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Playing With Fire

Playing With Fire

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Published by: Mark on Oct 23, 2012
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Playing with Fire
or years, insurers have beenthe target o bad-aith legal ac-tions and judgments. Teseawards have resulted in signi-cant amounts o damages, including punitivedamages or sums o money reaching into themillions. Insurers have struggled at times withhow to deend themselves against these typeso claims. It’s time or insurers to begin con-sidering a new question: “How do we show weacted in good aith in order to proactively ad-dress the potential or bad-aith claims?” 
What Is Evidence?
In many cases, and in virtually all relitigation cases, the testimony o an expertwitness will be used. Te expert witness isallowed to do something that no other wit-ness can do in the case; they provide opiniontestimony on the meaning o the evidence.In a re-litigation case, the expert witnesscan testiy as to his opinion o the cause o the re. In those cases, this is oen the mostimportant testimony the jury will hear.Te trial judge and/or jury are consideredto be the triers o acts in a case. When they weigh the evidence beore them they will giveconsideration to a number o things including:
Is the witness believable?
Is the witness qualied?
Are the witness’ notes incomplete?
What is the attitude displayed?
Is the witness prepared?
What was the impact o the cross-ex-amination?
What is the volume or lack o volume o evidence?
Is there evidence o a sloppy investigation?
Is there a lack o evidence continuity (i.e., “chain o custody”)?
Is there an issue o the integrity orcontamination o evidence?When weighing the testimony and evi-dence, consideration will be given to the bur-den o proo. In a criminal court matter, theprosecuting attorney is required to prove thatthe deendant is guilty beyond a reasonabledoubt. In a civil matter, the test is to prove thatthe policyholder committed or procured an in-tentional act by the preponderance or greaterweight o the evidence. Some states require thatthe insurer’s evidence be “clear and convinc-ing,” a more stringent standard.Whether it is a civil or criminal case,evidence must be presented to prove whatis reerred to as the Arson riangle: Proo o an incendiary re cause, proo o motiveor some other orm o connecting evidence,and proo o exclusive or ample opportunity.Note that actual proo o motive may not be required, depending upon the juris-diction. In criminal cases, it is never an el-ement o the crime, but may be part o theconnecting evidence linking the deendant
Feature Story
By Glenn GiBson, Joseph p. Toscano, and Guy e. BurneTTe, Jr.
Proper Selection Process Is Critical When Choosing Fire Experts
 As Seen In June 2007 Issue of 
Feature Story
to the crime. In civil cases, most jurisdic-tions require proo o motive. In all civilcases, there must be evidence that inculpatesor connects the subject to the re.In the course o any trial, many dier-ent witnesses rom both sides will oer testi-mony and evidence. Most o those witnessesmust testiy only to rst-hand objective acts,but the rules o evidence allow or an expertwitness to render an educated opinion. In anarson case, there could be a number o ex-pert witnesses, including:
Fire scene origin-and-cause investigator
Forensic accountant
Metallurgist/materials scientist
Fire scientist
Fire protection engineer
Forensic analyst
Electrical, chemical, mechanical, orstructural engineer
Qualifying as an Expert
Beore an expert is allowed to pres-ent testimony and oer opinions aboutthe ultimate issues in a case, the court rstwill require the witness to demonstrate therequisite qualications as an expert in thateld. Te witness must show some specialknowledge or expertise in the eld that anordinary person does not possess. Troughbackground, experience, and training, thewitness must demonstrate that he possessesthe requisite skills to be accepted as an expertby the court. When this is done, the expertmay have to ace challenges to their quali-cations rom both the opposing attorney andthe trial judge.For many years, the rule in the U.S. wasthe so-called Frye est. Tis rule was adopt-ed by virtually every court and remained thestandard or admitting expert testimony ormore than 70 years. Under the Frye est, theexpert was required to show that his meth-ods and conclusions had gained general ac-ceptance in the specic eld o his expertise.So long as the expert employed methods thatwere sanctioned by other experts in the eld,the Frye est could be satised.In 1993, the U.S. Supreme Courtchanged the rule. It adopted the Daubertest, which charged trial judges with theresponsibility o acting as the gatekeeper o evidence in the courtroom to ensure that ex-perts who were testiying were using reliableand scientically sound methodologies. Tecourt suggested a our-part test or judges toemploy in determining whether an expertwas qualied under the Daubert standard.Te test included the ollowing:
Has the theory or technique beentested, using appropriate standards andcontrols?
Is there a known or potential rate o error or the theory or technique?
Has the theory or technique beensubjected to peer review by others in theeld?
Has the theory or technique gainedgeneral acceptance and recognition by others in the eld?In both civil and criminal arson caseswhere the Daubert test is now the law, thishas undamentally changed the way cases arebeing litigated. Now, an expert testiying inan arson trial must ace not only the oppos-ing side o the case, but the judge. An expert’sndings and conclusions today are givenmore stringent scrutiny than ever beore.At trial, the lawyer or district attorney oering the testimony o the expert willrst outline and establish the backgroundo the expert as shown on their curriculum vitae. Tis will demonstrate why the witnessshould be qualied as an expert by virtue o their technical expertise. Te other side willbe given the opportunity to cross-examinethe witness on those qualications, to sug-gest that the witness is not adequately trainedor experienced in the eld. In a Daubert ju-
Picking the Right Expert
T w tg w t t t  t gt f xt, t qt:
1.Whatisthecompleteeducationalbackgroundotheinvestigator?2.Whatistheentireworking-lieexperienceo theinvestigator?3.Whatspecifctechnicalexperiencedotheyhaveinthefeldofreinvestigations?4.Whatproessionallicensesdotheycarry?Have theyeverbeensuspendedorrevoked?5.Whatproessionalcertifcationsdotheyhave?6.Whatknowledgedotheypossessonbuildingconstruction,HVACsystemsandbuildingelectricalsystems?7.Dotheirlicensesorcertifcationsrequirecontinuingeducationcredits?8.Whatseminarshavetheyattendedintheircareers?9.DotheygenerallyrecognizeandollowtherecommendedproceduresasoutlinedbyNFPA921?10.AretheyullyqualifedasafreinvestigatorunderthestandardsoNFPA1033?11.Dotheyollowthescientifcmethodtoreachaconclusiononafrecause?12.Whatassociationsdotheybelongto?13.Havetheyeverpublishedanyarticles?14.Havetheyeverbeenqualifedincourtpreviouslyasafreexpert?Havetheyeverbeenrejectedbyacourtinseekingtobequalifedasanexpertwitness?15.Havetheyeverconductedlivetest-burnstosupporttheirfretheories,andiso,wasthatdatausedinanyanalysisoafreorinanyfremodeling?16.Havetheyeverdoneanylaboratorywork?Whodotheyuseorchemicalanalysisosamples?17.Dotheyhaveanunderstandinghowfresuppressioneortscanimpactthedeterminationothefrecause?18.Howmanyfresceneshavetheyservedastheprimefreinvestigator,andwhatistheirrecordordeterminingfrecausation?19.Howwouldtheinvestigatorhandleasituationwheretheyeltsubrogationmightexistbasedoninitialfndingsatthescene?20.Havetheyevergivenevidenceromreviewingphotographsorlaboratoryexhibits?21.Whatistheirreputationwiththepublicauthorities?Howwouldtheydealwithsituationswheretheywerekeptoutoasceneuntiltheauthoritieshadcompletedtheirinvestigation?22.Doestheinvestigatorworkaloneororacompany?Whoisthecompany?Whatistheirfnancialstability?DotheyhaveErrorsandOmissionsinsurance?Whatarethelimits?Isthepolicystillinorce?Havetheyhadanyclaimsfledagainstthem?23.Whatmethodsdotheyusetoeliminateaccidentalcausesonafreinvestigation?24.Aretheyknowledgeableonstateorlocalfregroundhazards?Aretheyamiliarwithrequirementsrelatingtothehandlingohazardousmaterials?25.Dotheyhavesecuremanagementandcontrolotheirevidenceinstorage?26.Havetheyhadanyormaltrainingininterviewingtechniquesandnote-taking?27.Cantheyprovideatleastthreeproessionalreerences?28.Aretheyknowledgeableotheuseandlimitationsassociatedwithusingfremodelingorfremodels?

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