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Once an attorney has determined that s/he will require the assistance of a security expert to help with a particular premises security case, the expert should be selected with care.
CONSULTANTS vs. EXPERTS
First you need to determine whether you need a consulting expert, a testifying expert, or both. A consultant's greatest value may be in evaluating the facts to determine whether litigation is feasible, and if it is, assist in drafting the Complaint and Interrogatories and Requests for Production (for the plaintiff), or to identify possible defenses to a lawsuit (for the defense).
There are many reasons why you may want to retain a different expert to testify. If you do decide to hire one expert as a consultant and another to testify, insure that you insulate them so that the consulting expert's work remains undiscoverable.
FINDING THE EXPERT
Sources for security experts include referrals from other attorneys, professional association member-ship listings, jury verdict reporting services, in-house "expert reference files," and private referral firms.
Frequently one side or the other retains an "ivory tower" expert, and the other side feels compelled to follow suit and find an expert of equal stature and academic credentials. While this may sometimes be a good idea, beware that your "ivory tower" expert may not have the perspective of having had hands-on or real-life experience, something many jurors look for.
Your expert should be currently employed in the security field, or be an independent consultant, so that s/he has credibility and isn't seen as a "professional witness." While the expert doesn't have to have extensive experience with the specific type business or property involved (the basic security principles and assessment protocols are applicable to almost all), s/he should have experience with the "issues" that are specific to your case.
Frequently both plaintiff and defense lawyers move ahead with prosecuting or defending a negligent security case without an appropriate understanding of the matter. For this reason alone, early consultation with a security expert is usually advised. It also allows your expert to view the scene of the crime or incident before too many changes have taken place, or before critical evidence is lost. Of course it is imperative to have your expert retained and on board before discovery is closed.
Make sure what the expert's fee schedule and terms are at the onset. Its usually best to have them in writing so that there is no misunderstanding later. Do your part - pay bills promptly when presented. Nothing will turn your expert "off" on your case faster than not being paid as agreed.
In many cases the expert will need to inspect the location where the incident occurred - and may wish to take photographs. Again, this should be done before changes occur. S/he will usually want to also assess the general character and layout of the neighborhood and property, and, depending on the issues involved, examine lighting, locks, and other security measures. S/he may also wish to observe such things as shrubbery (same time of year) or look for building design factors which may have offered concealment to an assailant, or look for the absence of those factors.
In most cases of third-party crimes, the foreseeability of the crime in question to the property owner/occupier is a critical question. If the crime was not reasonably foreseeable, a duty to warn or protect against it may not have existed. To determine crime foreseeability some states still rely on the "prior similar incidents on the property" standard. However, many states are utilizing some version of the more liberal "totality of the circumstances" standard. In such states the expert can consider both similar and dissimilar crimes, plus other factors such as the nature of the business or property, the experiences of similar neighborhood or industry businesses, crime in the immediate neighbor-hood, etc. Your expert should be thoroughly familiar with these issues and standards.
Any attorney is best served by an honest and objective evaluation of his or her case. In some cases the expert's opinion may not favor the retaining attorney, or the expert may identify major defects or problems. You should insist up front that your expert be frank and honest with you. If there is bad news, you need to know it, and know it early on.
Finally, give your expert adequate time to do his or her work. Remember that s/he usually also has other cases and consulting commitments, and last minute requests or demands may not get the attention your case deserves. Above all, keep you expert informed as to what is happening with the case. You'll both benefit.
* The above material was excerpted, modified or otherwise prepared by the 'Lectric Law Library from a work by Ralph Witherspoon, email: [email protected] The original was found at the Expert Pages
website at www.expertpages.com
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