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November 07, 2010

Most Common Attacks on an Expert Witness During Cross Examination?

-GUEST POST-

Initially, opposing attorneys might attack your qualifications and credentials. Perhaps your degrees were not directly on point to the case or you did not even complete a degree program. Maybe your background in the industry was not on target. Are your expertise or degrees out of date? What have you done recently that is directly related to the particular case about which you are opining? Are there time gaps in your professional work background? What were you doing during those gaps? Are there any discrepancies between your CV and the credentials listed on your business website or your university's website?


Prepare reasonable answers to any questions you can think of about your qualifications and credentials. Assume that the opposing side will see or discover opportunities for attack here. Don't ignore any weakness in your accomplishments and credentials. Discuss such a weakness in advance with your retaining lawyer. He may well want to consider addressing the weakness in some fashion to minimize it during direct testimony.

Next, you will almost always be attacked for some form of bias. Perhaps you always work for the defense, or always work for the plaintiff. Have you worked frequently for this particular law firm that hired you? Perhaps you have written something that expresses a clear-cut advocacy for a cause that may be connected to this case. Have you recently written something silly but on point and now public on your Facebook, Linkedin, or Twitter account? Think ahead to what possible opportunities may exist for attempting to convince the jury that your testimony is slanted. Prepare answers to those efforts that may paint you as a biased expert.

Next, attorneys will attempt to call into question the factual basis of your complete investigation. They may claim that your facts were inadequate, and even seek your support by asking questions that suggest other steps that you may have missed or other procedures that you may have chosen not to include. Stay confident of your work, but prepare to answer questions that suggest inadequacy. Be prepared to describe what things you chose not to do and why. Also be prepared to express confidently why the scope of your work was enough to lead you to your conclusions.

Remember that you do not need absolute opinions. You only need to express your best opinion, based on the most probable scenario and to a reasonable degree of scientific or medical certainty.

good cross examiners have a set of reliable questions that attack the adequacy of expert witness investigations. When asked during cross examination, it will be devastating if any of them hits home and can demonstrate either oversights or weaknesses in your work effort. I discussed several of these types of questions in Lesson 9. If you do not recall those, you can review them in the section of Lesson 9 entitled "questions meant to attack the factual basis of your testimony."

You may fall prey to such questions because your lawyer or his client told you it was unnecessary to do so-and-so or that they did not want to spend the money for you to do such-and-such. You might not have been permitted to run additional tests. You might not have been allowed to complete certain site reviews. You might not have been authorized to create reconstructions of certain events.

You may have the best intentions but from time to time, you may be subjected to limitations that restrict what you can do or say. You will have to discuss that with your lawyer. You may need to prepare explanations. You might dismiss the omission as unimportant, or as something that you chose not to do because it was not necessary. If any of those activities that you did not do were required, then you may no longer be able to express the opinion you expressed.

Judd Robbins has been an internationally recognized expert witness since 1986 in the US and in the UK. He has testified in State and Federal courts and has been featured as a testifying computer forensics expert on MSNBC, Court TV, and Tech TV. His cases range widely from intellectual property infringement to murder. He has been a best-selling author of more than 30 training and computer books and has created more than 25 training DVDs and videos. In 2010, his book "Expert Witness Training" was published by Presentation Dynamics. Robbins has advanced degrees from UC Berkeley and the University of Michigan, has been an Information Systems manager and an Education Systems manager, and consults in both computer and legal issues. Learn more about Mr. Robbins and his Expert Witness Training materials at http://www.juddrobbins.com

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November 06, 2010

Fair Debt Collection Practices, and How You Avoid Unfair Treatment

-GUEST POST-

You can avoid being treated unfairly by a debt collector under the Fair Debt Collection Practices Act

You can read the act for yourself.

However, anything the debt collector does that is "unfair" or "deceptive" (or could be deceptive to someone who didn't know better) illegal. And these terms were intentionally made very broad to encourage going after all the creative tricks of the debt collectors.

"Assignee" or Original Creditor?

So if, for example, the debt collector did not say it was an "Assignee" in its petition but said instead that it had lent the defendant money, that might be a violation of the Act. The collectors have tried this, arguing that since they had bought the debt from the original creditor they "stood in its shoes" as far as making allegations in the debt collection lawsuit.

But that, of course, is a crock. By purchasing the debt, the debt collector made itself a "debt collector" under the law, and Congress itself has decided that collectors cannot be treated as the original creditors and don't "stand in their shoes" when it comes to collecting debts. Instead, debt collectors must follow numerous rules that do not apply to original creditors.

So you can see that that allegation in the lawsuit violated the FDCPA. It was deceptive and unfair since it was (1) factually incorrect, and suggested that the debt collector was actually the original creditor (different legal rights) or had more information than it did (unfair, intimidating). It didn't matter whether the lawyers intended to deceive the defendant (although I believe they did) it's just illegal for them to do that.

"Card-holder Agreements"

Often the petition will attach something they call the "card-holder agreement." In every case of which I am aware, this has simply been "a" blank, generic card-holder agreement, certainly not signed by the person they were suing.

Do you see how calling it the card-holder agreement made it sound like they have an elaborate file on the defendant? Whereas in reality they had one blank card-holder agreement from the company which it copied and attached to suits against hundreds of defendants.

They had no records. But alleging there was a card-holder agreement made lots of people think the debt collector had the goods on them. That was deceptive and unfair, and a violation of the FDCPA.

Most debt collection cases are decided by default, and this is often because the people being sued believe, through tricks like the above-mentioned, that they have some personal information on them. Debt collectors word their lawsuits very, very carefully--not to be legally powerful or truthful, but to have the maximum intimidating or demoralizing effect on the people they are suing. They make their money by scaring people into giving up, not by winning appropriately filed lawsuits. If they try to intimidate you into thinking they have any real records which they do not have, they are breaking the FDCPA.

General Deception

If you're being sued, look very closely at the petition. Does it include or attach something supposed to be the contract or agreement that isn't signed by you? Do they attach documents supposed to be records from your file? Chances are good that they are trying to intimidate you unfairly. You can call their bluff by standing up for yourself and making them prove their case.

If you are being harassed or sued for debt, you can get a lot of help, much of it free, from my website at: http://yourlegallegup.com.
Or please take a look at a brief video presentation: Or please take a look at a brief video presentation: http://www.youtube.com/watch?v=WcxsiR5vedU.

Kenneth H. Gibert.

I Received a J.D. from Washington University Law School in 1989 and practiced law in St. Louis city and county (federal, state and local courts) for almost fifteen years, the last several of which were focused almost exclusively on debt litigation. My mission is to protect ordinary people from being taken advantage of by the debt collectors. Sign up for a free report and more help for people struggling with debt.

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