Month: April 2016

One way to evaluate an expert’s qualifications when defending against the DEA

Ask yourself: How many doctors has the expert’s testimony convicted?

I have the privilege of defending physicians, pharmacists and nurses before state licensing Boards and the Drug Enforcement Administration (DEA). In one such case defending against the DEA, there was much discussion about which expert physician had the better qualifications – our expert, or the the government’s expert? Each was capable of qualifying as an “expert witness,” but I feared my client, the defendant-physician, took too much comfort in the better qualifications of his expert. I feared this nuanced discussion of which expert witness had the better qualifications was creating a false sense well-being mere weeks before trial. For me, perhaps the more important question is how many doctors has the expert’s testimony convicted?

Do not dismiss the DEA’s expert witness

One thing is certain, if the DEA’s expert witness has led a jury to convict another physician, that’s a dangerous witness, despite any perceived lack of qualifications. In my experience, it is not the expert witness’ qualifications so much as it is what the expert is willing to say to a jury.

And do not become complacent

I can tell many stories where the physician believed the risk of conviction, or the risk of a lengthy prison sentence, was low. In my experience, physicians and their families often rationalize why they won’t be convicted, or, if they are convicted, why they will receive a lenient sentence, perhaps probation, or time served, or one year, only to be sentenced to 5 years or more, and in one case, to 15 years. While I have obtained good results, and have even obtained the release from prison of two physicians, most often, it doesn’t happen that way. If you want to see for yourself, search the internet using some of these search terms: “physician convicted,” “doctor convicted,” “physician sentenced,” “doctor sentenced,” “physician acquitted,” and “doctor acquitted.” You will soon discover that good results for defendant-physicians facing DEA prosecutions are few and far between. Prepare accordingly.

Another reason to retain an appeals attorney early in the process

Orders versus judgments? When and what to appeal?

As an appeals lawyer, I am occasionally contacted by a trial lawyer on or near the last day to file a notice of appeal, anxious because her or she is uncertain whether a particular order or ruling is appealable. In these cases, the order is in hand, the time to file the notice of appeal is about up, and a judgment has not been entered yet. The trial lawyer’s question is usually something like this: Do I file a notice of appeal from the order, or do I wait for a judgment to be entered? This is no time for uncertainty. If you wait for a judgment to be entered, the time to appeal the order will have passed, and if it turns out the order was the thing to appeal, you will have lost your chance to do so.

When and what to appeal? – the source of the problem

Generally speaking, in both state and federal courts, a notice of appeal is often due within 30 days after entry of a judgment. Appellate lawyers know, however, that depending upon the circumstances of each case, there are shorter and longer periods of time to file a notice of appeal, so each appeal deadline must be independently evaluated and verified. Further complicating matters is the fact that sometimes there will be no judgment and, in these cases, the appeal will instead be taken from an order. This may occur, for example, when an order affects a substantial right and effectively determines an action so as to prevent entry of a judgment. This is just one example. There are many more, too numerous to list here. There are also important differences between state and federal appellate practice. The important thing to know is that often, much time, money, and grief can be saved by taking early action to set the stage for your appeal, just another reason to retain an appellate attorney as soon as you suspect you might need an appeal.

As an appeals lawyer, here is one way I avoid the problem

Time permitting, in close-call cases, when it is uncertain whether the appeal will be from an order or a judgment, I will recommend that the trial lawyer pursue entry of a judgment within the appeal period of the order. Then, with both an order and judgment in hand, I can file a notice of appeal from both documents. This approach ensures that both the order and judgment are appealed, eliminating the need to file a “precautionary notice of appeal” from the order because time is about to run on an appeal from the order. This approach only works, however, when there is time to pursue a judgment within the appeal period for the order. This approach will not work when time is up to appeal from the order, yet another reason to retain an appeals lawyer as soon as you suspect you might need an appeal.