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Lost Profits Award for Breach of a License Agreement Cannot Rely on Comparison Between Recent Entrant and Market Behemoth

Originally published in the New York Law Journal, an ALM Media publication, on November 13, 2017.

By: Richard Raysman and Peter Brown

It is black-letter law that liability for breach of contract does not mean that the prevailing party is entitled to its requested damages award, much less any damages at all. In particular, New York law applies a higher standard relative to other damage categories when evaluating a prevailing party’s claim based on lost profits. To avoid losing on a damages request, or receiving only a nominal award, the prevailing party must show that lost profit damages can be proven with “reasonable certainty” and “were fairly within the contemplation of the parties to the contract at the time it was made.”

Past sales often furnish a persuasive rationale for estimating lost profits. Obviously this is largely inapplicable to start ups and other nascent enterprises, particularly when these entities have not executed agreements that specifically contemplate the dollar amount of compensation, and rely instead on equity offerings or percentages of prospective sales. An early stage trademark licensor encountered this problem when litigating the breach of a license by the licensee in 2005, when the licensee had been in business for only a handful of years. This column discusses the most recent opinions in the matter, which illustrate the difficulties in obtaining a lost profits award when premised on conjectural comparisons between the prevailing party and an established, if not leading presence in the relevant market.

 

Facts and Procedural Background

Plaintiffs Daryl Washington and Sunday Players, Inc. owned seven licensed marks for a “Sunday Players” brand utilized in selling “compression” apparel. Defendant Kellwood Company manufactures, advertises and distributes various types of apparel. In 2002, the parties discussed an arrangement wherein defendants would manufacture compression products bearing the “Sunday Players” marks. This proposed business arrangement soon progressed into a potential joint venture after Kellwood allegedly facilitated meetings with major players in the retail apparel market, in which such retailers “express considerable interest in selling products displaying [plaintiffs’] marks.”

Consequently, on Nov. 25, 2003, the parties entered into a license agreement (the “license”). The initial term of the license expired on Jan. 31, 2007. The license granted defendant an exclusive license to use the “Sunday Players” mark in conjunction with the “production, manufacture, advertising, merchandising, promotion, importation, distribution and sale” of various classes of apparel and accessories. The license obligated defendant to spend three percent of gross sales on marketing these products. Plaintiffs’ alleged that defendants, through subsequent “various oral and written agreements,” undertook additional obligations, including to spend additional funds on marketing products using the Sunday Players name.

According to the plaintiffs, the defendant failed to uphold its side of the bargain to use best efforts to generate profits under the license. Defendant countered by alleging that it in fact did dedicate its best efforts to selling products with the Sunday Players mark, but nonetheless could not make a single sale of such a product. Defendant claimed to have spent more than $220,000 in marketing the Sunday Players’ products, including pitches to “approximately eighteen large retailers.” Dissatisfied with the performance of the Sunday Players products, in or around April 2005, defendant terminated its arrangement with plaintiffs’, including the license.

That decision triggered the instant litigation, which has now been active for nearly 12 years. Plaintiffs alleged, inter alia, that defendant failed to give its best efforts to market and sell the Sunday Players products and breached the license by unilaterally terminating it prior to expiration. After considerable procedural wrangling and discovery, on summary judgment, the District Court held that defendant breached the license due to an unlawful premature termination and the failure to provide product samples to plaintiffs.

Trial was held to determine if defendant also breached the license in a third way: by failing to undertake reasonable marketing efforts prior to termination. On Feb. 11, 2016, a jury returned a verdict in the affirmative, awarding plaintiffs, in relevant part, $4,350,000 in lost profits. The jury heard the testimony of plaintiffs’ expert witness, which concluded that if reasonable marketing efforts had been made, “Sunday Players would have sold [products] at 50 percent [of a primary competitor] at a comparable stage of development.”

 

Legal Analyses and Conclusion

In September 2016, the parties cross-moved for various reasons, including defendant’s motion for a judgment as a matter of law alleging that plaintiffs’ provided no foundation for certain assumptions of plaintiff’s expert concerning the lost profits and loss value estimates. See Washington v. Kellwood Co., 2016 WL 3920348 (S.D.N.Y. July 15, 2016).

The District Court agreed. While finding for plaintiffs on liability grounds, the court held that plaintiffs lost business value broadly speaking as a result of the license breach, but did not prove that “its new and untested business would have achieved vast market success but for Kellwood’s breaches,” which was the foundation for the $4,350,000 verdict. Accordingly, since the jury’s lost value verdict relied on speculative evidence projections rooted in the future success of plaintiffs’ business (then in its nascent stages), the court vacated the verdict with respect to damages and remanded for a new trial to establish any “lost business value damages.”

Specifically, the District Court held that the lost profits award was based on insufficient evidence. First, the award did not have a foundation, i.e., Sunday Players’ lack of “track record” in the market, to prove with reasonable certainty the existence of lost profits. See Kenford Co., Inc. v. Cnty. of Erie, 67 N.Y.2d 257 (1986) (lost profits must be proven “with reasonable certainty” and be “fairly within the contemplation of the parties to the contract at the time it was made”). Rather, Sunday Players was a “start-up business with no capital or manufacturing capacity, no national advertising, and no long-term deals with retailers. It had no brand recognition and meager sales.”

Second, the court rejected the estimate of the plaintiffs’ expert that, had the license been fully performed, defendant would have then sold $82,000,000 of Sunday Players’ product. It noted that plaintiffs’ expert had no marketing expertise, so any prognostications about lost value are without basis. The court out-of-hand rejected the comparison by the plaintiffs’ expert of Sunday Players to Under Armour. The comparison “posited superficial similarities” to Under Armour, the “market’s dominating force.” His comparison, which entailed in part suggesting that Sunday Players and Under Armour were comparable because they used similar grassroots marketing strategies and television advertising, is “pitched at such a high level of generality as to be totally meaningless.” Moreover, of course plaintiffs would try to emulate Under Armour’s past strategies, given the successful results, irrespective of whether Under Armour was a comparable company for purposes of damages analysis.

In sum, for these reasons and a number of others, the court concluded that the comparison with Under Armour actually proved the opposite of the plaintiffs’ expert’s argument. As a result, the jury’s lost value award was also erroneous as a matter of law, since it was premised entirely on the same expert testimony that justified the lost profits analysis. Nonetheless, since plaintiffs proved liability based on defendant’s breach of the license, the court ordered a new trial with respect to lost profit damages.

Reviewing de novo, the Second Circuit agreed and held that the vacatur of the $4,350,000 verdict and the denial of a new damages trial was correct. See Washington v. Kellwood Co., — F. Appx. —-, 2017 WL 494467 (2d Cir. Nov. 2, 2017). The Second Circuit elaborated by stating that plaintiffs’ “failed to proffer evidence from which lost profits could be established with reasonable certainty.” To wit, during the relevant period Under Armour had annual sales between $49.5 million and $195 million, whereas Sunday Players had “no record of notable sales.” Accordingly, the plaintiffs’ expert’s contention that Sunday Players’ revenues were reasonably certain to increase from a six figures to approximately $80 million “was so unfounded that it failed to establish any legal basis for awarding lost-profits damages.”

Leave a Comment November 16, 2017

Motion to Quash ‘Paranoia’-Driven Subpoena Filed by Expert Witness in Spinrilla Case

Originally published in the New Daily Report, an ALM Media publication, on September 28, 2017.

By: Colby Hamilton

A subpoena being driven by attorney “paranoia” in a Georgia-based copyright violations case should be quashed, according to a motion filed in the U.S. District Court for the Southern District of New York on Wednesday.

William Rosenblatt, an expert witness in digital music cases, is trying to keep a one-time potential client from deposing him in Manhattan, over what he alleges is “the very epitome of litigation paranoia.”

Rosenblatt, represented by New Jersey-based Tenaglia & Hunt name attorney James Hunt Jr., says he was approached by Georgia-based private attorney David Lilenfeld as a potential expert witness in an ongoing copyright violations case, Atlantic Recording v. Spinrilla, 17-cv-00431, in the U.S. District Court for the Northern District of Georgia.

Lilenfeld’s clients operate a music website, Spinrilla.com, which has been sued by four record companies, including Sony and Warner Bros., over copyright violations. The companies allege that the defendant, Spinrilla owner Jeffery Copeland, knowingly allowed users to upload music copyrighted by the defendants that were then downloaded for free.

 According to the motion filed in Manhattan federal court, Lilenfeld approached Rosenblatt in late August as a potential expert witness on behalf of the defendants. After initially expressing interest, Rosenblatt says that two matters that he’d already been engaged on, but which were unrelated to Lilenfeld’s litigation, arose shortly after their initial conversation. Given the new time constraints, Rosenblatt said he told Lilenfeld he wouldn’t be available, but went so far “as a courtesy to Lilenfeld” to make recommendations for other potential experts, according to the motion.

That’s when things took a turn, according to Rosenblatt. Allegedly believing Rosenblatt had been contacted and coerced by plaintiffs in the Georgia case—and refusing to believe Rosenblatt’s repeated denials to the contrary—Lilenfeld subpoenaed Rosenblatt for a deposition on Sept. 8 in New York City.

According to the motion, the subpoena demands copies of telephone records, emails and text messages over an eight-day period in August. Rosenblatt claims to have offered an affidavit that he wasn’t contacted by anyone, including the plaintiffs in the Georgia case, but was rebuffed by Lilenfeld. Through counsel, Rosenblatt says he then offered to provide the information under a series of conditions, including a promise that Lilenfeld would not contact any of the phone numbers, and that Lilenfeld never contact Rosenblatt again. Lilenfeld allegedly refused that offer as well.

Lilenfeld could not be reached for comment.

“Indeed, Lilenfeld’s invasion of Rosenblatt’s privacy knows no bounds,” the motion states.

Lilenfeld’s actions are an abuse of subpoena power, seeking irrelevant information that is private and confidential—including communications between Rosenblatt and third-party clients—while subjecting a nonparty in the original litigation to an undue burden, according to Rosenblatt.

Additionally, Rosenblatt asked the court for sanctions under Rule 45(d) for “this bizarre attempt to subpoena a person they sought to hire as an expert witness.”

“The subpoena served by defendants on non-party Rosenblatt is nothing more then a fishing expedition on an innocent non-party that has absolutely nothing to do with the underlying action and appears to have been pursued in bad faith,” Rosenblatt stated in the motion.

Rosenblatt’s counsel Hunt could not be reached for comment.

Leave a Comment October 23, 2017

Court Reinstates Med Mal Case Over Catheterization Gone Awry

Originally published in the New York Law Journal, an ALM Media publication, on October 10, 2017.

By: Jason Grant

An expert witness and a fellow physician raised triable issues of fact regarding whether a gastroenterologist departed from the standard of care when he catheterized a patient with an inflamed bile duct, a state appeals court ruled Tuesday.

An Appellate Division, First Department, panel found that despite Dr. Louis May providing experts who said that the plaintiff’s bile duct perforation occurred before his actions, triable issues of fact were raised “as to whether Dr. May caused the … perforation when he conducted the ERCP [endoscopic retrograde cholangiopancreatography] or exacerbated decedent’s injuries by advancing the catheter and performing excessive manipulation.”

The panel’s unanimous opinion reversed Bronx Supreme Court Justice Douglas McKeon’s 2015 decision granting summary judgment to May. The medical malpractice suit was lodged in 2003 by multiple plaintiffs, including Jean Philippe Cadichon, the patient, who was unnamed and later died. Cadichon suffered a perforation of the hepatic and/or common bile duct and, eventually, developed acute renal insufficiency and liver failure, the panel said.

The summary judgment question—and, in turn, the divergence between experts and two doctors who treated the patient at Good Samaritan Hospital—focused largely on evidence of who and what caused the perforation.

In 2002, Dr. Thomas Facelle removed the Cadichon’s gallbladder. She later returned to the hospital with pain and, after bile duct scans, May performed an ERCP to take X-rays of the area through an endoscope and possibly repair a duct leak, according to the decision.

The plaintiffs alleged both procedures were performed negligently.

In testimony, the two physicians diverged on who perforated the duct, wrote Justices Rosalyn Richter, Judith Gische, Barbara Kapnick, Marcy Kahn and Cynthia Kern in Cadichon v. Facelle, 16878/03. Facelle’s records indicated May advised him that a catheter he inserted perforated the duct and entered the abdominal cavity. May said he only advised Facelle of leakage from an existing perforation.

The panel wrote that “as an initial matter, Dr. May established his prima facie right to summary judgment” based on “his deposition testimony, decedent’s medical records and the affirmations of two experts who opined that there is no evidence of any departure from the standard of care.”

But the panel went on to find that, “plaintiff and Dr. Facelle raised triable issues of fact as to whether Dr. May caused the bile duct perforation.”

“Plaintiff’s expert opines that Dr. May departed from the accepted standard of care when he advanced the catheter knowing the decedent was at high risk for duct injury due to her post-surgical inflammation, and record evidence demonstrates that her bile duct was not healthy,” the panel wrote, adding that “Dr. Facelle testified that he was summoned to the ERCP procedure by Dr. May because it was Dr. May who perforated the bile duct.”

Brian Isaac of Pollack, Pollack, Isaac & DeCicco represented Cadichon in the appeal. Paul Weitz, of Paul Weitz & Associates, the attorney of record for the Cadichon family, said in an email, “The Cadichon family is extremely gratified by the court’s decision and they look forward to their day in court.” Neither Melinda Kollross, a shareholder at Clausen Miller who represented May, nor Barbara Goldberg, a partner at Martin Clearwater & Bell, Facelle’s lawyer, could be reached.

Leave a Comment October 23, 2017

Construction Expert for Complex Litigation

By: Derek Graham, an ALM listing expert.

Finding the right construction expert for defect and workmanship claims expert is a slippery slope for attorneys whose specialty is not construction. A typical strategy to find a construction expert is to retain an engineer or architect expert, since like attorneys, they are degreed and licensed. I believe that, for some, there is a tacit notion that having a degree makes one a more qualified witness. This boot-strap stereotype does a disservice by significantly narrowing the field of candidates, and disqualifying some of the best resources.

The other reason attorneys default to architects is because architects routinely inspect tradesmen work quality for approval or rejection as a daily part of their office. So as it should be, per the AIA contract family. Thus, it is understandable for an attorney to seek an architect to render an opinion on defective workmanship. A tradesman would be at least equally as capable as the architect. Indeed, just as architects provide expert opinions on defective work, so can many tradesmen testify on the nature of architectural errors and omissions that contribute to a given defect, as good or better as any architect.

“The knee-jerk selection of an architect as a construction expert is misguided. It is a vestige of the old stereotype that architects are more educated and sophisticated than builders.

Yet even within firms that specialize in construction litigation, many attorneys don’t have the precise knowledge required to understand the complex science of defects at higher levels of luxury, such as custom high-end residential construction. The same can be said of mediators and arbitrators who may be unfamiliar with ultra-high-end work. This latter condition can be problematic, as it may preclude the reliability of the construction expert. The subjective nature and lack of consensus about what constitutes high quality further compounds the problem. It is therefore necessary to establish the value of a construction dollar on each distinct project.

The Almighty Construction Dollar

Every project has a design intent and vision built into the design documentation that is meant to set the bar for quality. The level of quality is what determines the value of a construction dollar on a project. Quality levels can sometimes be ascertained directly from the price per square foot for different types of construction. For high-end construction, the range is wide. It is not enough to say “I want the best,” or “I want the highest quality,” because no two architects will measure quality in the same way.

An architect less experienced in high-end is more likely to under-design for his clients than a seasoned high-end architect, simply because his concept of high-end is limited, and not sophisticated enough to make subtle adjustments depending on his clients’ design intent. This will become painfully evident after all of the costly infrastructure is installed, and when there is little or no time left in the schedule to make amends.

“In the 19th century United Kingdom, architects and builders were required to maintain budgets. They absorbed any overages.

Boutique” architects designing ultra-high-end projects end up all over the map in terms of the integrity of their designs and the cost to build their projects. The same is true of high-end contractors, who aspire to this most lucrative building sector. Such disparity lends itself to the wild fluctuations in practice that invariably lead to defect complaints.

Of course, it is the construction expert who will ultimately evaluate and assess workmanship defects. However, it is up to the attorney to choose the right expert for the case. In order to do this, an attorney should have at least a basic understanding of what makes high-end residential construction litigation so very different from all other construction litigation, such that he can make the most informed decision, and choose the right expert for his case.

Luxury: Custom or off the Rack

Custom high-end residential construction must be differentiated from luxury residential construction: whereas both niches are in the top price tier, luxury construction – in modern parlance, nowadays refers to redundant Modernist glass tower condominiums featuring fit-outs designed by boutique architects and interior designers. The units all receive the same interior treatments. Such standardization keeps these construction schedules moving forward and defects to a minimum. There is little time or interest in customizing luxury developer work, as customizations simply slow down the cycle.

As one would expect, defect claims are (nowadays) unusual in luxury residential development. Custom high-end residential construction also features accomplished designers and architects; however, these designers are tasked with creating a more or less unique design according to each of their clients ’budgets and vision. That may not sound like much, but it can be a long, drawn out, tedious process. The level of scrutiny is considerably higher in custom high-end residential construction than it is in developer work. Accordingly, an architect can cycle (design and build) several identical apartments in a fraction of the time it would take to design one or two customized units.

“design standardization in the high-end is more efficient, but NYC is still the most expensive place to build on the planet.

The timeline from design through build is considerably longer in custom high-end residential construction, than it is in the developer market, because custom work invariably requires an extended design and development window before construction drawings can be developed. Production and installation is also protracted.

“Building are going up at a feverish pace, yet any efficiencies have done little to reign in skyrocketing costs.

A developer I work with needs about sixteen-weeks to turn around a typical two-bedroom unit, in an eighteen-story condo. All the units have construction drawings, and preorder of standard materials. There is little or no design and development period. By comparison, a similar gut-renovation for a custom high-end renovation might have a twelve month design window, and twelve to eighteen month construction window.

Finally, there are no close working relationships to gum up the works between developer architects and condominium buyers, whereas building custom homes can best be described as a short, stormy, three-way marriage between the boutique architect, the well-heeled – and not atypical arrogant owners, and the contractor. Such projects are often fraught with indecision, lack of documentation, and persistent change orders. I believe that the more personal a construction contractual relationship becomes, the more the likelihood for conflict. This circumstance describes a majority of the cases I have been involved with.

Your construction expert

The trouble with finding experts offering opinions on high-end residential construction architectural workmanship defects is that projects with defect claims typically involve systemic defects across five or ten trades. Defects are abundantly evident in a job gone south across the entire project. Depending on the value of each component of the claim, you might seek an expert who specializes in the area where the most substantial claims lie, rather than try to find a construction expert for every condition.

Why are defects often systemic? Because it is typically the general contractor who is responsible for hiring craftsmen with the appropriate skill-level for a given project. The contractor determines what skill-level is appropriate, and builds the project based on that rubric. If it turns out that the general skill-level of the tradesmen he hires is below the architect and owners’ standards, it will be evident in most of the visible work – particularly, all the finish and cabinetry trades. It will also be evident behind the walls and ceilings.

Why would a contractor endeavor to build to a level below what would be acceptable to the owner? Sometimes, he does so inadvertently: he may be ignorant, incapable, or inexperienced in the level of workmanship and quality expected of him; he honestly believes he can deliver high-level work, and may even have a different conception of what it should look like, or he may simply be trying to maximize his profit by skimping on lower-paid, unskilled tradesmen. This latter circumstance is not inadvertent, and is considered to be unscrupulous business practice.

“Specialization is key, yet never assume you a licensed engineer automatically trumps a building industry expert. My argument is that the former lacks practical experience, and the latter theoretical experience.

All construction experts are not equal. Construction expert engineers tend to be specialized: if you want an opinion, for example, on a structural, electrical, or plumbing claim, you would seek an expert in his respective calling, who need not necessarily be an engineer. However; interior fit-out seldom requires an engineer’s opinion, nor does it merit one. Typically an expert in a trade such as woodworking, or ornamental iron, could assess architectural defects within their bailiwick, and they may appear to be the one in the best position to do so; however, that does not guarantee they will make a good witness.

A construction expert may have any specialty, or they may be trying to be the one-size-fits-all expert. I am dead-set against a construction expert offering opinions on matters for which he or she has little or no practical exposure or insight. Turning away work is an exception that few experts take, or can afford to take, and that is why there are so many experts practicing outside their element.

Do Architects Make Better Experts than Trade-Experts?

Many architects also provide construction expert witness services to support defect claims. Some are better at it than others. Their dalliance into the defect construction expert market is not welcome by those in the construction industry. Yet, few architects I have met have actually ‘worked the tools,’ a prerequisite to expertise in means-and-methods and critical insight to the comprehensive nature of a given defect. In other words, they may be able to identify the defect, but will be hard put to demonstrate cause, its impact, or the cost of remediation, due to limited technical prowess. For that reason, architects with little or no field experience bring less to the table than a seasoned trade expert.

My uncle was an FAIA. He rebuilt an 18th century farmhouse, turned wood, and was hands-on as they come. I’ve met very few besides him of that caliber.

For my money, trade experts typically have vastly more experience than architects in terms of number and diversity of projects. For example, within his own small firm, a project architect may have been involved with three of his own projects a year, for twenty-years, whereas an architectural millwork expert may have built fifteen of his own projects each year, for twenty-years.

The same is even true of assessing the value, integrity, of architectural drawings. The tradesman has the advantage again – in addition to his three-hundred built projects, he has estimated thousands of drawings, with hundreds of different architects, as opposed to the narrow exposure of an architect, who only sees the comparatively few jobs that he is commissioned. Thus, who would be in a better position to testify as to what is typical across the industry?

” a site superintendent can read drawings as well as an architect. The difference is – the former is a builder, the latter a facilitator.

In terms of technical insight: if for instance, a kitchen is to be designed, the architect will generally prepare basic elevations and details, which are relatively schematic, as compared to the copious shopdrawings a millworker’s draftsman will have to prepare based on the architect’s schematics. The notion being that the architect is not concerned with how the cabinets will be constructed: only that they look like his drawings. That being said, who is in a better position to opine on the nature of a structural defect?

Finally, when it comes to valuation of a claim, most architects will simply not be able to do the math. Although they are supposed to have a general knowledge – $/square-foot, depending on building type, of the construction dollar on their projects, they will be hard-put to give any detailed sort of breakdown, or even accurate unit-price, in the way that a seasoned construction estimator or general contractor might. When architects require cost control of their clients’ construction budgets, they are typically wholly reliant on their general contractor’s estimator to generate any sort of detailed budget, or value engineering options. After all, architects are not contractors.

On the other hand, well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”

Final Selection

Whether you plan to solicit a construction expert opinion from an architect, a tradesman, or both, use these Best Practices in selecting your high-end expert:

1. Educate yourself about the specific nature of the claim: this knowledge will help you in determining which construction expert you might seek.

2. Set up a game plan to determine which experts you will call to testify: architect, tradesman, other …

3. Interview at least three experts for each area of expertise you expect to provide testimony

a. Have they testified before?

b. Have they prepared construction expert witness reports?

c. Are they experienced in high-end construction?

d. Do they have experiences in similar cases?pert

4. Ask for statement of qualifications

5. Contract: no expert should be retained without a contract. Most experts have their own form.

Conclusion

Well-educated architects may be more eloquent, and may convey a more compelling image to an arbitrator or jury, than humble tradesmen, who tend to be less educated. This is a quandary for attorneys: “do I use the well-spoken but less informed architect over the seasoned tradesman who has little testifying experience?”

The answer is: it depends. The defect(s) may be a function of an architect’s errors and omissions, for which most architects are insured against. Perhaps he specified incompatible materials, or stressed material beyond their tolerance. In that circumstance, an architect may provide the best opinion., Alternatively, there may have been nothing wrong with the specification of the materials, and the defect may be wholly attributable to poor workmanship. To be sure, a peer tradesman is well positioned to give an opinion on the nature of the defect. However; any decent architect can also assess the same cosmetic defects.

At the end of the day, it is not the specific vocation of the expert, but the integrity of the construction expert witness and the experience and insight he has to offer that should inform your expert selection. There are some great expert architects and tradesmen in the industry who are well suited to certain types of claims. The trick is to find just the right one for your case.

Leave a Comment May 30, 2017

The Challenge of Presenting Treating Physicians

 

By: E. Drew Britcher and Armand Leone,  of the New Jersey Law Journal, an ALM publication.

Lawyers from both sides of the litigation aisle have long battled over the presentation of opinions by treating physicians, not only with each other but with the physicians themselves and with the strategic and practical considerations of producing them. This should not be a surprise to anyone who has tried more than a few cases, but jurors tend to be more suspicious of the opinions of doctors who have been retained for litigation purposes. This was effectively confirmed by the New Jersey Supreme Court in Stigliano v. Connaught Labs , 140 N.J. 305 (1995), when the court stated:

Without impugning the expert witnesses who may testify for either plaintiffs or defendants, the treating doctors may be the only medical witnesses who have not been retained in anticipation of trial. A jury could find the treating doctors’ testimony to be more impartial and credible than that of retained experts.

However, despite that credibility, the AMA’s position in section 9.07 of their Principles of Medical Ethics that physicians must reasonably cooperate with their patient’s litigation support, and the decision in Spaulding v. Hussain , 229 N.J. Super. 430, 440 (App. Div. 1988), noting that “unless otherwise agreed, a physician treating an accident victim ‘impliedly agrees to appear and testify on behalf of his patient on issues such as the nature, extent and causality of his patient’s injuries,” many doctors are less than cooperative in a patient’s litigation.

Following the Stigliano decision, where neither of the involved doctors had prepared any reports of their opinions, it became accepted that doctors could testify to any opinion on causation that they had arrived at, during the course of their medical treatment. Subsequently, the Rules of Court were amended to reflect a requirement that the identity of experts and treating physicians, who would testify at trial, and their reports, be produced in discovery. While this represented no change as to experts or treating physicians offering certain opinions arrived at for the purpose of the litigation, such as an opinion on permanency, to many, this is a departure from what the court said in Stigliano.

 

Enter the court’s decision in the matter of Delvecchio v. Township of Bridgewater , 224 N.J. 559 (2016), a LAD case where the testimony of a treating physician regarding a plaintiff’s disability was sought to be introduced. The court, citing to past precedent, cited with the Stigliano matter, stated:

The testimony of a treating physician is subject to an important limitation. Unless the treating physician is retained and designated as an expert witness, his or her testimony is limited to the diagnosis and treatment of the individual patient. Given that distinction, if a particular claim requires testimony beyond the plaintiff’s own diagnosis and treatment, the plaintiff may require the testimony of an expert, conforming to NJRE 702 and 703.

Delvecchio, 224 N.J.at 579.

This requirement places the attorney that is seeking that doctor’s testimony at conflict with the doctor, who takes the position that they did not bargain for being involved and inconvenienced by the plaintiff’s litigation or who demands an outrageous fee for meeting their ethical obligations to their patient. Plaintiff’s counsel sought to have the court conclude that the report required by the combination of Rules 4:17-4(a), (e) and 4:10-2(d)(1) is only an obligation that exists if one is prepared—a contention the court specifically rejected. “Under the court rules, a party seeking to present physician testimony at trial must disclose the substance of the witness’s anticipated testimony, and the basis for that testimony, if requested to do that in discovery.”

So, what is a lawyer supposed to do when a doctor refuses to prepare a report? On the plaintiff’s side, one alternative is to have all the plaintiff’s medical records reviewed by a separate physician and have that doctor examine the patient and testify to the whole of the opinions needed about care, treatment, causation, disability and permanency. This would lose the innate credibility that a truly coincidental treating physician’s would potentially hold. So, the alternative is that an attorney should contact the physician and his/her staff and arrange to speak to the physician at a time convenient to the doctor and determine what opinions are not reflected by the doctor’s records and prepare a summary of the treating physician’s anticipated testimony. Should the doctor remain recalcitrant to writing a report or agreeing to an interview, one can always serve the doctor with a subpoena for a deposition. While this may not enamor one to the doctor, it will often get their attention sufficiently to get them to agree to one or the other. Not only is this something that practitioners have done in such situations before Delvecchio, the use of a summary of opinions is an authorized approach in our Rules regarding criminal procedures, as well as being what the court suggested that the Civil Practice Committee consider as an amendment to the rules at issue.

Let this not suggest that this is only the plaintiff’s counsel’s headache. The decision would seem to place a similar onus on defense counsel who might want to elicit testimony from treating physicians that is damaging to the plaintiff, akin to what the defense obtained in Stigliano. So how do they comply? The answer lies in the use of the interview process under Stempler v. Speidell , 100 N.J. 368 (1985). The defense attorney should send the plaintiff’s counsel an authorization to be signed by their client permitting an interview of the treating physician, arrange for the same, and then likewise prepare and serve a summary of the physician’s anticipated testimony. The failure to do so would seem to place defendants in a similar position of possibly being barred from calling the treater.

This approach by each side should not only satisfy the adversary and the court, it should let the practitioner sleep more soundly at night.•

 

Britcher and Leone and are founding partners of Britcher Leone LLC (www.medmalnj.com) based in Glen Rock.

Leave a Comment May 12, 2017

Elite Plaintiffs Lawyer Accused of Concealing Payments to Expert Witnesses

Originally published on Law.com, an ALM Media publication, on May 5, 2017.

By: Amanda Bronstad

Johnson & Johnson, hoping to reverse a $502 million verdict, is accusing plaintiffs attorney W. Mark Lanier of lying to a federal judge and jury about payments he made to two expert witnesses in a pivotal hip implant trial last year in Dallas.

The allegations against the Houston lawyer surfaced in documents unsealed this week by the U.S. Court of Appeals for the Fifth Circuit, which is hearing Johnson & Johnson subsidiary DePuy Orthopaedics Inc.’s appeal of the verdict. In an April 18 appeal brief, Johnson & Johnson lawyers Paul Clement and John Beisner said a “strange thing happened” when they started deposing the experts for a subsequent trial: The plaintiffs turned over checks written out to the experts, both of whom Lanier had insisted were not compensated for their testimony.

“Plaintiffs’ concealment of the fact that two critical expert witnesses had been paid or expected to be paid—at the same time their volunteer status was trumpeted to the jury and used to evade the expert-report requirement—deprived defendants of their ability to fully and fairly defend themselves,” they wrote.

The revelations, the lawyers argue, warrant a new trial and could undermine “the reliability of the entire bellwether process.”

Clement, a former U.S. solicitor general, is a highly regarded appellate lawyer and partner at Kirkland & Ellis in Washington, D.C; Beisner, who heads the mass torts, insurance and consumer litigation group at Skadden, Arps, Slate, Meagher & Flom in New York, is national litigation counsel to Johnson & Johnson.

They claim Lanier donated $10,000 to one expert’s grade school, followed by a $35,000 check for his services. A second expert, they wrote, allegedly admitted that he had expected to be paid from the start; once the trial ended, Lanier cut him a check for $30,000.

In an email, Lanier called the allegations “laughable if it weren’t so sad.”

“Everything I SAID WAS 100% ACCURATE AND TRUTHFUL,” he wrote. “J&J paints a one-sided version, fails to tell the whole story, and leaves a false impression.”

Lanier added: “This brief is what the underlying case was full of: J&J intimidating and disparaging anyone who dares to stands in their way and seek to hold them accountable.”

Lanier’s response in the Fifth Circuit is due May 17.

“There was no agreement”

On Dec. 9, a district judge in Dallas rejected Johnson & Johnson’s motion for new trial based on the same allegations. In that order, which also was unsealed this week, U.S. District Judge Edward Kinkeade of the Northern District of Texas found no evidence of fraud.

“The evidence before the court tends to show that at the time of trial there was no agreement for compensation between plaintiffs’ counsel and the [experts],” the judge wrote. The defendants also ignored the fact that their own experts received “far larger payments” for their testimonies. “Defendants have not shown how evidence of plaintiffs’ experts receiving a fraction of the compensation of defendants’ experts would have produced a different result at trial.”

The $502 million verdict in March 2016 was followed by a $1.04 billion verdict on Dec. 1, 2016 in the second and third bellwether trials in multidistrict litigation over DePuy’s Pinnacle hip implants. (The $1 billion verdict was later cut to $540 million.) More than 9,000 lawsuits have been filed alleging the devices caused pain and subsequent removal surgeries. DePuy won the first verdict in 2014.

The Pinnacle is one of several mass torts that resulted in substantial verdicts against Johnson & Johnson in 2016.

The verdict challenged by Clement and Beisner awarded five plaintiffs and three of their spouses. The jury found DePuy had failed to warn that its hip implant was defectively designed and that Johnson & Johnson aided and abetted DePuy’s actions.

DePuy has filed two appeals of the judgment. One, backed by the U.S. Chamber of Commerce in an amicus brief, challenges the “inflammatory rhetoric” at trial and a host of other “legal flaws.” The other involves the expert payments.

In that appeal, Johnson & Johnson’s lawyers wrote that Lanier’s misrepresentations about both experts, Drs. Bernard Morrey and Matthew Morrey, put him at an unfair advantage at trial. The unpaid status of his experts, who are father and son, were a central theme at trial, often contrasted with the “bought testimony” of the defense witnesses, they wrote. By insisting they were unpaid, Lanier ensured that DePuy would not have an opportunity to review expert reports prior to trial, they wrote.

They also cite Lanier’s letters to both experts a month after trial in which he noted that their testimonies “made a real difference to the jury” and felt it was unfair that they hadn’t gotten paid. The letters accompanied the two checks. Both witnesses ended up being designated as paid experts in the third bellwether trial.

But Lanier wrote there was never any financial arrangement with the experts during the trial, and neither expected to get paid by plaintiffs’ attorneys, according to his response to DePuy’s original motion. Once the second trial ended, both got checks after Lanier had a “change of heart.”

“Only by creative interpretation, omission, and outright misrepresentation are defendants able to suggest an improper arrangement that never existed,” he wrote.

 

Amanda Bronstad covers mass torts and class actions for ALM. Contact her at abronstad@alm.com. On Twitter: @abronstadlaw

Leave a Comment May 5, 2017

Expert Witness Confronts Pharmaceutical Giant, GSK.

Originally published in The American Lawyer, an ALM Media publication, March 22, 2017.

*Part of the ALM family of award-winning legal products and publications.*

By: Roy Storm, The Am Law Daily

The bad blood between Dr. David Healy and GlaxoSmithKline plc brewed up long before the psychiatrist took the stand in a Chicago federal court last week to testify that the pharmaceutical giant hid the risk of suicide in its blockbuster antidepressant Paxil.

Healy’s testimony is the bedrock of a claim brought by the widow of a Reed Smith partner who committed suicide in 2010 while taking a generic version of Paxil. GSK argues that Stewart Dolin’s death was the result of stress from a diminished role at the firm following a 2007 merger. Dolin’s widow, who claims her husband died from an adverse reaction to Paxil, is seeking $12 million from GSK.

All GSK has wanted is for the fast-talking psychiatrist to stop testifying.

Healy, a professor at a British university and a practicing physician in Toronto, has been a thorn in the pharmaceutical giant’s side since about 1999, when he wrote “The Antidepressant Era” and first began raising concerns about GSK’s clinical trials related to antidepressants known as SSRIs, or selective serotonin reuptake inhibitors. In 2005, The New York Times profiled Healy, noting that he was “internationally known as both a scholar and a pariah.”

“You don’t really know who you can trust,” Healy told the paper.

Healy has been a longtime expert witness in cases against GSK. His all-day direct examination in Chicago last Thursday was followed by a six-hour cross-examination this week. Healy said he had testified in more than 10 cases against GSK, something the company’s lawyers at Dentons and King & Spalding made a spirited effort to prevent in the Dolin case.

Healy’s testimony, for instance, was admitted in a suit in the Southern District of Indiana involving the sister of a priest who committed suicide after taking paroxetine, the trade name for Paxil. That case appears to have settled in 2011. And in 2015, Healy was an author of a new review of clinical Paxil trials on teenagers, which led to headlines that the drug was unsafe for teens.

The heart of Healy’s testimony contends that GSK artificially inflated the number of suicides and suicide attempts committed by members of the placebo group during clinical trials for Paxil. That had the effect of minimizing the risk of suicide associated with the antidepressant, meaning there was no warning of suicide risks on the drug’s label.

In the Dolin case, GSK’s lawyers filed a motion to exclude Healy’s testimony in the Dolin case, writing a 46-page memorandum with 70 attached exhibits arguing that Healy was a financially biased witness with an axe to grind against GSK.

The filing asserts that the lead plaintiff lawyer in the Chicago case, Michael Baum, a senior managing partner of Los Angeles-based Baum, Hedlund, Aristei & Goldman, is an investor in a company founded by Healy. That company runs a website, RxISK.org, which GSK’s lawyers said helps promote suits against the pharmaceutical industry. The filing also said Healy’s personal blog showed his bias against GSK, including his purported belief that the company helped get him fired from a previous professor position and may have been behind an investigation that could have led to his medical license being revoked in the U.K.

U.S. District Judge James Zagel ruled that Healy (pictured right) could testify in the Dolin case. But at the trial, presided over by U.S. District Judge William Hart, lawyers could not ask Healy about his blog or his personal relationship with GSK.

King & Spalding life sciences and health care litigation co-chair Andrew Bayman asked Healy if his website was intended to make it easier for the public to file suits and to garner work for himself as an expert. Healy testified that he bills $750 an hour to testify and $400 an hour to review cases.

But as was the case with many of the points that Bayman tried to pin Healy down on, the psychiatrist was prepared with a response to that charge in court Monday.

The website “has nothing to do with supporting lawsuits. This is all about minimizing the problem so there won’t be lawsuits,” Healy said, adding that Baum’s investment in his company, “would probably put him out of business.”

Proceedings in the Dolin case are continuing this week in Chicago. Some of his former Reed Smith partners are expected to take the stand.

 

Roy Strom is based in Chicago, where he writes about the business of law and the changing nature of law firm client relationships. He can be reached at rstrom@alm.com. On Twitter: @RoyWStrom.

Leave a Comment March 24, 2017

Motion Denied Because of Expert Witness Testimony

Originally published in The New York Law Journal an ALM Media publication, March 13, 2017.

*Part of the ALM family of award-winning legal products and publications.*

  • Supreme Court, Nassau County, IAS Part 7
  • 601626/2014
  • Justice Arthur M. Diamond
  • For Plaintiff: For Plaintiffs: Kushnick Pallaci, PLLC.
  • For Defendant: For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

Cite as: Percora v. Bankers Standard Ins. Co., 601626/2014, NYLJ 1202780991401, at *1 (Sup., NA, Decided March 1, 2017)

CASENAME

Frank Percora and Lisa Percora, Plaintiff v. Bankers Standard Insurance Co., ACE Private Risk Services, Defendants

601626/2014

Justice Arthur M. Diamond

Decided: March 1, 2017

ATTORNEYS

For Plaintiffs: Kushnick Pallaci, PLLC.

For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

The following papers having been read on this motion:

Notice of Motion 1

Opposition 2

Reply 3

 

Defendants herein move for summary judgment to dismiss the Plaintiffs’ complaint pursuant to CPLR §3212. Plaintiffs oppose the instant application. After consideration, Defendants’ motion is denied in its entirety.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Summary judgment is the procedural equivalent of a trial and must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable. Rivers v. Birnbaum, 102 AD3d 26, 953 NYS2d 232 (2nd Dept., 2012). In considering a motion for summary judgment, the function of the Court is not to determine issues of fact or credibility, but merely to determine whether such issues exist. Id. at 42, 243.

In general, it is the insured’s burden to establish coverage and the insurer’s burden to prove the applicability of an exclusion. Great American Restoration Services, Inc. v. Scottsdale Insurance Co., 78 AD3d 773, 911 NYS2d 142 (2nd Dept., 2010). An exclusion from coverage must be specific and clear and any ambiguity must be construed most strongly against the insurer. Id at 776, 142. The test for ambiguity is whether the language is susceptible of two reasonable interpretations, and the focus of the test is on the reasonable expectations of the average insured. Id. at 776, 142-143.

The action before the Court arises out of damage to Plaintiffs’ home in Long Beach, New York, as the result of Superstorm Sandy. Plaintiffs’ complaint has a single cause of action for breach of contract. The allegations in the complaint refer to damage to Plaintiffs’ home solely caused by the high winds of the storm, only. The interrogatories of Plaintiffs attached to Defendants’ moving papers acknowledge that they did not have a flood insurance policy in place at the time the alleged damage was sustained to their home.

Defendants’ motion for summary judgment to dismiss the complaint is based upon the premise that all of the damage to Plaintiffs’ home as a result of the storm was caused by water, which is excluded from coverage under the policy. In support of this position, Defendants attach excerpts of depositions transcripts taken of Plaintiff Frank, as well as three expert witnesses disclosed by Plaintiffs during discovery. None of these transcripts are in their completed form and all have had pages from the transcript removed prior to submission herein. Defendants have not attached an affidavit or a complete deposition transcript such that would allow the Court to consider their papers to be sufficient to consider judgment as a matter of law. By reasons of this defect, the Defendants’ request is appropriately denied in its entirety. See Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 864 NYS2d 554 (2nd Dept., 2008); see also generally Marks v. Robb, 90 AD3d 863, 935 NYS2d 593 (2nd Dept., 2011).

Even assuming, arguendo, that Defendants did properly include full copies of certified depositions transcripts of the Plaintiff and/or any one of its experts, Defendants motion still cannot be granted. It appears uncontroverted by the papers that Plaintiffs did not have flood insurance for the subject property; moreover, nowhere in Plaintiffs’ opposition papers do plaintiffs suggest that damage caused by water should be covered under the policy, as the exclusion clause for water is clear. Instead, Plaintiffs argue that the damage asserted that is part of the denial of coverage by Defendants was for wind damage, which is clearly covered under the policy terms.

In reviewing the complete transcript of Plaintiffs’ expert witness Boccia, as well as the complete transcript of expert witness Wallwork, both attached to Plaintiffs’ opposition papers, there are triable issues of fact that are certainly outstanding. For example, Defendants in their moving papers suggest that both of these witnesses acknowledge that the damage to the home of Plaintiffs was caused by water only. However, the completed transcript of Mr. Boccia on pages 62 through 69 make clear that damage can be attributed to wind, or water, or both, and that damage, such as racking, can be attributed to wind alone regardless of the water damage that may have occurred to the home. Similarly, Mr. Wallwork testified that he too was able to parse out damage cause by wind alone versus damage caused by water either in whole or in part. For this reason, granting of summary judgment to Defendants would be improper, and the instant motion is hereby denied.

Given the foregoing, the parties are directed to appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on March 30, 2017 at 9:30 am.

This hereby constitutes the decision and order of this Court.

Dated: March 1, 2017

Original Source: http://www.newyorklawjournal.com/id=1202780991401?keywords=expert+witness&slreturn=20170210091937 

Leave a Comment March 10, 2017

Milberg Strengthens Litigation Support and Data Hosting with Division SpinOff

Milberg Announces Spin Off of Litigation Support and Data Hosting Services Division: Based in Stamford, Conn., the new business will continue to serve litigants throughout their discovery process from the start of a case assessment to trial.

Original published on: Legaltech News, November 19, 2015

By: Trudy Knockless

Milberg, a class action and complex litigation firm, has made structural changes, spinning off its litigation support and data hosting services division into an independently-owned business.

Renamed Meta-e Discovery, the new business will continue to serve litigants, mainly plaintiffs, throughout the discovery process from the beginning of a case assessment to trial.

“The principal purpose [of the spin off] is to enable the business to be more flexible and nimble to its litigation support and data hosting clients’ needs. Working under the umbrella of a law firm can pose some limitations insofar as growth opportunities, including servicing other law firms. We now have a broader base for business development,” Paul H. McVoy, who was appointed Milberg’s chief discovery officer in February, told Legaltech news. He said this move will enable the company to market itself in a new, distinct way, which will allow it to grow dramatically in the short term.

The new business can now bring in services that may not have made sense in the law firm context, forensics and consulting for example. Additionally, the company has an opportunity to create strategic alliances that allows them to offer more services from a wide base of service providers that will complement the services offered by Meta-e.

“We will continue building a go-to discovery resource for small and midsized firms and entities that have been traditionally overlooked by the bigger electronic discovery providers,” McVoy, who has been with Milberg for more than six years, added. “We will also be able to cater to plaintiff firms in a way that no one else can because we came from the plaintiff bar; we have crafted customized workflows that uniquely serve that bar.”

Milberg’s litigation support and data hosting services division was formed five years ago as a spin-off to its eDiscovery Legal Practice.

“This is the logical next step for what we have been building,” Ariana J. Tadler, executive committee member and group founder, said in a statement. “The new company is the perfect model for law firms seeking e-discovery services from those who have been in the trenches fighting the battle every day in real cases.”

Based in Stamford, Conn., the new business will continue to manage Milberg’s ongoing litigation support needs, as well as current customers. Meta-e Discovery will assist customers in maximizing the benefits of its existing Relativity Platform with its own proprietary workflow that aims at leveraging technology-assisted review that applies to productions received. Additionally, the company will develop new mobile computing and artificial intelligence software, specifically geared to the discovery process.

“We are very excited by this move,” McVoy told Legaltech News. “The reception in the legal community and service provider community has been extremely positive. The market recognizes that there is an underserved segment that desperately needs the services, experience and expertise we offer. We look forward to helping these firms litigate their cases with the same tools as the larger firms, and as we are fond of saying, ‘leveling the discovery playing field.’”

 

Original Source: http://www.legaltechnews.com/id=1202742914129/Milberg-Announces-Spin-Off-of-Litigation-Support-and-Data-Hosting-Services-Division#ixzz3s4IjX3Wc

Leave a Comment November 20, 2015

Tech in Trial: Advancing Techniques Means Increased Preparation

If a Picture is Worth a Thousand Words, Is a Trial Tech Expert Worth $200 an Hour?

Originally published on: The Litigation Daily, November 10, 2015

By: Jenna Greene

 

Andrew Cox, who leads Thompson Hine’s product liability practice, is a Gen Xer, the kind of guy you might think would be all over using technology in the courtroom. He even has a goatee.

But the 43-year-old litigator is distinctly old-school when it comes to presentations in court.

He won a trial in May, a defense verdict in Ohio state court case involving a fatal plane crash.

The plaintiffs used fancy animation—a short video depicting their version of what went wrong.

Cox had a big aerial photo of the airport mounted on a magnetic board. And he had magnets showing where each eye witness was positioned, plus a magnetic airplane he could move across the photo.

“We used it in the opening, our experts used it, we used it in the closing,” he said. “And it was tangible—a Google Earth photo. People knew it was real.”

As for the animation, he said the plaintiffs lawyers were constantly starting, stopping and replaying it, dividing the jurors’ attention between the screen, the expert witness and the tech doing the rewinding.

“I’ve never seen a perfect animation,” Cox added. In this video, a small detail was off: the accident took place in Ohio in March, when the trees are still bare. In the animation, the trees were green and leafy.  It was a subtle reminder that the events depicted weren’t real, he said.

In the end, neither the video nor the magnet photo was probably the deciding factor for the jury. But it’s all part of the bigger task at trial: to tell your client’s story.

The question is, what visual aids will help accomplish that, and which might be glitzy distractions? Do you have the wisdom to tell the difference?

Robb Helt, director of trial technology for Suann Ingle Associates, makes a compelling case that the best reason to hire a tech consultant is not to get “someone sitting behind the scenes putting things on a screen and pushing buttons,” he said. “A monkey with enough bananas can push buttons.”

Rather, trial technology consultants offer experience—the best of them have seen more trials than most lawyers. Helt, for example, has racked up 513 trials, arbitrations and mediations since 1999. Among them: 16 months as Halliburton’s trial technology consultant in the Deepwater Horizon oil spill litigation.

As a result, he said, he’s developed  “a really good feel for what’s worked here and not there.”

Lawyers often “have an idea of what they want, but not what they need” when it comes to using technology to present their cases, Helt continued.

For about $200 to $250 an hour, consultants can help figure that out, design the graphics and make sure it all works seamlessly in court. They can also make sure lawyers don’t “over-egg the pudding” with too many high tech elements, Helt added.

But it’s not the easiest time to be a trial technology consultant. For starters, fewer cases are going to trial. And the technology is getting easier to use—which means more lawyers are bypassing the consultants and doing it themselves.

In large part, credit the iPad and apps like TrialPad, which for about $130 can do nifty things like highlight text, create side-by-side document comparisons and edit and show video clips.

“An iPad not only increases an attorney’s mobility in the courtroom, but it also allows the attorney far greater control over the presentation of evidence to the judge and jury,” wrote Alexander Rusek of White Law in an article  last year for the American Bar Association’s trial evidence committee. “No longer must an assisting attorney attempt to coordinate the presentation of exhibits or highlight or enlarge the exact portion of an exhibit for the presenting attorney.”

Which is great, provided the attorney doing the presenting knows what he or she is doing.

Solo practitioner Carolyn Elefant, who writes the blog My Shingle, last month told of prepping for her first jury trial in more than a decade. She opted to use an iPad for photos, charts and presenting impeachment material to the witnesses. And she learned how to do it 10 days before the start of trial.

She won three six-figure verdicts for her clients.

“While ultimately, it was the strength of the prep, the evidence and fact and expert witnesses and not the iPad that produced the win, the iPad allowed me to present that evidence in a far more professional and seamless a manner than would have been possible at my last trial ten years ago,” she wrote.

Contact Jenna Greene at jgreene@alm.com or on Twitter @jgreenejenna.

Original Source: http://www.litigationdaily.com/id=1202742147525/If-a-Picture-is-Worth-a-Thousand-Words-Is-a-Trial-Tech-Expert-Worth-200-an-Hour?mcode=1202615798744

Leave a Comment November 11, 2015

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