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Practice Tip: Firing Your Expert
During a recent product liability trial, the plaintiff's expert opined in his original disclosure that the subject machine was defective because it lacked a clutch safety mechanism. Trial counsel, retained just weeks before jury selection, learned from the same expert that no machine in the industry contains such a mechanism. They concluded that cross-examination of the expert on this point would probably outweigh any benefit that such testimony might add to the plaintiff's case, and that a simpler explanation for the accident was the manufacturer's failure to place conspicuous warnings to the user on how to operate the device properly. They decided that it would be wise to have the expert testify about the missing warnings instead of the design defect. The problem was that the expert's design defect theory had been presented in the plaintiff's pretrial disclosure statement, which had been served on the defendants, but nothing was disclosed about the failure to warn.
Should counsel call the expert to present his modified theory of liability to the jury and deflect questioning from defense counsel about the theory of the missing clutch or dispense with his testimony altogether? Since a manufacturer's liability for a failure to warn is within the province of a lay juror's scope of understanding and does not require expert testimony, counsel decided to 'fire' the expert.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.