Regulations and Policing of Experts

I recently sent an email to our newsletter subscribers that went as follows:

Many of you have been sending in great information to help other experts. Knowing how we all suffer from information overload, I try to be very discerning about what I pass on and keep it to a minimum, sending only the most important or most helpful information.

The following is one I felt was important enough to distribute. I received this in response to a blog post about courts, state legislatures and professional associations 'policing' experts and their testimony.  I found this disturbing to say the least. Please read it and stay on top of the regulations affecting your region and area of expertise.

Warmest regards,

Meredith

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"Your blog post about the policing of experts is coincidentally timed. We were recently approached (as in – walked into our front office door and demanded loudly) by the Department of Agriculture and Consumer Affairs, and told that we are officially in violation of State Policy” and could be ordered to abandon our practice immediately.

The “investigator” was kind enough to leave a printed copy of the statute, as well as highlighting the relevant portion. It seems that ANY expert who is not professionally licensed by the DPR (lawyer/doctor/CPA/Insurance Agents) is suddenly required to maintain a Private Investigator’s license! This is based on the current Florida statute cited below.

According to the DACA’s interpretation of the statute, this would include firms such as mine, handwriting analysis experts, mechanics, and more. Our firm has been providing E-Discovery, Data Recovery and Computer Forensic Expertise since 1998.

Now, after almost NINE YEARS, and being on constant retainer for several State Attorneys, the Federal Government, and countless Court Appointments, we are told that we could potentially be put out of business. The largest concern is that to obtain a PI license, an individual must “apprentice” for two years first.

Fla. Stat. 493.6101
(http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubM
enu=1&App_mode=Display_Statute&Search_String=493.6101&URL=CH0493/Sec6101.HTM )

(17) "Private investigation" means the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

(a)  Crime or wrongs done or threatened against the United States or any state or territory of the United States, when operating under express written authority of the governmental official responsible for authorizing such investigation.

(b)  The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

(C)  The credibility of witnesses or other persons.

(d)  The whereabouts of missing persons, owners of unclaimed property or escheated property, or heirs to estates.

(e)  The location or recovery of lost or stolen property.

(f)  The causes and origin of, or responsibility for, fires, libels, slanders, losses, accidents, damage, or injuries to real or personal property.

(g) The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor.

Interesting, huh? It would seem that taken broadly enough, this would apply to paralegals and secretarial staff as well. I’d be interested to see how many other experts may fall victim to this.

I would add that in addition to the 2 year apprenticeship (internship),there’s the insurance factor- as soon as you are a licensed PI you can no longer carry standard insurances (this according to our agent) because a PI carries a much higher liability.

[In my opinion] there is also an image factor involved. I know a lot of Law Enforcement and attorneys who despise PI’s because they have long been stereotyped as “gumshoes” and “hired guns”. And as you point out all the time (and we as experts well know) being a hired gun as an expert is suicide in court." - Expert reader

The response to this email was quick and informative. I have compiled some of the responses into a PDF, Regulations and Policing of Experts. Please let us know what's happening in your field and state.

New Resources for Expert Witnesses

Several companies that offer services to expert witnesses have recently made changes in their offerings or started new services and/or free resources. I have not investigated these in detail, but want to let you know what's new out there.

Many experts have told me how isolated they feel, with no one to talk to about situations that only expert consultants to the legal community face. Rominger Legal has launched Expert Forums, a free service where you can trade tips, discuss ideas, and get questions answered. (I would caution you to be careful what you say and remain anonymous if possible - everything you say is discoverable and lives forever on the Internet.)

Two new blogs for and about experts have debuted. The Expert Witness Blog by JurisPro supplements their existing free quarterly email newsletter for expert witnesses, The Pro.
SEAK, Inc., producers of the upcoming 16th Annual National Expert Witness Conference, have also launched a blog for expert witnesses.

Also just recently announced, Expert Pages has a new feature in their Control Panel to give experts ideas on how to expand their listing (apparently only available to those with an existing account). By clicking on "Topics of expertise" experts can view what are the most popular topics among other members in their field(s) of expertise (without listing any personal information of a specific member).

Although not new, there are two free monthly email newsletters (by separate companies) produced for both experts and attorneys that you might not be aware of. Archives of past newsletters can be for each at X-Pro News and BullsEye .

Let me know if these prove to be helpful or if you are aware of other resources for experts or new developments in the expert witness community.

Mailing to Attorneys

Have you sent out your quarterly "Howdy" mailing to your database of clients, prospects, and referral sources? Now is the time - the United States Post Office will be raising rates on May 14. First class will go to $ .41, postcards to $ .26 and Priority Mail $4.60. See other rate changes at http://www.usps.com

Professional Organizations Policing Expert Witnesses

2006 proved to be a pivotal year in the regulation of experts in our legal system. Formerly most professional groups that monitored the activities of expert witnesses were primarily in the medical field. As state legislation regarding tort reform moved forward however, other fields began to step, in engineering, IT, and other areas. In an interesting post on the Med Law Blog, Michael Cassidy poses the question "What is the Impact of Professional Society Expert Witness Standards?"

What standards are in store for your field? How do you feel about them?

Grievances Against Attorneys

Our discussions about experts getting paid for their work and expert witnesses being designated without their permission (or retention) prompted some expert consultants to throw their hands up about the lack of a regulating body that these attorneys could be reported to.

Their may be a glimmer of hope on the horizon for at least some experts. The New York Law Journal , in an article by Mark Hamblett, reports that the 2nd Circuit has formed a committee that "will accept referrals from the court on 'any accusation or evidence of misconduct' that occurs before the court and violates the rules of professional conduct or responsibility.'"

It remains to be seen whether this committee will only evaluate acts against clients or whether experts will be able to plead their case to the presiding judge for him or her to submit to the committee. But it's a start in the right direction.

My hope is that it leads to similar initiatives from the American Bar Association.

Check Your Computer for Problems with Time Change

As you may already know, the Energy Policy Act of 2005 changed the dates for Daylight Savings Time, which will happen this year on March 11 instead of in April. A hat tip to both Balanced Legal Solutions and Paul Wagner for alerting me to the unexpected problems this could cause users of common software programs like Outlook, TimeMatters, etc. as well as Windows Operating Systems.

Since this change extends the beginning of Daylight Saving Time by three weeks and the end by one week, if you rely on calendar features in any of your technology - computer, Blackberry, Palm, Trio, etc., - the features you rely on (such as prompts for appointments) will not be reliable. And, according to Paul, "...all Outlook Events will shift and span two days because events are associated with 24 specific hours rather than with an individual date."

You can find information on how to update some of these programs at http://support.microsoft.com/gp/cp_dst If you have other software that you think may be affected, contact the company ASAP and find out how to fix it.