from transformer incident to court

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Weidmann-ACTI Inc.Second Annual Conference

November 9 –12, 2003 Miami Beach, FL

Weidmann-ACTI Inc.Second Annual Conference

November 9 –12, 2003 Miami Beach, FL

New Diagnostic Concepts for Better Asset Management

Presented by:

H. Carl Manger Joseph R. Reynolds, P.E.

FTI Consulting, Inc.

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

1850 BC Code of Hammurabi

Forensic Process Origins and History

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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.”

Forensic Process Origins and History1850 BC Code of Hammurabi

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Emperor Justinian I developed the first complete codification of Roman Laws called the Code of Justinian (“Corpus Juris Civilis”)

533 AD Roman Laws


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1200 AD English Courts

Court of Commons, Court of King’s 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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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.

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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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 WitnessFrequent use of the term “Expert Witness” appears in written materials.


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1958 1966 1967 1969 1970 1972 1958 1966 1967 1969 1970 1972

Federal Aviation Act forms the Federal

Aviation Administration (FAA)

Federal Aviation Act forms the Federal

Aviation Administration (FAA)

Congress establishes the Department of

Transportation (DOT)

Congress establishes the Department of

Transportation (DOT)

Highway Safety Act & National Traffic and Motor

Vehicle Safety Act

Highway Safety Act & National Traffic and Motor

Vehicle Safety Act

Federal Highway Administration becomes part of

DOT

Federal Highway Administration becomes part of

DOT

National Environmental

Policy Act

National Environmental

Policy Act

Environmental Protection Agency (EPA) Established

Environmental Protection Agency (EPA) Established

Occupational Safety and Health Act creating OSHA

Occupational Safety and Health Act creating OSHA

Highway Safety Act establishes National Highway Traffic Safety

Administration (NHTSA)

Highway Safety Act establishes National Highway Traffic Safety

Administration (NHTSA)

Consumer Product Safety Act establishes forms the Consumer

Product Safety Commission (CPSC)

Consumer Product Safety Act establishes forms the Consumer

Product Safety Commission (CPSC)

Federal Regulations and Administrations 1958 - 1972Federal Regulations and Administrations 1958 - 1972

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1975 The Federal Rules of EvidenceThe 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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1993 The Daubert DecisionIn 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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An Enhanced Root Cause Analysis Acceptable to the Courts

The Forensic Process

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Essential Steps in the Forensic Process:

1. Preparation2. Coordination3. Site Inspection4. Facts Gathering5. Documentation

6. Evidence Collection7. Testing8. Analysis – Root Cause9. Reporting and Presentation10. Litigation - Testimony

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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

• A Deposition• An Administrative Hearing• An Arbitration• During a Court Trial

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

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• Leading questions• Hypothetical questions, and• Questions pertaining to the witness’s

background, preparation, and objectivity.

Oral Examination of the Expert WitnessThe opposing attorney is allowed to ask:

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• Discover the level of the witness’s knowledge, and what will be testified to in court.

• Discredit or impeach the witness.

The Opposing Attorney will Initiate Questioning to:

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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 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.

• A trial is presided over by a Judge.• Attorneys are present to represent

each party involved.

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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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• Presentation by Defense to provide evidence in contrast or to challenge Plaintiff.

• During each side’s presentation, their expert witness will be called to give opinions after all basic facts are presented.

• Closing Arguments.• Deliberations and Verdict.

General Trial Sequence

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• Essential participant in the trial process under the US court’s 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.

The Witness

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• Fact Witness• Expert Witness

Two Types of Witnesses

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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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• Present opinions in a clear and objective manner.

• Avoid technical jargon.• Be prepared to speak to the

knowledge level of the jury.

The Expert Witness in Trial

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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• 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.

Direct Examination

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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 witness’s Achilles’ heel. Continued . . .

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• 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.

Cross-Examination

Continued . . .

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• 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.

Cross-Examination

Continued . . .

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• 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.

Cross-Examination

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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 plain-collared shirt that is neatly pressed with an appropriate tie.

Continued . . .

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• 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.

Attire

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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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• 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.

Body Language

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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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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.

Summary

from transformer incident to court

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