When I first began my consulting business, I would take notes on whatever paper was handy at the time: pocket notebooks, 8-1/2 x 11 college-ruled books, yellow pads, you-name-it. During the time I worked with the federal government I began the practice of keeping what I called a “schedule book,” which was mostly a to-do list. Over time, it became the hard documentation for countless phone numbers, contacts and random thoughts regarding my projects. When I started up my business I used the “schedule book” to keep track of my progress in my cases.
Then came the day I received a subpoena deuces tecum from the opposing counsel on a case I was working on. Roughly translated, it means: come meet with us. . .and bring along every note you have that has to do with this case. That meant, of course, that I had to hand over a stack of pocket notes, three or four different kinds of regular notebook paper. . .and worst of all, my schedule book. My schedule book, you see, had notes I had written down regarding previous cases. Not good at all.
As it turned out, the case settled before my deposition took place, so no one got to see the schedule book. But that was the day I quit writing notes about cases in the schedule book.
From that day on, the notes would all be on yellow legal pads, which I would number and clamp into a binder along with the case worksheet. Now, when I receive the deuces tecum, I just take the case binder.
Of course, no system is perfect; the one flaw for this one is that sometimes–rarely, but sometimes–not everything I take to the deposition comes back. Technically, it goes from opposing counsel’s office to the court reporter, sometimes back to counsel’s office, then back to the court reporter, and then—maybe weeks later—back to me. In the process, books, photos and documents have gone missing, never to return. In preparation for the day the binder containing the handwritten notes vanishes, I had taken to copying the notes into a computer file. While this helped me to understand the information and clarify the issues, it was also time-consuming. I was faced with a choice: copy every note I had taken, or risk the notes vanishing at some point. In a recent attempt to resolve the problem I created an “issues” page for each case, where I list the salient points. In doing so, I discovered that most cases seem to boil down to just a few issues—lack of training, lack of communication, inappropriate procedures, inadequate instructions for the job, etc.
FLYTs
Then there are the Post-It Notes (registered trademark) flyts. . .”Funny Little Yellow Things” as one lawyer called them. I read depositions very carefully and mark important passages with yellow post-it notes. Typically, I will write on these FLYTs statements like “Critical” “Very Important!!!!” “Check this”, etc. Interestingly, the meaning of the notes change as the deposition progresses—the early FLYTs reveal the location of information central to the issue, while the later FLYTs mark passages that contradict or underscore prior testimony or the testimony of other witnesses. In other words, all FLYTs are not equal in importance, and some have no importance whatsoever except to mark a passage that I have already read.
A well-examined document may have hundreds of FLYTs sticking out from all exposed edges–forcing the opposing counsel to read each and every one. Only rarely have I been asked about the comments found on the FLYTs—because sometimes it’s unreliable. A passage that I marked as “critical” when I began reading the document may turn out to be far less important by the time I finish reading it. Of course, I’m not about to go back and cross through the word “critical” on such a FLYT—who knows when another doc could provide info that would support and thus revive the importance of the original passage. When looking through case documents information emerges slowly. A comment created in the final analysis may be 180 degrees different than a comment created during the initial stages of the investigation.
Every investigation and analysis has its share of dead-ends, but the documentation leading to those dead-ends should be included in the total package, if only to answer the opposing counsel’s question, “have you thought of this?”
I’ve always believed that it’s important to get as much information about the incident site as possible. In the past that involved videos, photographs, and even 3D photos. Lately, I’ve been using panorama photography to convey information about the sites. Combined with the Apple software application QuickTime, the viewer can move the field of view—just as though they were standing at the site. Pretty cool, and it often beats standard photos for transmitting information about the site.
But making a panorama isn’t as easy as snapping pictures on the digital camera while turning in a circle. For one thing, the pivot point must be exactly at the “entrance pupil” or “nodal point” of the camera lens. Otherwise, the software won’t be able to line things up correctly and the panorama will look strange and broken in places. There are a number of gadgets available that one can attach to a tripod (essential equipment!) to ensure the camera rotates around the nodal point. The one I use is a $199 gadget called the “Nodal Ninja.” It showed up at my door in a beat-up cardboard box with VERY few instructions. But it works. And some of its competitors cost a lot more.
Software
Most consultants doing safety work probably have Photoshop CS2. It’s a great tool to examine photos up close and to extract almost-invisible information from a scene. Photoshop CS2 also has a panorama function. It’s just not something I recommend using. Photoshop CS2 doesn’t really mind warping the scene a bit to make things fit, and that’s not always a good thing under all circumstances.
There are quite a few dedicated software packages that take separate shots and “stitch” them together to make a panorama. I’m a registered user of several panoramic software packages, including Smoky City Design’s Panorama Factory, RealViz’s (very expensive) Stitcher 5.0, Hugin, and PTGui 7. Basically, the various stitcher software packs all do the same thing: they analyze the photos, then stitch them together to produce a panorama photo—a long, narrow image that you can import to QuickTime (using appropriate software such as PanoQTVR) or just publish as-is.
Which do I consider the best? Probably PTGui 7. It’s easy to use, has a very simple interface, doesn’t hog your system (as RealViz products seem to do) and is very inexpensive. Last time I looked, PTGui 7 was only $115. Moreover, the response time on customer service is remarkably fast—in my case about 10 minutes.
If you’re a safety professional and are considering panorama, you’ll find quite a few resources over a wide range of prices. All produce workable panoramas; but you should understand that a high price doesn’t necessarily correlate with high quality.
As someone who has explained my opinions to lots of juries, I know that juries are probably the most important part of any case. A few years ago I was one of the designated expert witnesses (for the Plaintiff) in a case where the evidence was stacked so high that everyone—even the bailiff and probably the judge thought the Plaintiff would win. Day after day the evidence piled up, and the Defense seemed unable to respond or refute it. For two weeks it looked like the perfect storm for the Defendant, a chemical company that, according to testimony required some of its employees to sniff vials containing a toxic chemical.
You read that right.
Toward the end of the trial, the defense lawyer had a glazed look on his face. Then the jury went into their little room to decide. As I said, everyone thought the Plaintiff would win.
But it didn’t happen.
It didn’t happen because two jurors thought differently, and managed to convince the rest of the jury that the defendant should prevail. And apparently the reasons didn’t have anything to do with evidence or how each side presented the case.
It’s no wonder then that attorneys pay serious attention to the local culture forming the background of the jury pool. Criminal defense lawyers sometimes visit a community weeks or months before the trial, shopping at the stores and barbershops, even getting to know some locals by name. Others might pay a jury consultant to analyze the area—evaluating such things as socio-economics, education, ethnicity , culture regions, politics or even the predominant religion.
As a former sociologist, I believe it’s useful to understand a community. But I’m not sure that an in-depth cultural analysis is always worth the effort and expense. In the chemical exposure case, I was told that the juror convinced the others because he thought if the company lost the case, it would close and put everyone out of work. Attitudes like that usually don’t show up on a map.
In this world there are consultants who tell their clients (often lawyers) what the cultural territory is like. Politically, is the jury pool red or blue? Wealthy, mid-level or poor? Do they owe a lot of money? Do they shop at Target, K-Mart, or. . .well, whatever place the really wealthy shop for Target-quality stuff? I’ve had the opportunity to read some of the reports these guys churn out and some of it is impressive. But I’ve also noticed that there is a wide variation in the number of references and end-notes. I recall one of them obviously read New York Times columnist David Brooks, and probably even read his book, Bobos in Paradise, in which he compared local versions of red vs blue America.
Apparently a lot of people think he’s a very smart guy and that his book approaches academic quality for the insights it offers. His books and columns are fun to read and one comes away thinking that they’ve learned a deep truth about American culture. Except. . .
Some of that stuff was, well, made up.
It seems Philadelphia reporter Sasha Issenberg did a little cookie-jar level fact checking on some of the claims Brooks made and found that the stuff was wrong. Certainly nothing anyone would want to rely on for, say, jury selection. When she confronted Brooks about it over the phone, he hemmed, hawed and parsed—even calling Issenberg’s skills as a reporter into question and darkly suggesting (it seemed to me anyway) that confronting David Brooks was not the way to get ahead in the news business. To judge for yourself, read the article here.
While Brooks is a good writer and probably a fun person to hang around with, his work may not be the thing you’d want to rely on either as a consultant studying cultural patterns nor as a lawyer interested in jury selection.
Suppose you’re a plaintiff lawyer with an injured client. You suspect the defendant, a large construction company, has some very bad work practices that put employees of subcontractors at risk. You only have so much time and funds available. After the eyewitnesses—and of course, the safety guy—who should you depose?
Some of of my clients on the Plaintiff’s side like to go top down–deposing the CEO or the President of the company first, then work their way down to the managers. Others prefer to work their way up–foreman to supervisory personnel.
At some point–usually with the mid-level managers they will encounter something like dense fog obscuring all further discovery: the malady known as CCA: Command Chain Amnesia.
While you or I might remember inconsequential meetings with people that took place years ago—and may even remember what was said, there are highly-paid people working as managers who won’t remember talking with anyone. They will be unable to recall meetings, conferences and even what they took in college. One president for a VERY large Texas construction company claimed on the record that he didn’t really know anything about electricity (the case involved an electrocution.) When it was pointed out that he also had an engineering degree, he said he couldn’t recall taking any courses that had to do with “electricity.”
Amnesia isn’t limited to the corporate world. A CIA analyst by the name of Tyler Drumheller is writing a book that will no doubt shine a bright light on command chain amnesia in the run-up to the Iraq conflict. It seems he told both his boss, a man named John E. McLaughlin as well as the Director of the CIA himself that the intelligence regarding weapons of mass destruction was seriously flawed–well before the information was used in speeches by both the President and by the Secretary of State. When asked to comment, neither McLaughlin nor Tenet could remember ever talking with Drumheller.
So, I suppose it’s a waste of time to be angry with the mid-level managers when they fail to remember important details. It seems to affect the big guys as well. There are, of course, few things that can be done to make someone remember something, especially when doing so makes them look foolish. For the person asking the questions, this can pose a real problem.
I did hear once about a case in which a feisty trial lawyer (is there any other kind?)–after hearing a deponent repeat “I don’t remember” for about four hours—finally demanded to see the man’s medical and personnel records. Seems he wanted to find out if they guy was taking drugs that would cause amnesia—or in the alternative, why a company would even hire someone who couldn’t remember anything.
Thankfully, command chain amnesia doesn’t usually cause problems for the those who have it. Some, like George Tenet, go on to win the Presidential Medal of Freedom.
As a sometimes-litigation consultant, I have come to appreciate the work opposing counsels put into depositions and trial. If there is a shred of positive evidence to support their side of the case, they will polish it until is shines like a 5000-watt beacon. If there is a pinhole-sized irregularity in your conclusions they will turn it into the fatal flaw. That’s their job. What’s more, that’s good for you. And good for the case–because it helps the truth become real. The jury listens to both sides, decides whose side has the worst case, and votes for the other side. That is exactly the way it should be and that’s the way it is.
Except, apparently when the government is involved. The World Trade Centers fell in a cloud of dust—a toxic brew of asbestos, mercury (probably americium-241), PCBs and heaven-knows-what-else. Thousands of New Yorkers were exposed. And yet in the five year span since that event, the EPA has never bothered to determine the quantitative concentration of the cloud, i.e. in terms of milligrams per cubic meter–even though such metrics form the standard for many regulatory agencies such as OSHA, NIOSH and EPA. And even though people possibly have begun to die from that very exposure.
Instead, the EPA apparently grabbed a professorload of “exposure experts” who never seemed to answer phone calls OR be able to divide mass by volume (though this is something that guys in the litigation field do all the time.) Thus, no concentration value, no quantified exposure. No quantified exposure, no evidence. Reporters assigned to the hearings aren’t really good at math and science, but that’s okay. They get the big picture. And the big picture is, so it happens, painted by the EPA–who assures us there is some information that we really don’t actually need.
But that’s another post for another time.
But now, I’m seeing the same thing with Divine Strake the big ammonium nitrate and fuel oil explosion set for sometime in June at Area 16 at the Nevada Nuclear Test Site. And the feds–albeit another branch–are doing it again.
Here are the facts: Seven hundred tons of ammonium nitrate/fuel oil will be detonated at Area 16 of the Nevada Test Site. The soil at Area 16 probably is loaded with radioactive elements such as cesium-137, strontium-90, plutonium and maybe even americium-241. How do I know this? Because the place was contaminated with above-ground nuclear tests such as those code-named Easy (1952), Turk (1955), Coulomb B(1957), Kepler and Smoky (1957)–and maybe others. The contamination countours were mapped and published in a government document called DASA-1251. You can see two of the maps here and here.
These tests were known to have produced long-lived radioactive elements. Thus, as any high school student would surmise, if these tests contaminated what is now Area 16, and if these same tests produced long-lived hot isotopes that are active for 50 years, then Area 16 is still hot.
The federal government claims that there are NO radioactive isotopes at the site because no atmospheric tests were detonated there.
What they are not saying is that Area 16 is a mere eight miles from the ground zeroes of many of the 1957 nuclear tests. Reporters were kept seven miles from ground zero so as to avoid contamination and exposure.
Eight miles is not a terribly great distance, considering that most of the aboveground tests occurring nearby produced debris clouds that reached 30,000 feet into the sky.
In response to inquiries about safety, I have been informed that the federal response has been, in effect: “We monitored both sides of a road in Area 16 and we found nothing exceeding background radiation.”
Anyone presenting that kind of lame excuse for evidence in a real civil courtroom would be devoured by opposing counsel. I can imagine the questions:
Actually the last one was an easy shot: the EPA has a monitoring network, but the last time I looked (2003) the sites only checked for gross beta and gamma and not alpha—and they mail the samples to the EPA Lab in Montgomery, Alabama—there were only 50 sites in the U.S.—and most were staffed by volunteers.
When I asked the EPA representative for an opportunity to interview one of the volunteers in the Iowa lab, she refused. So much for quality control.
This eventually led me to suggest to the Department of Homeland Security that a terrorist organization could detonate a 1 kg block of the alpha-emitter am-241 at 20,000 ft altitude over western Wyoming—contaminate thousands of square miles of U.S. soil—and completely escape detection by the EPA system. Another story, another post, another time.
Bottom line I: If the government “experts” played by the rules of even the most rural southern jurist, then the truth might surface a tad faster.
Bottom line II: I have nothing against the Defense Threat Nuclear Agency testing bunker busters at various sites around the United States. That sort of thing comes with the job classification; and they’re doing it, ultimately, to protect us, the American people. I have no quarrel with the good men and women of the Defense Threat Nuclear Agency.
What I do find offensive is if they try to avoid or suppress evidence that would shed light on the full known consequences of their actions—i.e. qualitative assurances where quantitative values are required. Or hand-waving (”Bechtel said it was fine.”) Specious arguments (”no above ground testing at Area 16–so it’s safe.”) No passing the buck to some subcontractor (protected by the Feres doctrine.) Stuff that would bring on scathing venom from even the most inexperienced trial lawyer if it were presented by his opposing counsel’s expert.
In other words, Divine Strake is the sort of thing that could impact real people in the real world—therefore it should be held to real world standards—and not some reporter who got his job on the environment beat because no one else wanted it.
In civil litigation the experts have to play fair and tell the truth, because if they don’t they will surely be called on it—and their client will have a greater chance of losing.
The very same criteria should apply to the feds and their faux nukes—even those–like this one–that are turbocharged with a barnload of fertilizer and fuel oil.
Several links added today, including Microsoft Academic Search. According to Microsoft, the site will allow one to search through peer-reviewed science journals for the following subjects: “computer-related, physics, electrical engineering and related subject areas.” I tried it and found an article about the energy consumption of the Apple Macintosh.
Some time ago one of my clients asked me to review a report by opposing counsel’s expert.
The report began with a discussion of how the accident (made the basis of the lawsuit) was caused. The rest of the report appeared to be an attempt to support that first sentence. There were no references. Worse, some of the body of the report appeared to include material that had appeared elsewhere and under different circumstances.
I was a little surprised. The document wasn’t at all representative of the author, whom I knew was a smart guy and someone experienced in litigation support. Perhaps his client asked him to make the report as brief as possible. Maybe the report was just an example of his style.
We all have our own style of writing, of course. As an author of a history book I learned early to document everything. Once I received a phone call from a copyeditor who worked for Macmillan (my publisher at the time). She had read my account of the Cuban Missile Crisis and noted that I included the name of a small town near the coast of Cuba. She couldn’t find it on the map. I checked with a different Atlas. Sure enough, it was there. Twenty minutes later she called complaining that I had misspelled the word “Wurlitzer.” The “u” needed an umlaut.
So, maybe I’m overly careful about referencing my reports. Again, perhaps from my writing experience, I try to open up with a simple statement that includes a description of events based on what is known. From there, I try to approach the event from the perspective of the witnesses. In writing terms, this is referred to as a third person limited point of view. After viewing the event from these different perspectives, a certain consensus began to emerge regarding how the accident event took place—the most likely scenario. Some safety experts refer to this as the model.
Once the scenario/model has been established, I then usually discuss the responsibilities of each of the parties involved, and including other players (if any.) Lastly, I discuss the event and responsibilities in view of violations of either established safety practices as reflected in the OSHA standards, Building Codes, local ordnances, etc.
Finally I write up the summary and conclusions. If I’m successful, the report will show a progression from the event itself (or shortly before the event) on through to the eyewitness accounts (if any), on to responsibilities of all the parties, and finally to my conclusion discussing what I think happened and why.
All written at the eighth grade reading level.
Don’t laugh: The Wall Street Journal is said to be written at the eighth grade level, and the great Ernest Hemingway generally wrote at the fifth grade reading level.
A low reading level score (lower is better) means that most everyone can understand it—my client, members of the jury and, of course, me. There is nothing worse for an expert to be handed his or her own report while on the witness stand—and then being asked to translate it into Plain English.
Better it’s already in Plain English.
I was cleaning out the office last week and came upon some binders from a case I had worked on in the late 1990s. They were depositions taken of a expert witness involving a simple slip-and-fall case. And no, I wasn’t that expert. I noticed one binder in particular—attached to each page was a yellow post-it note and on most of the notes were drawn stars or the word “yikes”. Stuff like that. I nodded to myself: this was one of the good ones.
Most people have never heard of the word “deposition,” and those that have equate it with something being deposited—like nuclear fallout or bird droppings. Stuff that is toxic in some vague ill-defined and barely-understood way. Depositions in the legal world refers to experts with (1) experience and (2) opinions. . . answering questions posed by attorneys skilled at (1) logic and (2) rhetoric.
Unlike most of the so-called “reality shows”, depositions are always fun to watch–and read. On one side, you have the scientific expert. Occasionally this person is an academic type who is accustomed to deference from students and non-Phds and one who thinks “robust discussion” means a brief skirmish before a consensus is reached–a concensus that precisely matches the expert’s original opinion.
On the other side you’ll find the lawyer—a guy who has seen it all (at least twice), likes his steak well-done, knows what he knows. . .and has a crisp ability to use logic, rhetoric and countless other reasoned arguments to point out the flaws in the expert’s opinion. Not just flaws, but *fatal* flaws–flaws that make the expert’s opinion not only *worthless* but *less* than worthless. Dangerous, maybe.
This combination, of course, includes all the makings for great theater. Two talented people argueing over what happened and most importantly, *why* it happened. If the expert wins, then the opposing counselis assumed (for the moment) to be riding a bad case down an arc that will end—well, badly. If the lawyer wins, the expert comes across as a fool, which, of course, is not a good thing for street cred, academ cred or, in fact, any cred whatsoever.
Throw in a couple of hundred thousand (okay, maybe—like in a recent case–4.4 million—which my client won) and the stakes are high indeed.
Even when immersed in these interminable struggles (a depo is often six hours long), I always gauge my answers by how they may be perceived by an audience–the jury. And of course, my tormentor—the opposing counsel–has exactly the same thing in mind. More specifically, opposing counsel wants to reveal to the jury how this expert isn’t really an expert, but a hired gun, a fool and a charlatain, the theories he expounds are half-baked at best, totally bogus at worse, and overall, simply should be dismissed as a mix of claptrap, noise and static.
The expert wants the audience to believe that his opinions are expressions of pure reason, and that his analysis of events more or less mirrors reality.
The stakes are high. The expert believes in his model (it’s usually called a “model”) and the lawyer often believes the expert is a hack that happens to be totally wrong in his/her conclusions. Or, the lawyer believes the expert is on to something—which raises the stakes even higher.
Reading a deposition where the expert had welded his reputation to his opinion (most of us, do) and where his interrogator was intimately familiar with the arcane rules of logic (most good lawyers are) is great fun. Sometimes the lawyer scores huge serious points, such as through the use of hypotheticals. Sometimes the expert, under withering fire, advances a salient into the opposing argument in such a way that the only sensible response is to change the subject or suggest everyone break for lunch.
On the surface, it’s two people argueing with each other. But in the greater sense, it’s far more—it’s a microcosm of how we understand and interpret the events of our world. Each event we witness is associated wth an internal (sometimes flawed) expert who is tasked with the responsibility of explaining the world to us in terms we can understand. However, we also have an arbiter, a verifier, *our own internal lawyer*, if you will, whose job it is—is to reduce the event into terms we can understand. Real World Sensible.
Thus, we evaluate our own experiences—then decide what they mean in the overall scheme of things.
Getting back to the old deposition from the 1990’s, I’m looking forward to reading it again. Given all the yellow post-it notes, I’m sure I’ll find confict, mixups, and who-knows-what in those pages. You read enough of these things, like I have, and the voices become real–Question vs Answer.
A good deposition can frame the conflict in a very precise way, getting right down to the essence of things. Which is why I believe somewhere, some television producer is planning his perfect reality television show: Deposition: The Ultimate Reality Show.
I know I’d watch it.
To someone not used to this sort of thing, depositions are not easy to read. The question-and-answer format is similar to a script. But after awhile the words take on the character of a true discussion between two people–the lawyer and the person being deposed. The trick is to figure out how to make sense of it.
I follow the advice of the first history professor I ever had—a guy named Walter H. Ryle IV. He was a young guy back then, and the son of the college president, Walter Ryle III. Unfortunately the only thing I took from his class was his comment that “a book that hasn’t been marked up, dog-eared, pages underlined and high-lighted—is a book that hasn’t been read.”
So, before I read a deposition I round up a new pack of highlighters, Post-It notes and a couple of red pens. Then, I mark up everything. Literally. The deposition can probably gain several ounces during my perusal of it. And when I’m finished, it looks like a book with yellow feathers. Or something.
This is annoying to the opposing counsel. To him or her, it’s obvious that each of the hundreds of notes (also called FLYTs—funny little yellow things) might involve information important to my conclusions. Or not. Regardless, there’s never time to read them all (and who would want to?). So, the poor opposing counsel usually asks the court reporter to copy the depos *in color* and at a size that will include the Post It notes.
In reading depositions, I’ve discovered it takes me about 2-1/2 hours per hundred pages. That’s an average that hasn’t changed over ten years. When a client asks me for a guestimate of the time involved, I usually respond by asking them how much paper they intend to send me.
I’ve seen experts bring in depos they have claimed to have read—but there’s no notes attached. No marks of any kind. Pristine. I don’t know how they do it. But if were an attorney (and I’m not), I’d probably ask them, “is *this* document the one you read in preparation for this deposition?”
More on depositions in a later post.
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jour·nal n. A personal record of occurrences, experiences, and reflections kept on a regular basis; a diary.
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95. If it's not physics, it's magic.
--G. Noss
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