Presented by:

H. Carl Manger
Joseph R. Reynolds, P.E.
FTI Consulting, Inc.

Weidmann-ACTI Inc.
Second Annual Conference
November 9 12, 2003

Miami Beach, FL

New Diagnostic Concepts

for Better Asset Management
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Electric Power Systems are Expected to be Highly Reliable and Safe

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Electric Power Systems are Deeply Woven

into the Fabric of Populated Areas

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 2003

 2003

Reliability vs. Liability

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U.S. Supreme Court

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The Formula for Litigation

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Injuries + Damages + Outage Impact

= Litigation Factor:
I + D + O = fL

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Enter:
The Forensic Process

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Forensic Process Origins and History

1850 BC Code of Hammurabi
The earliest known complete legal
code, discovered by archaeologists in
1902, which contained a collection of
laws and edicts from the Babylonian
king, Hammurabi.

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Forensic Process Origins and History

1850 BC Code of Hammurabi
Construction Defect
229. If a builder erect a house for a
man and do not make its construction
firm, and the house which he built
collapse and cause the death of the
owner of the house, that builder shall
be put to death.
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Forensic Process Origins and History

533 AD

Roman Laws

Emperor Justinian I developed the first

complete codification of Roman Laws
called the Code of Justinian (Corpus Juris
Civilis)

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Forensic Process Origins and History

1200 AD

English Courts

Court of Commons, Court of Kings Bench

and Court of Exchequer established.

1215 AD

Magna Carta

Magna Carta was written to be accepted as

the Common Law by the English
government.
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Forensic Process Origins and History

1675 to 1776 AD Colonial Courts
Colonial Courts in America are established as
Extensions of the Common Law of England.
John Marshall
Chief of U.S.
Supreme Court
1801-1835

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1800 to 1875 AD
Special Knowledge Witness
Those having special knowledge are called to
stand in court and give testimony on behalf
of a party involved in trial.

Forensic Process Origins and History

1950 AD

American Academy of
Forensic Science

The American Academy of Forensic Science

(AAFS) was formed in Chicago, Illinois. The
group also began publication of the Journal of
Forensic Science (JFS).
1950 AD Expert Witness
Frequent use of the term Expert Witness
appears in written materials.
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Federal
1972
FederalRegulations
Regulationsand
andAdministrations
Administrations1958
1958--1972
Act
Federal
FederalAviation
Aviation Act
forms
formsthe
theFederal
Federal
Aviation
Aviation
Administration
Administration(FAA)
(FAA)
Congress
Congressestablishes
establishesthe
the
Department
of
Department of
Transportation
Transportation(DOT)
(DOT)

1958
1958

1966
1966

Highway Safety Act establishes

Highway Safety Act establishes
National Highway Traffic Safety
National Highway Traffic Safety
Administration (NHTSA)
Administration (NHTSA)

1967
1967

1969
1969

Federal
FederalHighway
Highway
Administration
Administration
becomes
becomespart
partofof
DOT
DOT
Highway
HighwaySafety
SafetyAct
Act&&
National
NationalTraffic
Trafficand
andMotor
Motor
Vehicle
Safety
Act
Vehicle Safety Act

2003

Product
Consumer
Consumer Product
Safety
SafetyAct
Actestablishes
establishes
forms
the
Consumer
forms the Consumer
Product
ProductSafety
Safety
Commission
(CPSC)
Commission (CPSC)

National
National
Environmental
Environmental
Policy
PolicyAct
Act

1970
1970

1972
1972
Environmental
Environmental
Protection
ProtectionAgency
Agency
(EPA)
Established
(EPA) Established
Occupational
Occupational
Safety and Health
Safety and Health
Act creating OSHA
Act creating OSHA

Forensic Process Origins and History

1975 The Federal Rules of Evidence
The Federal Rules of Evidence, originally promulgated
by the U.S. Supreme Court, were enacted as a
congressional statute. They are based on the
relevancy standard in which scientific evidence that
is deemed more prejudicial than probative may not be
admitted.

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Forensic Process Origins and History

1993 The Daubert Decision
In Daubert et al. v. Merrell Dow, a U.S. federal court
replaced the Frye standard for admission of scientific
evidence and conferred on the judge a gatekeeping
role.

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The Forensic Process

An Enhanced Root Cause Analysis

Acceptable to the Courts

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Essential Steps in the Forensic Process:

1.
2.
3.
4.
5.

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Preparation
Coordination
Site Inspection
Facts Gathering
Documentation

6. Evidence Collection
7. Testing
8. Analysis Root Cause
9. Reporting and Presentation
10. Litigation - Testimony

Electric Utility technical

professionals should anticipate
that sooner or later their
presence could be required to
testify as a witness at a
deposition, an administrative
hearing, arbitration, or at trial
in a court of law.

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Witness Testimony Proceedings

There are four types of proceedings in which
witness testimony is usually required:

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A Deposition
An Administrative Hearing
An Arbitration
During a Court Trial

Oral Examination of the Expert Witness

The opposing attorney is allowed to ask:
Leading questions
Hypothetical questions, and
Questions pertaining to the witnesss
background, preparation, and objectivity.

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The Opposing Attorney will Initiate

Questioning to:
Discover the level of the
witnesss knowledge, and
what will be testified to in
court.
Discredit or impeach the
witness.
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Depositions lead to the greatest

of all theaters, the courtroom.

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Court Trial
A proceeding before a
court under federal or
state law, presided
over by a Judge which
may or may not
involve a jury.

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Anatomy of the Trial

A trial is presided over by a Judge.
Attorneys are present to represent
each party involved.
A Court reporter, Clerk of the Court, and Bailiff are
present.
The Judge is the Gatekeeper for all evidence and
the final authority on matters of trial procedure and
the law.
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General Trial Sequence

Jury Selection, if not a bench trial.
Opening statements by Plaintiff then
the Defense.
Presentation of case by Plaintiff to
provide a foundation of facts and
evidence to support their claims.
Continued . . .

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General Trial Sequence

Presentation by Defense to provide
evidence in contrast or to challenge
Plaintiff.
During each sides presentation, their expert
witness will be called to give opinions after
all basic facts are presented.
Closing Arguments.
Deliberations and Verdict.
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The Witness
Essential participant in the trial
process under the US courts
procedural laws.
Called upon to appear in trial
to present the facts and to
identify evidence in a matter.
Retained to clarify and explain
complex issues and to express
opinions.
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Two Types of Witnesses

Fact Witness
Expert Witness

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Witness Rights
Federal Rules of Civil Procedure set
forth the rights of a witness.
Embarrassing or harassing a witness
is a violation of the Federal Rules.

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The Expert Witness

in Trial
Present opinions in a clear and
objective manner.
Avoid technical jargon.
Be prepared to speak to the
knowledge level of the jury.
Continued . . .

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The Expert Witness

in Trial
Respond to questions from counsel
or the court without adding
unnecessary comments.
Be authoritative and confident in
your opinions and testimony.
Remain calm, cool, and collected.

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Voire Dire
Preliminary examination of a proposed
expert witness to answer questions
regarding their competence to testify in
specific areas.
As the gatekeeper of evidence, the Judge
will rule as to the areas of testimony
allowed for each expert witness.

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Daubert Ruling
The U.S. Supreme Court opinion,
known as the Daubert ruling,
includes all analysis techniques and
evidence relied upon by the expert
witness.
The Judge can apply this rule to
prevent junk science from
entering the courtroom.
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The Trial Process

Pre-Trial
Preparation
Direct Examination
Cross-Examination

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Pre-Trial Preparation
Prepare well in advance of the
trial date.
Provide client attorney with
advice on technical aspects.
Remember, success in trial is
based on 80% preparation and
20% presentation.

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Direct Examination
A testimony plan and outline should be
developed and rehearsed.
When taking the oath, hold your right
hand up high at eye level with fingers
straight.
Look directly at the Officer of the Court
administering the oath.
Continued . . .

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Direct Examination
If a trial attorney calls out Objection,
hold your answer until the court rules
Sustained or Overruled.
If you make a mistake or slight
contradiction, admit it, and correct it.

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Cross-Examination
The most challenging part of trial testimony
for the expert witness.
Be matter-of-fact in your answers.
Always be polite and responsive to opposing
counsel.
Do not be evasive as it will appear as a
weakness in credibility the expert witnesss
Achilles heel.
Continued . . .

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Cross-Examination

Answer only the question that was asked.

Do not volunteer any additional information.
Get used to silence.
Listen very carefully to the entire question
and take your time responding.

Continued . . .

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Cross-Examination
Beware of hypothetical questions posed by the
opposing attorney.
Speak up in a clear and confident voice.
When addressing the court, use Your Honor
or Judge.
When addressing attorneys, use their surnames.
Continued . . .

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Cross-Examination
If a recess is called, do not carry on a
conversation with other witnesses, attorneys
or other parties.
Avoid contact or conversation with jurors at
all times.

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Expert Witness Trial Guidelines

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Attire
Body Language
Eye Contact
Demeanor
Common Courtesy

Attire
It is important for the witness to
project a good appearance.
For men, a conservative dark blue
or gray suit and black shoes are
preferred. Wear a white plaincollared shirt that is neatly pressed
with an appropriate tie.
Continued . . .

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Attire
For women, a two-piece conservative
suit or skirt in a dark color are
preferred. Wear a neatly pressed
blouse, dark shoes, and modest
accessories.
Always confer with your client
attorney as to appropriate dress for the
court location involved.
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Body Language
Do not underestimate the
importance of body language.
Conscious and sub-conscious
signals include facial expressions,
posture, eye contact, and hand
movements.
General guidelines include not
placing hands over mouth, in
pockets, or behind the back.
Continued . . .
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Body Language
Do not tap fingers, wring hands,
play with jewelry, or a pencil or
pointer.
An important fact may be
emphasized by using hand
motions.
Be natural not stiff.
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Eye Contact
Look the jury and/or Judge in the
eye, not just the attorney asking
the questions.
Treat testimony as a conversation
with three individuals.
Vary eye contact.
When giving opinions always look
at the jury and/or Judge.
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Demeanor
Be relaxed.
Speak in a conversational manner.
Do not talk down to the jury or
Judge.
Be confident, but not cocky.

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Common Courtesy
Use good manners.
Be sensitive to local issues and the
people in the community.
If using local names or locations,
learn the correct pronunciations.

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Summary
As in the Scout Motto: Be Prepared.
Advance knowledge of the litigation process
in a trial can eliminate the mystery and fear.
With a little foresight and a lot of
preparation, you can turn your time as the
expert witness in court on the hot seat into
a painless, and even an enjoyable experience.

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If you are facing the hot seat,

Please Contact:
Carl.Manger@FTIConsulting.com
Joe.Reynolds@FTIConsulting.com

www.FTIConsulting.com

2003