Use of Experts to Prove Foreseeability and Preventability

Although it may be possible to prove general foreseeability without expert witnesses it is not prudent to attempt to do so. Even if relevant factors raise an inference that your clients victimization was likely to occur under the circumstances the case will be stronger if the inference is amplified through the testimony of an expert. In some cases more than one expert should be used on this issue. The creativity of counsel in identifying helpful experts with case specific subspecialties often separates highly successful cases from mundane ones. The lawyer’s marketplace is overcrowded with security experts. Thus, counsel has almost limitless choices. However with this availability of resources comes more difficulty in making a wise choice so caution is needed. Because much is at stake in the commitment to an expert lawyers should carefully review the witnesses credentials, get references from other lawyers who have employed the witness in the past and interview the expert carefully before hiring. There are numerous disciplines from which experts may be selected to prove foreseeability.

The simplistic hiring of a single all purpose liability expert is adequate in some cases but is not enough in others. Where there are numerous factual issues to be resolved more than one expert is frequently needed. Within the security field different experts bring their own contribution to each case. The expertise of a particular witness may be suitable for one case and not another. In each case counsel should select an expert who by education, training and experience is qualified to evaluate and judge the defendants conduct. If there are both foreseeability and preventability issues which are disputed a different expert on each subject may be called for. Even within the foreseeability issue there may be a need for two or more experts. For example one witness may be used to analyze and testify about crime statistics while another is retained to focus on how property design, layout, and neighborhood features contribute to foreseeability. Likewise on preventability questions one witness may testify to availability of practical security measures which could have been undertaken to prevent the loss while another discusses deterrence or how such techniques would likely have affected the specific criminal actor who harmed the plaintiff. Counsel should analyze the issues in each case and engage in frank discussions with potential expert witnesses to determine the specialties needed for each case.

This most general category of expert witnesses in many cases often represents an expertise born of the cause of action. Prior to the judicial creation of this theory of recovery there were no so called security experts acting as litigation consultants? Indeed there have long been persons who were expert at identifying security problems and needs but unlike other professional groups such as engineers, doctors, and economists who have primary professional recognition outside litigation consulting many security experts exist because of litigation and limit their professional activities to litigation related matters. Such consultants are often prepared to address any and all of the security questions raised by any case and every case. Many of these consultants do have credible and impressive credentials. However counsel should be careful to avoid the simplistic temptation to simply hire a security expert. The American Society for Industrial Security (ASIS) is perhaps the best known and most widely respected security trade organization. Scholarship is emphasized along with professionalization of the industry. This organization has created a certification program for security managers. To become a certified protection professional (CPP) managers are required to demonstrate adequate experience and pass an examination. There is a reading list and workshops are held around the country to prepare applicants for the testing which has a high failure rate. In order to recertify the managers must attended/instruct seminar and college course programs. Other lesser known organizations also have certifications or designations such as that of the American Security Educators and Trainers (ASET). Smaller industry specific organizations such as hospitals, colleges, shopping centers and others may have their own peer reviewed honorariums or certifications. Of course these credentials are only a part of what counsel needs to consider when hiring experts. The background of all security experts should be examined to determine whether the prospective witness is suited for the issues of each case.

Courts generally look favorably upon the credentials of an expert witness with a strong traditional academic background and affiliation when ruling upon whether the witness is qualified to give opinion testimony. Security science is a rather recent academic discipline. Most often it exists not independently but as part of another program in the school of business administration. Some colleges have developed curriculum in real estate management, industrial management, hospitality management, insurance and other specific programs. Security courses can be found in these programs and with them come faculty that can be qualified to testify in many cases. As time goes by graduates of such programs who have studied security science and techniques as part of a broader academic program of study may be considered as litigation consultants and testifying witnesses in addition to faculty. Scholarship is always a desirable credential when employing an expert.

In many negligent security cases the defendants are real estate manager professionals. Even if they aren’t every enterprise which occupies real estate carries with it a responsibility to competently manage the property so as to provide reasonable protection to invitees and other persons lawfully on the property. Providing reasonable protection from foreseeable harms includes security. Where outside managers or in-house operators fail to provide any or adequate security to protect property occupants and visitors their conduct may be judged by the standards of care which define minimum competence for management and operation of real property. In other words many if not most cases present the question of whether there was in effect malpractice on the part of property management. Although not every case can be analyzed this way every venue is a place and someone had to have the duty to operate it including providing for its foreseeable security needs. Where there has been a failure to act carefully the witnesses should include real estate management experts. In this service business a handful of international/national companies predominate. It may be difficult to find among them witnesses willing to testify against their colleagues. The code of silence invented by the medical profession has found acceptance among large real estate management companies. The relatively small number of leading companies which dominate the industry accounts for this phenomenon. In one city or another across the globe these real estate management companies have cooperative relationships with one another which together with the natural affinity corporate officials to identify with the defense make them reluctant to testify against sister companies. The experts needed to pierce this veil of comradeship should be highly experienced if they are to succeed in persuading in the courtroom. The most specific credential for such experts is the Certified Property Manager (CPM) designation conferred by the Institute for Real Estate Management (IREM). To have these designation real estate managers must complete a comprehensive training course in property administration which includes a chapter or section covering security issues and subjects. An expert witness real estate manager who holds this credential and has substantial operation and management experience can effectively criticize or defend the actions of real estate managers in negligent security cases.

Where the plaintiff was injured in a retail environment or hospitality venue such as a hotel, lounge, theme park or recreational sports facility a security expert with experience in the specific industry may be better than a witness with a more general expertise. Specific security risks exist for each environment which in a particular case may be different from the risks generally for a public accommodation. These experts with hands on experience often have background which adds to their credibility when opining that some risk was foreseeable or that some security measure probably would have been effective in preventing the harm from occurring. Having such an expert enables counsel to deal with any industry specific issue that may arise.

This discipline deals with the study of patterns, causation and control of crime. As expert witnesses criminologists are most often used to present crime statistics and trends. National and state data are collected by various agencies. Understanding reporting methods can be important in interpreting the data. In large organizations with substantial infrastructure such as the New York City subway system or a national retailer such as Sears or Wal-Mart reported statistics as well as internal statistics representing experience of the organization a criminologist can be helpful in relating changes in crime statistics to a particular security measure or the lack thereof. Understanding criminal patterns today includes understanding how technology impacts the opportunity for crime and more often the means to deal with it effectively. Computer modeling can project and thus foresee crime risk. Surveillance equipment, lighting, lethal and non lethal weaponry are some examples of cutting edge substantive expertise about which a criminologist may have useful opinions. Use of a criminologist is recommended where evidence of the big picture is needed because the defendant is a government or national organization.

These experts are useful where the motivation of the criminal actor is in issue. Because security science is based largely on the theory of deterrence many cases involve questions of how specific measures would likely have influenced the criminal who victimized the plaintiff. If the criminal was apprehended background investigation concerning his past can be obtained easily. In some cases an interview can and should be had. Where plea negotiations take place the parties to a civil case can have input into the criminal process to obtain cooperation from the wrongdoers who will help in gaining an understanding of what motivated and/or precipitated the crime. Much can be learned in this way about important issues such as how the victim was targeted, how the venue for the crime was selected, what the goals of the criminal were, whether alcohol or drugs played a part and what effect unused but recommended security strategies would have had. If the criminal was not apprehended or identified the victim accounts and other evidence of the crime can provide a factual basis for a psychologist to draw inferences about the motivations, modus operandi, and likely ways the criminal could have been influenced by unused security methods. Naturally, a sound evidentiary foundation must be established for such evidence to cross the threshold from speculation to probability. These experts are complimentary to criminologists who can be described as taking a macro view of the crime while criminal psychologists take a micro view.

Ingress, egress, access to highways and public transportation, hiding places, lighting, and other environmental factors are relevant to understand how victim vulnerability may be predicted and how opportunity may be perceived by the criminal actor. Modern construction standards should contemplate the need for safe and secure premises. To the extent possible design should accommodate crime prevention/reduction. Where design cannot reduce risk planners should undertake security measures which compensate for identified risks. These ideas are now considered basic and fundamental in all public spaces such as airports, government buildings, sports stadiums and arenas, parks, and schools. Private sector structures and facilities must recognize these risks as well and accommodate them in construction and security planning.