. But it is the expert’s duties to share with counsel his or her beliefs about the likelihood of prevailing in court insofar as correctional practices and standards are concerned.
In the final analysis, it is up to the plaintiff’s attorney to decide whether or not to proceed. With regard to the defendant, here the attorney must determine if settlement is in the client’s best interest. If the corrections expert has done his or her job, the decision to proceed or to settle will facilitate appropriate decision-¬making and, hopefully, in a timely manner.
Expert Witness No. 136
Click here to view this Expert’s CV
Subscribe to Newsletter
The difference between fact and opinion is in the eye of the beholder notwithstanding the expertise of the expert, an expertise built upon knowledge and experience. Yet, it will remain up to a juror to make a final determination of whom is right: the defense or the plaintiff expert.
In all litigation there are always some factual issues beyond challenge: the correctional facility’s policies and procedures; the actual staffing of correctional officers at the time and place of an incident; and/or that an assault or a suicide did occur. But the causes, significance, and meaning of many issues frequently and undoubtedly lead to interpretations findings posited by the retained expert. It is this approach to understanding “what” happened and “why” as propounded by opposing experts that can and probably does confound juries.
To develop and convey a sense of credible expertise, the expert must work closely with the attorney not only in helping to articulate a “theory” of the case from both legal and correctional perspectives, but to create a distinguishable and relevant interpretation of the facts that will define and explain what occurred and why whether for the plaintiff of the defendant.
Unfortunately, too many attorneys do not engage their experts early in case development that precludes early and active involvement in case definition as well as the identification and procurement of appropriate and critical documents. It is also important to accept the notion that the expert should be retained in order to supplement the knowledge base of the attorney. That is, for example in corrections, to help the attorney understand policies, procedures, and operations issues with which the attorney may have some familiarity, but not have the depth of understanding or realize the significance that the expert should have.
Further, it is incumbent upon the expert to share with the attorney any standards, and their sources, that may be case applicable insofar as the correctional facility is concerned and the degree to which any audit may indicate compliance or non¬compliance. Even the experienced attorney, i.e., one who has had previous correctional cases, cannot possibly be as knowledgeable as the retained expert. This, of course, should be the “test” when interviewing and deciding on hiring an expert. Beyond knowledge, of course, is the attorney’s perception of the expert’s ability to convey that knowledge in understandable and credible ways.
The attorney-expert relationship should be that of a “team” operating collaboratively in order to prepare for trial. While the expert must rely on the attorney for guidance with regard t legal matters (e.g., inadmissible materials), the attorney must rely on the expert when it comes to interpreting correctional matters. (Of course, this applies to every other field where litigation is involved.)
Among the dangers an expert faces is a consequence of his or her over-confidence a level that bespeaks of arrogance. Here, experience dictates that a jury will tend to disregard the testimony of an expert if there is condescension toward jurors and/or if a “know-it-all” attitude is conveyed during testimony. Another danger is when an expert trips himself or herself up when writing a report that is much too glib, where wordiness supplants facts and where there is a failure not only to document the source of findings but a failure to indicate precisely where a fact or issue was found in the reviewed materials (e.g., Jones Deposition, p. 20; Policy & Procedure 2.507). The inclusion of such pertinent details in a written report unquestionably illustrates the expert’s reportorial abilities and significantly adds to his or her credibility.
The use of an expert with regard to deposition and/or trial testimony will be left to another article. Here, however, it should be noted that an expert is only as good as he or she is prepared to testify, that there is an obvious command of the discovery materials, is aware of factual or interpretive shortcomings, and that he or she has a high comfort level insofar as being able to testify convincingly.
The above, of course, presupposes that the attorney and expert have worked closely and collaboratively in preparing for the expert’s testimony. Additionally, it should be pointed out that an expert needs time to read, assimilate, and understand the discovery materials. An attorney who rushes his or her expert is likely to obtain less than qualified assistance, less than what a good expert can produce.
As a sidebar to the above, the role and responsibility of the corrections expert, whether for the plaintiff or the defense, is to share with the attorney the degree to which he or she believes the case is strong or weak. That is, upon reviewing initial materials, the expert should reach an early assessment whether the defense is defensible or if the plaintiff really has a credible case one that will hold up if the case goes to trial. It is not the expert’s duty to interpret the law, nor should the expert review and cite appellate decisions, those are the responsibility of the attorney. But it is the expert’s duties to share with counsel his or her beliefs about the likelihood of prevailing in court insofar as correctional practices and standards are concerned.
In the final analysis, it is up to the plaintiff’s attorney to decide whether or not to proceed. With regard to the defendant, here the attorney must determine if settlement is in the client’s best interest. If the corrections expert has done his or her job, the decision to proceed or to settle will facilitate appropriate decision-¬making and, hopefully, in a timely manner.
Reprinted with permission from Author 800-683-9847
Tuesday, March 8, 2011
Finding the Right Expert for your Case
Consolidated Consultants can help you find the right expert for your case! Give us a call at 800-683-9847 or Request an Expert
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