Law & Litigation Support
Private Investigation Issues
Rules of Evidence
Expert Witness Issues
Expert Witness Qualification Issues
Expert's Perspective - The Product Liability Case
Communicating with the Jury
Post-Accident Insurance Claims
Law and Expert Tips
Working with Experts
Battlefield of Trucking Litigation
recently received a letter from the Texas Board of Private Investigators
and Private Security Agencies. The letter advised us that we may
be in violation of Texas Law concerning private investigation activities
under Article 4413(29bb) V.A.C.S., which defines what constitutes
an “investigation company”. The letter advised that
accident reconstruction activities, under the current interpretation,
meet the requirements for an investigation license.
sub-paragraphs (A)(iv) and (A)(v) are the most applicable. They
define an investigative company as;
any person who engages in the business or accepts employment to
obtain or furnish information with
(iv) the cause or responsibility for fires, libels, losses, accidents,
damages, or injuries to persons or to property;
(v) the securing of evidence to be used before any court, board,
officer, or investigating committee;….”
a nutshell, site surveys, vehicle inspection, securing accident
reports and performing expert work in preparation for trial qualify.
Yes, if you are a licensed Professional Engineer gathering factual
information to support your expert analysis and opinion you do not
have to have a PI license.
The letter from the Board was not a surprise to us, having studied
the law and been of the understanding that we were required, in
certain instances , to have a licensed individual on scene and actually
managing the activities that meet the definition of investigation.
In fact, we thought we were in compliance since we had taken steps
to add a full-time licensed PI to our staff and arranged with an
independent investigator for back-up. With all of our efforts we
felt we were ready and decided to take the initiative to settle
the matter early on.
Bob Swint and I went to Austin to meet with Jay Kimbrough and Ken
Nicholas, the Director and Deputy Director of the Board. We were
mentally prepared for a confrontation that never happened. What
we found at the Board was a willingness to hear us out, help us
understand the current interpretations and work with us to assure
we are in compliance with the law. In our case, it is a matter of
filling out the application to transfer our PI’s license from
himself to the company and assigning him as the Single Manager of
our investigative activities.
actuality, our visit to the Board was the smartest thing we could
have done. Mr. Kimbrough provided us with the options available
to us under the law and helped us to understand how to organize
to be compliant while improving our operating options. We are now
looking at more options for compliance and training of our staff
than we thought we had before with significantly less effort to
get there. I know there are some who are set to do battle over these
interpretations and that is their prerogative. We will watch and
work to change those aspects of the law that don’t work. But
for now, our approach is one of full compliance.
bottom line is that there are certain activities under Texas law
that require a PI license and many accident reconstruction firms
and individuals may not be in full compliance. ATA will now have
the required company license and be able to permit certain qualifying
employees to perform field investigative activities in support of
Rules Of Evidence
courts continue to exercise their gatekeeping function in regards
to expert testimony. The proposed amendments to the federal rules
which directly effect expert witness practices include:
Testimony by Lay
the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions
or inferences which are (a) rationally based on the perception of
the witness (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue and (c) not based
on scientific, technical or other specialized knowledge.
702. Testimony by
scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, provided that (1) the testimony is sufficiently
based upon reliable facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
703. Bases of Opinion
Testimony by Experts
facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known
to the expert at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be admissible
in evidence in order for the opinion or inference to be admitted.
If the facts or data are otherwise inadmissible, they shall not
be disclosed to the jury by the proponent of the opinion or inference
unless their probative value substantially outweighs their prejudicial
notes on Rule 702 emphasize the broad consideration of the Daubert
rulings. The notes cite five additional factors and rulings relevant
in determining the reliability of expert testimony.
Whether experts are “proposing to testify about matters growing
naturally and directly out of research they have conducted independent
of the litigation, or whether they have developed their opinions
expressly for purposes of testifying.” See Daubert v. Merrell
Dow Pharmaceuticals, Inc.
Whether the expert has unjustifiably extrapolated from an accepted
premise to an unfounded conclusion. See General Elec. Co. v. Joiner.
Whether the expert has adequately accounted for obvious alternative
explanations. See Clarr v. Burlington N.R.R. and Ambrosini v. Labarraque.
Whether the expert “is being as careful as he would be in
his regular professional work outside his paid litigation consulting.”
See Sheehan v. Daily Racing Form, Inc. and Braun v. Lorillard Inc.
Whether the field of expertise claimed by the expert is known to
reach reliable results. See Sterling v. Velsicol Chem. Corp.
you have comments on any of the proposed amendments submit them
to the Federal Judiciary website at http://www. uscourts.gov/review.html.
Barry Richard, CSP
Daubert! Robinson! Kumo! Professional Certification! Private Investigator
All of the above have significantly changed the business of expert
witness testimony and qualification. The Supreme Court rulings have
changed the face of what “qualification” means for experts
who testify in courtrooms on technical issues. Scientific methodology
has become an extremely important test to qualify the expert. It
is no longer just the credentials of the expert; his schooling,
nor his experience. Now, the methodology and the association of
the facts gained through a scientific methodical approach to gathering
factual information and analyzing it also figures into whether or
not a judge will let an expert testify on a given topic, in a given
case, on a given day.
implication of the possibility that a judge can disqualify testimony,
not because the expert is not qualified by credentials, but because
his testimony is deemed, by that judge, to be irrelevant to the
case -- too far a stretch from the facts to his opinions, or some
other reason -- is far-reaching. No matter what the reason an expert
is disqualified, the effect is still the same. He was disqualified.
Not allowed to testify. And, that becomes a permanent part of the
record. The reasons, unfortunately, fall away with time and are
lost in the background. All that remains is the blemish of being
disallowed or disqualified from testimony.
say that because of the way the new rules are implemented, that
being disqualified will not be totally destructive to an expert’s
career in the future. Unfortunately, that is refuted by others --
primarily attorneys. I asked an attorney in a meeting recently,
“What would your opinion be, if you were choosing between
two experts – one of whom had been once disqualified, and
one who had not? Would that affect your opinion or your selection
of that expert, even though he might be the more qualified of the
two?” The answer was a disquieting, “I probably would
look very hard at it, and would put a good deal of weight on the
fact that he had been disqualified from testifying.”
issues of professional certification have been with us for a long
time. Professional certification, a proof that you went a step farther
than the average to gain the knowledge to pass exams or peer reviews,
says that you are qualified to be deemed a professional. Those credentials
are important. And, they are becoming more important in separating
the qualified experts from those who are considered less than fully
qualified to testify in court on technical issues.
Finally, the issuance of a private investigator’s licenses
in Texas. Until two years ago, the state’s statutes exempted
technical litigation support. Now it is a fact that in order to
gather information to be used in courtroom testimony and to testify
in court on that information, you have to have either a personal
private investigator license, be covered under a company license,
or be working under the supervision of a licensed private investigator
or attorney if you are not an exempted Professional Engineer (PE).
What does all this mean? It’s not quite as easy to be a testifying
expert in litigation cases any longer. The world is changing, and
we must change with it. My advice: Keep up with what’s going
in the courts and understand what affects experts’ ability
to qualify. I find that I can get some of that information, and
continue, with two other publications. The Law Review and The Law
Reporter. I recommend those as reading to experts, as well as attorneys.
For our experts at ATA, we subscribe to and provide those documents
and publications, in the reading library at the main facility. They
are being re-catalogued at this time and placed in a location in
the library where they will be more accessible. We invite all of
our experts-at any time-to come by and peruse these, and read up
on the current status. Additionally, I will try, from time to time,
to provide some summary and update on topics that I believe is important
to experts in order to maintain their qualifications and status
in the community.
Expert's Perspective- The Product Liability Case
products involve interesting technical aspects whose scientific
merits intrigue experts. The expert's focus, however, must be on
proving the product liability case, not merely solving interesting
technical problems. The field analysis of the product's function
(malfunction) can lead an expert through an arduous technical maze
which may result in a brilliant technical analysis that can be difficult
to explain to a jury. As products become more technically sophisticated,
accident investigation and reconstruction keeps pace evolving by
technology, using advanced technical methods, and relying more on
the expert's experience, creativity, and teaching ability. If an
expert cannot explain a product failure in 25 words or less, they
risk losing the judge and jury, placing the case on thin ice.
must help jury members and judges better understand the issues and
point out flaws in the testimony of the opposing expert. A simple,
clear animation accompanied by a well- rehearsed narrative can be
very effective as a courtroom exhibit. By talking to the jury like
a good teacher talks to students, the expert can win their confidence.
Slow, deliberate answers while exuding an aura of confidence will
put a jury at ease.
consistently polite to the counsel, regardless how much an opposing
counsel attempts to incite an expert will enhance the expert's believability.
For example, if he or she excuses himself or herself when needing
to step down to make use of visual aids, the specialist shows respect
for the jury. By showing exhibits to each member of the jury, not
just to those at the end of the box; shows that he displays deftness.
Best of all, answers should be brief and always in laymen's terms.
carriers have a policy that when a driver is involved in an accident
that the driver calls the insurance company. The only follow-up
on the accident is to make sure the insurance company was called.
recommend that carriers take a proactive approach to claims handling.
The call from the driver should go to the company’s safety
department rather than to the insurance company. After hours, the
call should go to the on-call personnel. They can utilize a checklist
to determine if the safety department, insurance company, or ATA’s
Quick Response Team needs to be involved.
am a firm believer in sending an insurance adjuster to every accident
involving another person’s property. An insurance adjuster
can pay for themselves by controlling the cost of claims. Furthermore,
they can obtain signed releases from the other party. I recently
worked with a carrier that received a $150,000.00 workers compensation
claim on an accident they thought was closed. However, there were
no signed releases or any conversations that took place with the
driver of “Vehicle 2”.
insurance company will welcome your proactive participation in the
claims handling process. They will allow you to make the decision
of whether to send an adjuster or not. Next you need to set up claims
files and manage them with the insurance company’s claim adjuster.
You should set follow-up dates and keep notes as to what was done
and what is going to be done. You will find that you have fewer
open claims and the costs associated with them will decrease.
Law and Expert Tips
debate over Daubert continues with multiple interpretations and
usages being cited by experts and lawyers.
rulings by the 11th Circuit promote use of the reliability criteria
if the expert claims to have arrived at his opinion scientifically.
At issue is the delineation between scientifically based and experience
to the 11th Circuit rulings, the credence and subsequent impact
of purported “scientific testimony” necessitates an
increased gatekeeping function from the courts. Experienced based
testimony is considered not as influential and therefore not held
to the stringent Daubert standards.
often advise our clients on what to look for in selecting an expert.
Although the information is fairly basic, it still seems worth sharing.
The following is an adapted portion of an article on the use of
experts written by Bob Swint for the American Trial Lawyers Association.
.....Clients need to make their expectations clear. Do not assume
the expert knows what you want to prove or demonstrate. Take time
to explore the theories of the case and define how the expert can
support these theories. During this process, the attorney will begin
to get a feel for the knowledge the expert possesses and his or
her ability to articulate it.
Discuss other cases with the expert that are similar to this one
that he has worked. Ask him or her to point out the pitfalls he
or she encountered. What weaknesses does the case present? What
strengths? As a rule, this will be the only time the expert will
be offering his thoughts for free. Make use of this opportunity.
to look for:
2. Good character and reputation
3. Quick intelligence
4. Courage- will not retreat
5. Appealing personality and appearance
6. Good manners and tact
7. The ability to answer briefly and not volunteer information
8. Does not extend himself beyond his qualifications
9. The ability to say, “I don’t know.”
Battlefield of Trucking Litigation
electronic technology through the use of onboard computers, high
speed data busses and satellite communication systems are changing
the world of vehicle accident reconstruction. It is becoming much
like the integrated battlefield operation of the military. High
speed, high quality information transfer may be used in decision
making at all levels.
passenger vehicle with an SDM has onboard event recorders that record
key information about vehicle operations/activities during an accident.
The general public currently has access to General Motors and Ford.
Toyota is soon to follow.
trucks have onboard data recorders that identify what operations
occurred during the vehicles last hard braking. PeopleNet provides
the service of organizing and recording the onboard data in a useful
way as well as transmitting the operational data in real time.
driver safety technology providers such as Vorrad and Iteris are
implementing trucks with technologies that can establish the position
of up to 20 vehicles around the truck.
are being made to require trucks to have an OBDR (onboard data recorder)
to track the driver’s hours of service.
Motors OnStar system provides vehicle onboard diagnostics. In the
event of a collision resulting in air bag deployment, OnStar will
transmit information on events such as location and accident severity
to real-time responders.
brother is watching. There is a significant amount of information
being collected on the events of an accident. As computer technology
improves and expands into increased data collection, the organization/integration
of this information will surely occur.
use of this information is having an increased roll in the reconstruction
of accidents. Many questions will be raised as to how this information
should be used, who has the rights to the information, and how the
information can be used to improve vehicle driver training.
ATA has presented this technology story to numerous national organizations
(TLC, Liberty Mutual, NAPFTDS) in the form of an interactive DVD.
This DVD is available free of charge upon request. To receive a
copy call Anita White, Marketing Coordinator, at 281-480-9847 or
e-mail at firstname.lastname@example.org.
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