The National Law Review
Why stop at excluding expert testimony when you can exclude the expert? For years, expert witness conflicts doctrine has been developed through the federal common law. Although appellate courts have been relatively silent on the issue, trial courts regularly strike experts that have received confidential information from the opposing party. Courts generally disqualify expert witnesses when a prior relationship resulted in access to an adverse party's confidential information, and that information could harm that party's interests in the present case.
Whether an expert has an impermissible conflict is generally determined by a two prong test:
In a recent case in California Superior Court, it was found that if a settlor signs a trust agreement which reflects the trust's ownership of certain realty, it is not necessary that settlor have executed a formal deed of the property of the trust.
Brief Synopsis: A recent case regarding landlord-tenant lease-option to purchase agreement found that the landlord was justified in his eviction of a tenant for failure to pay rent in a lease-option agreement. Further, the installment payments were not credited towards the purchase price hence the tenant didn't have any rights to the property.
Comment: Creating a well written and executed lease agreement protected this landlord with the right to evict the tenant for failure to pay.
Case Synopsis: In a recent Orange County Landlord-Tenant litigation, Tenant was suing landlord for unlawful eviction. Landlord evicted based on tenant's breach of rental agreement stating that the renter must purchase renter's insurance. Lower court found that the failure to have purchased renter's insurance for the renter benefit and not the landlord's is not a material breach of the rental agreement and found the landlord at fault for breach of covenant to evict tenant. However, the higher appeals court reversed this decision and held for Landlord.
Comment: Landlord-tenant litigation such as this is all too often. One way to avoid these issues- read carefully what the lease contract states and abide by it.
Recent Case Trial of a lease addendum between landlord's predecessor in interest and tenant allowing use of the premises' loft for short-term rental to occupants which was and is an illegal use under local ordinance may nonetheless be enforced by landlord to evict tenant for illegal use under the lease.
Brief Case Synopsis: Trial court granted summary judgement for the landlord when landlord sought to evict the tenant from the premises for "illegal use" under the lease. The Court ruled the addendum was an illegal contract and was void and unenforceable. The landlord's consent to the use could not be an affirmative defense to the eviction action.
Any Attorney that has hired an expert witness for litigation support knows how important it is to hire the right one. Is this person truly an expert? Is the expert witness report written well and without legal opinion? If not, a Daubert challenge may exclude your expert testimony from the trial which can be devastating.
As discussed in previous blog posts, Daubert is a direct challenge to the methodology the expert has used to formulate their opinion. When a Daubert challenge is raised, it means the validity and reliability of your expert’s testimony is being challenged. It is imperative that the attorney and expert work as a team to have the proper preparation and strategy before trial.
The Expert Institute lists 6 tips when preparing for a Daubert hearing
1. Beat a Daubert challenge BEFORE it is raised
2. Address ALL parts of a Daubert challenge
3. Get the Court on board
4. Make sure your expert's testimony remains within the scope of their specialty
5. Take note of the time to respond to a Daubert challenge
6. Remember that the Court is a gatekeeper
To read the specifics each tip covers, read the full article from the Expert Institute.
Every Expert Witness should know how their testimony may be challenged in court. Expert witnesses' testimony and expertise in general is subject to challenges of reliability or relevance by opposing attorneys just as any other evidence is.
As a commercial real estate broker with investor clients, it is important to keep up with the current financial trends and terminology. To give sound real estate investment advice, brokers need to be aware of the newest terminology circling the investment world.
Investopedia recently made a top ten list (A shout-out to Letterman?) of the most trending financial terms. Read through the list and note which you already knew and which are new to you. You may be surprised.
10. Backdoor Roth IRA
Coming in at number 10, Backdoor Roth IRA may offer anecdotal evidence that older savers are looking to build a bigger nest egg. A “backdoor” Roth IRA allows wealthy individuals who have reached their contribution limit for a regular Roth IRA to contribute more to retirement. As more than 10,000 boomers retire every day and the threat of a retirement crisis looms, investors are looking for new ways to save for retirement.
Fintech has been a buzzword for a few years now and has taken center stage as robo-advisors and mobile apps for trading stocks threaten to bring down “legacy” financial companies. The rise of fintech will continue as Millennials, tethered to their mobile devices, look for new ways to “hack” the investing world.
8. Gamma Hedging
Gamma Hedging is an active trading strategy meant to hedge risk on options trades. Gamma hedging, tactical trading and intraday momentum used to be for hedge fund managers exclusively, but as technology disrupts many professions that had high bars of entry, more retail investors are becoming sophisticated active traders.
7. Tactical Trading
Tactical trading describes the strategy of active traders, particularly hedge fund traders. As technology disrupts investing – as it has done in so many seemingly permanent domains of life – many investors are becoming more actively involved with alternative investing strategies.
6. Intraday Momentum Index
The Intraday Momentum Index is a technical indicator used by day traders to signal when a stock is trending up or down. High volatility is good for day traders, and many traders were looking for ways to capitalize on markets’ high volatility this year, in particular over the summer when stock market gyrations gave many investors whiplash.
The high-profile success of tech startups like Snapchat and Uber, with their valuations at over one-billion dollars and negative cash flows, prompted skeptical investors to label them “unicorns”: mythical creatures that can’t be real.
4. Exchange-Traded Mutual Fund
As fees increase and returns languish for traditional mutual funds, investors are researching new products, like ETMFs, that combine the advantages of investment strategies of an actively managed mutual fund and the performance and tax efficiencies of an ETF.
3. Negative Interest Rate Policy
The European Central Bank experimented with unconventional monetary policy in 2015 to fight off deflation and pull Europe’s economy out of the doldrums. Negative interest rates penalize savers by making them pay to save. For example, in a regular savings account that offers 5% interest, when you deposit $100, the bank pays you $5 at the end of the year. With a negative interest rate of 5%, if you deposit $100, at the end of the year your bank account only has $95 in it.
2. Grexit / Brexit
In 2015, the global economy was shaken by the possibility of a Greek default on sovereign debt and the failure of the Eurozone as a common currency union. The discussion of Great Britain and Greece exiting the EU prompted us to create these terms.
1. Smart Beta
Smart Beta is a new, popular financial product that attempts to beat indexed funds, but many investors are still not familiar with it. The popularity of smart beta in the industry this year led it to being Investopedia's top term of the year. Because the term is so new and asset management firms don’t always mean the same thing when they use it, investors looked for a second opinion on Investopedia.
Experts and lawyers alike are concerned about what makes an expert witness testimony stand out in trial. An expert is there to clarify and point out subject areas where the judge or jury may not understand. Basically, to help teach the subject at hand to the court. Below is an article recently published on using graphics to help strengthen a testimony. Experts in any field can learn from this and use the concepts and pointers in their next case.
First and foremost, an expert’s job is to teach. If the courtroom were a classroom, than the expert is the professor and the jurors are the students. The true value of an expert’s testimony is its ability to help the jury understand the often complex and technical subject matter an expert is speaking about. The use of illustrative aids to supplement an expert’s testimony is by no means a novel concept- after all, a picture is worth a thousand words. However in recent years the use of trial graphics has taken traditional expert testimony to a new dimension (in some cases, quite literally), especially in medical malpractice and personal injury cases. From two-dimensional enlarged photographs to three-dimensional replicas, the use of trial graphics in the courtroom has come to play a central role in litigation and its impact on the jury cannot be overstated. This is because people, and therefore juries, love visuals. A number of factors such as the substance of expert testimony, quality and nature of the trial graphics needed, jury composition and even the psychology of color are all considered when creating dynamic visual aids to supplement an expert’s testimony in court.
Looks MatterMuch like preparing a great dish, presentation in the courtroom is everything. Trial graphics is what brings the substance of an expert’s testimony to life and gives it meaning. More importantly, it is the most important (if not the only) nexus between an expert’s testimony and a juror’s understanding of that testimony. Without visual aids and illustrative evidence, jurors and even judges in some instances, would be lost as to the highly technical or scientific aspects of an expert witness’ explanation. As transportation planning and engineering expert Dr. Carl Berkowitz points out, visual aids contribute immensely to higher rates of both retention andcomprehension. However creating trial graphics to supplement an expert’s testimony and even further-integrating the trial graphics into the theory of the case involves a large of number of moving parts. So what does this process actually entail? Once an attorney has idea of what an expert’s testimony will be like, a team of trial graphics specialists puts into motion the process of bringing the testimony to life.
To read the full article, click here: Expert Institute
Robert Kehiayan, CPM provides Commercial Real Estate Expert Witness and Litigation Consultant Services in South Orange County, CA.