Information technology is an increasingly large factor in legal proceedings. In cases large and small, from the U.S. Government's antitrust suit against Microsoft Corporation, to civil lawsuits filed over the failure of a network, to criminal cases in which the authenticity of electronic evidence is questioned, the testimony of a technical expert is essential. But in order to be effective, an expert technical witness needs much more than an understanding of the technology in question.
A Guide to Forensic Testimony is the first book to address the specific needs of the IT expert witness. It will arm you with the tools you need to testify effectively. Inside you'll find everything from an overview of basic witness responsibilities and challenges to a deeper exploration of what produces successful technical testimony. Written by a computer security authority who has served as a technical witness, and a trial attorney who focuses on how digital evidence and computer forensics are altering litigation, this book is your guide to the complicated forensic landscape that awaits the expert technical witness.
This book contains a wealth of wisdom and experience from the front lines, including firsthand accounts of the challenges faced by expert technical witnesses, practical in-court examples, and helpful advice. Among the topics covered are:
Whether you are an information technologist asked to serve as an expert witness, a legal professional who works with information technology experts, a corporate risk manager, or a client whose interests are affected by the performance of IT experts, you will benefit greatly from A Guide to Forensic Testimony.
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1. Examples of Expert Witnesses and Their Communities of Interest.
Who Decides Whether an Expert Is Really an Expert?.
A Potpourri of Expert Witnesses from Other Disciplines.
Mona Lisa Vito: Reluctant Expert Witness in My Cousin Vinny.
Bernard Ewell: Fine Art Appraiser and Salvador Dali Expert.
J.W. Lindemann: Forensic Geologist and Clandestine Grave Expert.
Madison Lee Goff: Forensic Entomologist and Bug Doctor.
Approaches to Building Professional Communities of Interest.
Professional Problem-Solving Associations.
Government Training Programs for Forensic Experts.
In Forensics, No Expert Is an Island.
Why Do So Many People Cringe at the Thought of Testifying?
Why Should a Technical Expert Want to Work in the Legal System?
Everyone Is Subject to Subpoena.
So What Happened in This Deposition?
Every Transcript Tells a Story.
Quibbling with Counsel Can Be Counterproductive.
When Bad Strategy Happens to Competent Technologists.
A Learning Experience for Both Litigators and Witnesses.
What Fact Finders Say about the Importance of Testimony.
Testifying Effectively Is Not the Same as Solving Engineering Problems.
If Credibility Is Always the Answer, What Are the Questions?
U.S. v. Mitnick: A Case That Defined the Internet Threat.
Hiding and Seeking Digital Evidence.
The Simulated Testimony of Andrew Gross.
Visualizing Gross's Technical Testimony.
Demonstrative and Substantive Graphic Evidence.
Seeking Professional Graphics Assistance.
Choosing the Focus for Visual Aids.
Considering Which Elements to Emphasize.
Going Back to the Basics in a Network-Based Plotline.
Using Familiar Analogies to Describe What Computer Experts Do.
Remembering the Real Goal of Expert Testimony.
Selecting the Visual Components of the Story Line.
Showing and Telling Is Better Than Just Telling.
Knights Errant as Experts.
Why Does Everyone Love to Hate Lawyers?
Trial by Combat.
Evidence and the Advent of Testimony.
Experts Replace Bishops and Knights as Key Witnesses.
The Daubert Line—Corrections in Course.
The Rules of Engagement.
State and Local Rules.
The Roles of an Expert Witness.
The Consulting Expert.
The Court's Expert.
The Testifying Expert.
The Expert as a Witness to Fact.
On the Importance of Keeping Roles Straight.
When Consulting Experts Are Asked to Testify.
The Complex Art of Expert Testimony.
A Game within a Game.
Setting the Tone for the Lawyer-Expert Relationship.
Dreams and Nightmares—Take Your Pick.
An Expert's Dream.
An Expert's Nightmare.
New Technologies and Modern Legal Disputes Require More Experts.
The Expert Trend.
A Wake-Up Call for IT Professionals.
The Real Y2K Disaster.
With Omnipresent Digital Evidence, What Case Isn't an IT Case?
Technical Experts and Routine Legal Functions.
Dealing with Experts in the Age of Scientific Progress.
Frye v. U.S. : Distinguishing Pseudoscience from Science.
Keeping Quacks and Their Technologies at Bay.
Expertise in the Face of Technological Trends.
Bumping Heads with Phrenology.
Distinguishing Astrology from Astronomy and the Rule of Law.
Why Wasn't Phrenology the Kind of Expertise the Courts Wanted?
Modern Examples of Questionable Forensic Science Claims.
The Handwriting Experts.
The Fingerprint Analysts.
One Court's Changing Attitude about Fingerprint Forensic Evidence.
The Judge Presents His Initial Decision.
On Further Reflection, the Judge Changes His Mind.
Scientific Methods Are No Guarantee.
Learning from Pseudoscientists.
When Science Turns into Art and Vice Versa.
A Case in Point.
The Expert Storyteller.
A Failure Analysis: Examples of Ethics-Challenged Experts.
On the Importance of Knowing Where You Are (and Aren't).
Lightning Strikes Again: The Case of the Ethically Conflicted Expert.
Determining Master-Servant Relationships in Litigation.
Balancing the Demands of Expertise.
Ethical Principles for Information Technologists.
An Overview of Professional IT Organizations.
The Codes of Ethics.
Other Pertinent Rules.
Model Ethical Rules and Recommendations for Expert Witnesses.
The Academy of Experts Code of Practice.
Recommended Practices for Design Experts.
Recommendations for Structural Engineer Expert Witnesses.
A Cautionary Note.
Ethical Standards for Attorneys.
Going to the Movies for More Examples.
Pushing the Ethical Boundary.
The Responsibility of the Expert Witness.
Assessing the Expert-Attorney Relationship.
A Different Style of Reporting.
Rule 26 and Its Effect on Expert Testimony.
When Not to Document Process.
The Case of the Mystery Client.
Rule 26 Reports and First Impressions.
The Role of Expert Opinions and Reports: Learning by Example.
Experts Need to Write Their Own Rule 26 Reports.
Lies and Statistics.
Too Little, Too Late, Too Bad.
A Little More, a Little Later Doesn't Help.
Preparing Effective Reports.
Steering a Steady, Objective Course.
The Metaphor of the Gatekeeper.
The Effect of Gatekeeping on Expert Witnesses and the Court.
Historical Gatekeeping and the Needs of the Current Legal System.
Challenges to Technical Expert Witness Evidence.
The Classic Case of Dr. John Snow.
Putting Yourself in the Judge's Shoes.
Expanding the Standards of Daubert.
Brainstorming Strategies and Scenarios to Prepare for Daubert Challenges.
A Hypothetical Daubert Disqualification.
The Issues of the Case.
Synopses of the Experts' Rule 26 Reports.
The Issues Surrounding the Qualification of the Experts.
The Issues in Dispute.
The Structure of the Daubert Challenge.
The Challenge Itself.
What Happens Now?
Looking Forward to the Gatekeeping Challenge.
Taking a Page from the Jury Consultant.
The Paradox of Case Studies and Trial Preparation.
Why Should You Prepare for a Case That Will Never Get to Trial?
Learning by Example.
How Does the Court Deal with the Absence of Recognized Standards?
The Gates v. Bando Case.
Presenting the Expert's Qualifications.
The Devil Is in the Details.
The Parties May Be Held Responsible for Their Experts' Performances.
Sometimes Experts Have to Judge Other Experts—and Find Them Wanting.
Experts Often Quarrel for Legitimate Reasons.
The Rest of the Story.
Expert Performances Can Make Enormous Differences in Outcome.
What Can an Expert Do to Reassure a Lay Judge or Juror?
Some Rules of Engagement for Presenting Expert Testimony.
But Shouldn't We Expect Judges and Jurors to Be Experts Too?
Why Do Most People Respect Teachers and Authors?
Presumptions and Burdens of Proof and Persuasion.
Houdini as Expert Performer and Professional Skeptic.
Coming to Terms with the Different Roles of the Expert.
Houdini the Skeptic Assigns the Burden of Proof.
Why Experts Can't Create Idiosyncratic Standards.
Beware of Those Looking for the Perfect Expert.
Illinois Tool Works v. MetroMark Products: A Postscript to Gates v. Bando.
When the Defendants' Expert Is Not the Defendants' Ally.
What Experts Can Learn from Court Opinions.
Thinking in Pictures: Sage Advice from the Pros.
The Basic Philosophy: Keep It Simple and Honest.
Establishing Credibility by Teaching the Basics.
Turning Students into Teachers and Advocates.
Thinking about Highly Complex Technical Processes as Pictures.
Introducing the Expert with Graphics in the Opening Statement.
The Benefits of Using Graphics in the Opening Statement.
Graphics Speak to Both the Judge and the Jury.
Designing Defensive Visual Exhibits.
Follies with Visual Aids Can Be Disastrous.
Courts Have Concerns about Computer-Generated Evidence.
The Radiation Case Study from The Focal Point Archives.
What the Jurors Need.
Using Outlines for Technical Expert Testimony.
Using a Scoreboard to Tie It All Together.
Winning the Battle but Losing the War: The Risk of Argumentative Titles.
Authentication Tags for Visual Exhibits.
Don't Forget Spontaneously Generated Visual Exhibits.
Talk to the Jury, Not the Exhibit.
Mesmerizing with Magnets.
Connecting the Links in the Chain.
Law in an Age of Sound-Bite Attention Spans.
Playing for Effect.
What Fact Finders Don't Like about the Demeanor of Experts and Attorneys.
The Unbroken Circle of Professionalism, Preparation, and Organization.
Demeanor Professionals, Demeaning Professionalism.
Is Plastic Surgery an Issue Here-Face Saving Notwithstanding?
Clarence Darrow “Examines” a Witness as to His Demeanor.
Techniques for Fine-Tuning Your Courtroom Demeanor.
Controlling Demeanor Begins with Learning to Breathe and Relax.
Getting Centered with the Martial Arts.
Does the Current Adversary Ethic Threaten or Preserve the Legal System?
Do Nonverbal Communications Really Affect an Expert's Performance?
Verbal and Nonverbal Communications: Which Is More Important for Credibility?
Lawyers and Technical Experts Generally Prefer to Read.
Notes Don't Always Help Fact Finders Remember What's Important.
How Important Is the Quality of the Voice?
Combining the Voice, Hands, and Body Language with the Words.
What's in a Nonverbal Communication?
Positioning and Proximity.
Gestures as Essential Components of Testimony and Communication.
Ultimately, It's in Your Hands.
Working with Your Hand Gestures during the Course of Testimony.
Learning to Use Gestures Effectively.
Learning to Act the Part of an Expert Witness.
Rebecca Mercuri: Testifying in Cases of National Importance.
When the Initial Interview Consists of a Phone Call.
A Wide Variety of Expert Experiences.
On Testimony before Nonjudicial Fact Finders.
On Dealing with Logistic Issues.
Surprises amidst Lessons.
Donald Allison: Finding Feedback Loops to Improve Performance.
Deciding Whether to Accept an Assignment.
Conducting the Investigation and Reaching Conclusions.
Preparing to Testify at Depositions and Trial.
Testifying at Trial.
Soliciting Participants' Feedback after the Trial.
Eugene Spafford: Continued Education in the Legal Domain.
The Initial Interview.
On the Importance of Objectivity and Focus.
On the Importance of Flexibility of Role.
Packing Your Bags and Embarking on Your Own Adventure.
Frye v. U.S..
Daubert v. Merrell Dow Pharmaceuticals, Inc..
Kumho Tire Company v. Carmichael.
Joiner v. General Electric Company.
U.S. v. Plaza, Acosta, and Rodriguez.
Federal Rules of Procedure.
Federal Rules of Evidence.
An expert is just some guy from out of town. —Mark Twain
As usual, Twain is on the mark in suggesting that there should be something suspicious about a stranger who shows up and offers to help us with his expertise, and then quickly hits the road. For our purposes this apothegm may say even more about communities and the part they play today in deciding whom to trust as an expert, than it does about experts and how they worked in Twain's era.
This book is all about expert witnesses, with special attention paid to those who specialize in information technologies—the hardware, software, and data that make up computers and other digital systems used for data processing and communications. The level of technical expertise needed to deal with these systems often makes the question of assessing the expertise of a particular person daunting to all but other experts in the technical domain in question. The first chapter of this book introduces technical expert witnesses who testify in criminal and civil trials, and focuses on the communities of interest that society ultimately relies upon to certify the genuine expertise of their representatives and members in good standing.
When you begin to think about what it is that makes a particular individual an expert in the eyes of the law, and hence entitled to testify about his or her opinions in the course of litigation, you are led back to the specialized knowledge, training and experience that an organized and socially recognized community of interest creates and maintains. The most peculiar thing about the technical domains that comprise what is generally described as information technology is how little they resemble the traditional, professional, licensed communities of interest that exist in other areas, such as structural engineering or medicine. These communities become important to the law as it tests the reliability of the expert and his or her methods. Most judges and jurors first hear about them when a member of one of those communities is proffered as an expert witness in the course of litigation. The lack of an organized, licensed community of interest, with the traditional trappings of a socially recognized expert community creates a number of issues for IT expert witnesses with which the courts are just beginning to deal.
The authors introduce established experts from a number of communities of interest that lie outside of information technology. These experts, within ancient areas of expertise as well as brand new disciplines and sub-disciplines, have coped with the special demands of the legal system. Their stories may provide some organizing analogies for IT professionals who become interested in forensic practices and enable IT experts to build the lattice of disciplines, processes, and professional networks necessary to assure lawyers and courts that they are competent IT practitioners. The experiences of Raemarie Schmidt and her students bring us back to how some of the pioneers in IT forensics can contribute to recognized expert communities by developing standards and training that have become generally recognized by the courts.
Finally, a lighthearted account of the problems that a technical expert encounters in testifying in court is offered through the discussion of the film, My Cousin Vinny. In the film, the community of expertise that is represented by the character, Mona Lisa Vito (played to perfection by Marissa Tomei) is that of the automobile mechanic. This particular community reminds us that certain roles associated with IT are rapidly becoming as commonly accepted as those of the car mechanic and the stove or furnace repairperson. That these areas of expertise are generally recognized and often celebrated raises another specter for the community of interest. In this scenario, too many members claim expertise with too little self-regulation, peer review and evaluation by a recognized community of professionals. This erodes the ability to separate the charlatans from the qualified and recognized practitioners of the information technology trades.
Chapter 2 provides a real world tale of just how serious this kind of communication performance can be to individual and corporate parties. This chapter also explores the kind of expectations that legal and IT social critiques bring to bear on these expert performances by important IT witnesses in landmark cases. Selecting passages from the deposition of Bill Gates in the Microsoft antitrust case, a number of the recurring themes and issues associated with expert testimony that will be developed further in the rest of the book are highlighted and introduced. The most important of these is the perception of the demeanor and overall credibility of the witness and his performance on the stand. This perception by the fact finder overrides, as it should, all of the other components of the process of communicating complex concepts in formal testimony as a witness under oath. The return of Bill Gates to the witness stand two years later, and the dramatic change in the reporting of his second coming by the same IT and legal reporters is in and of itself the proof of the pudding for this book. Judicial fact finders and the public have lofty expectations of the expert witness, especially when the expert's testimony is key to understanding the merits of the case. Meeting those expectations requires certain things from the expert: experience, preparation and a commitment to communicating not only the obvious expertise of the witness, but also the credibility and willingness to provide useful information throughout the performance of testimony. This set of requirements might appear excessive, but in certain cases, such as Mr. Gates', the members of the public with interest in the expert's testimony number in the millions.
Chapter 3 reprises the well known story of how IT security experts Tsutomu Shimomura and Andrew Gross developed forensic tools to track down the hacker who broke into Shimomura's computer at the San Diego Supercomputing Center. The investigation is recounted in the form of a hypothetical direct examination of Andrew Gross as the government's expert witness and illustrated with graphics, designed to be used to introduce, illustrate and argue the complex technical steps that were taken in the investigation. The testimony also explains the expert analysis of the computer network evidence used to establish that Kevin Mitnick was the original intruder or at any rate to account for how he came to possess the stolen computer data taken from Shimomura's computer.
Chapter 4 provides some historical background for the reader. It outlines the evolution of the legal process and also explores the growing importance of expert witness testimony that accompanies the evolution of society's dependence on technology. The different roles of the expert witness, as consultant, strategist and testifying witness are introduced along with some of the problems that can arise when these often-conflicting roles are not kept clear and distinct by the expert and his or her attorney throughout the course of litigation.
Chapter 5 gives the beginning expert several examples by analogy of the kinds of problems that may persist, due to the pace of advance in information technology. Some of the problems are considered to be a direct consequence of the inherent immaturity of much of information technology. In particular, there are issues arising in areas where a scientific or rigorous community of interest has not yet been established, or where no formal educational or training is available. In these cases, the expert cannot point to generally accepted standards or a formal peer review process for determining the reliability of the concepts and techniques that he or she uses to decide what happened in a given case. Astrologers, phrenologists, handwriting and fingerprint comparison experts and their communities of interest are discussed to illustrate the kinds of problems that may be encountered by a number of IT domain experts, when their expertise is challenged in court.
Chapter 6 provides examples, many of them extreme, of what can go wrong when common-sense rules of professionalism and ethics are misapplied. It also outlines how the traditions of the legal system, regarding the preparation and introduction of expert testimony, place certain restrictions on the behavior of IT and other experts who are performing expert witness tasks in the course of litigation. Above all, the expert must understand that in civil litigation, the expert is ultimately working for a private party, through their legal counsel, but that the understandably biased advocacy decisions that are made by the party and the attorney about the course of litigation, must be segregated from the sound, objective judgments that the law and professional ethical rules require an expert witness to make about the application of their expertise and the communication of their qualified opinions to the court and the jury.
Chapter 7 shows how some experienced IT experts have handled the challenging task of ensuring that the professional relationship that must be established between the expert and the attorney and party to the litigation is solidly and clearly constructed and maintained. One of many useful metaphors for enabling both the lawyer and the expert to reach useful conclusions about issues within the expertise of the witness is to think of the formation of this relationship as a checkout for a flight. This analogy requires the expert to learn a lot about the role of being an expert before he or she is in a position to check out all the things that need to be in working order and to notice all of the indicators of problems before taking the plane into the air. Other approaches that have worked for both beginning and experienced IT expert witness practices is to find an agent or agency that specializes in matching appropriate experts with legal teams requiring particular expertise.
Chapter 8 is in some ways the most difficult material presented in the book. This is the most involved legal material offered to the reader and explores the kinds of criteria that courts have established for expert witnesses in general. The legal approach to screening expert witnesses has undergone significant change over the past decade through a series of Supreme Court decisions. The result of this series of decisions, starting with the landmark case, Daubert versus Merrill Dow Pharmaceuticals is that there are additional tests that an expert must pass in order to be allowed to testify as an expert. The major differentiation between old and new processes associated with qualification of expert witnesses involves the addition of a "gatekeeper" function, assigned to trial judges.
The gatekeeping function that most courts have now accepted in one form or another is a distinct departure from the traditional role of courts with regard to use of experts. Under the old system, the courts passively allowed attorneys to proffer their chosen experts, allowing the jury to decide what weight to give to the respective witnesses' opinions. In the post Daubert world, the judge acts as a "gatekeeper" and is charged with weeding out unqualified experts and qualified experts who deliver unreliable opinions that are not relevant to the particular case at hand. This function is implemented by providing a process enabling adversaries to challenge the qualifications or relevance of a particular expert. The challenges are conducted in addition to and in advance of the more traditional impeachment of witnesses through cross-examination.
This expert qualification and challenge process requires additional work on the part of expert witnesses. First, the expert needs to consider whether he is adequately qualified by education, training and experience to investigate and opine about particular matters before the court. While acting as an expert witness, he must also keep abreast of legal developments and to make additional efforts to determine all that will be involved in a particular assignment. Experts may also need to determine how a soliciting attorney has dealt with past cases before the judge in which gatekeeping challenges were mounted to his or her experts. Finally, the expert must accept the additional responsibility for anticipating and dealing with serious challenges to his qualifications and expertise. Finally, this rapidly changing body of case law needs to be understood on the fly, as it has only recently been used to challenge IT expertise and experts.
The good news is that experts don't have to take this on all by themselves. All competent trial lawyers can be expected to have kept up with the most recent changes in the way this challenge round is evolving in their jurisdictions, and should be able to explain it clearly to the beginning expert. The information in this chapter is presented in hopes that it will enable IT experts to pose relevant and concise questions about this new area of the law and at the same time prepare them to better understand the significance of the legal advice they receive from trial counsel concerning these new developments and their impact on the performance of the witness.
Chapter 9 provides a detailed example of how judges look at qualifications and approach in deciding between competing theories and methods of opposing experts. The landmark case of Gates v. Bando, which established one of the practice standards for computer forensics, is examined. In particular, the testimony of Robert Wedig, the expert witness for the defendant who prevailed in that case, is assessed and the factors affecting the judge's decision to favor Dr. Wedig's opinion over that of the opposing expert articulated. In this chapter the historical example of Houdini is used to illustrate the different roles of the expert—as performer demonstrating a known expertise, and the expert taking on the different role of skeptic, uncovering the abuse of known techniques or an unknown expertise used by an opposing expert or attorney to obfuscate the facts, or to deceive the factfinder.
One of the most important ancillary measures that can be employed by an IT expert in court is that of visual displays. Chapter 10 takes the subject of graphic images into detail and provides a visual metaphor to allow the beginning expert to think about the entire process of approaching a technical problem involved in litigation through the eyes of graphics designers. The litigation graphics consultants who work with lawyers and their technical experts enable them to focus on the most important concepts and to organize their presentations with the aid of graphical tools. The resulting visual displays vastly enhance the expert's ability to communicate the analysis and conclusions to judges and juries. Several examples of the work of one of these consultants, The FocalPoint, are provided. In addition, the methodology that Chris Ritter, a former litigator who now works for The FocalPoint, has developed to be able to assist both lawyers and expert witnesses to prepare for court is also included.
Although experts are often tempted to focus on the content of their testimony, in court, the context of testimony is also very important. This means that even the most brilliant and accurate technical analysis may not be accepted if the demeanor and non-verbal communications skills of the expert witness are lacking. Chapters 11 and 12 contain various analogies and techniques for improving the ways that witness demeanor and non-verbal communication skills can be integrated with expert testimony.
With all the provisions and restrictions of the legal process outlined, Chapter 13 provides a wealth of wisdom from the front lines. This chapter concludes with the advice of several noted IT experts with differing degrees of experience. Professor Gene Spafford, noted for his accomplishments in the software engineering and network security area, offers insights gained over his decades of testifying in cases involving intellectual property theft and patent infringement. , Don Allison, whose expertise in the discovery and analysis of digital evidence has placed him on the stand in the tawdriest of child pornography cases, offers his feedback loop methodology that not only carries him through the trial process, but also allows him to refine his expert witness skills. Finally, Professor Rebecca Mercuri, a world-renowned specialist in the area of voting technology, offers insights gleaned over a decade of testimony in a wide variety of cases, ranging from a murder trial to the appeal of the 2000 U.S. Presidential Elections results in Florida.
James Boyd White, a law professor and respected author has written:
Perhaps I am answering a voice, in myself or in the culture, that says that there is no such possibility; that law is only the exercise of power by one person or group over another, or only a branch of bureaucracy, or only money-making, or only instrumental; that it has no real and independent value for the person or the community. Thus I ask whether we can imagine law as an activity that in its ideal form, at least on occasions, has true intellectual, imaginative, ethical, and political worth.In doing this I try to show that the law can be seen as a particular instance of a human activity that is far more widespread than law itself, and of which we have splendid exemplars from which to learn: the activity of making meaning in language in relation to others. To see law this way opens a whole set of issues for analysis in the law (and in other instances of meaning-making too): the quality of the language that a particular person inherits and uses; the nature of her transformation of that language in her use of it; and the kind of relation she establishes with the people she speaks to or about. *
In several thousand times as many words, this book attempts to explain the significance of Mark Twain's single, cynical quote and to do it with the optimism and hope of Professor White.
At the outset, it should be made clear that the authors, unlike Samuel Clemens, are not professional writers, humorists, or entertainers extraordinaire. If they could have figured out how to make a living being professional philosophers, one can assume that they would have done so already. Once it was clear that they were unable to make their livings writing, entertaining, or philosophizing, they chose instead to pursue careers in the fields of information technology and law, respectively.
Nor, in retrospect, are the authors as clear as they would like to be about the points they set out to make in all these pages. The problem that brought the authors together to write this book emerged from doubts about the ability to communicate the idealistic goals tempered by the cynical observations that color the world of the expert witness. They concluded that simply sending something as wonderful as the Twain quip, and as thoughtful as the White quote, together, to all the potential technical experts who had asked them for advice would be viewed as inadequate. Even assuming that their inquirers would like the philosophical position of Professor White when pondering the problem of testifying as an expert witness in the real world (given the way the real world in Twain's view really is) they would still need a path to follow.
So, the main impetus for writing this book was to define some paths that could allow technical experts to more easily gain an understanding of why it is critical for those qualified and capable of joining the fray, to do so. For in doing so, they contribute to Professor White's "making of meaning in language in relation to others" involved in the litigation of information technology issues.
Our subject then, is how to master the art of presenting effective information technology expert witness testimony. This testimony, in the best case, enables a judge or a juror to make meaning in relation to complex technical concepts involved with information technologies. This art in turn enables the fact finders in litigation to relate that meaning to an important controversy, in order to make sound judgments about it.
And yet, Twain must keep bringing us back with his ten words to the way we suspect things really are in the world of litigation. And we realize that we must deal with that as well. No one wants to be perceived as a circus clown in a setting where everyone else is pretending to be serious about another game. Our suspicion that we are being foolish or that we will be made the fool, by following Professor White in his optimism about the law and our legal rituals, makes it all the more difficult to sustain such optimism. Yet the sustained effort to communicate carefully and objectively the professional experiences and special knowledge we wish to share with others is not difficult to justify. It is both the essence of the scientific method and the most rewarding kind of trial advocacy.
We have chosen to undertake the job of overcoming the cynical force of Twain's apothegm with analogies, metaphors, stories, disciplines, opinions and anecdotes. It is our hope that the humor of some of these stories and the insights and wisdom of some of the opinions and analysis of other experts will go some way in overcoming that convenient cynicism. There will always be those who would rather remain uninvolved, while technical experts and their lawyers (from out of town) increasingly command the center stage of a growing number of legal performances. Our hope is that their numbers will be reduced by some who are challenged by the materials collected in this primer.
This is not by any means meant to be a law or litigation practices text. Indeed, the authors both here and elsewhere in the book explicitly disclaim any intention to offer or suggest legal advice to any reader. Such legal advice must come from legal counsel, engaged to offer it and the materials in this book should not be relied upon as legal advice or passed onto others as such. Nor is this book meant to be treated as yet another technical manual, to be consulted only when the reader is in the midst of a legal crisis and in search of specific answers to specific technical problems. The book is perhaps best considered as analogous to a general travel guide to an exotic destination that the reader anticipates visiting in the near future.
The authors appreciate the paucity of time available for technical experts to devote to reading a book such as this. Accordingly, although the book does not attempt to convey either legal advice nor specific technical information, the chapters should still prove useful to the techie and his managers. The chapters can be used to guide the consideration of "what if" scenarios that the authors may well come to pass in the lives of many who would read this book. Furthermore, like a travel book, this primer may at least provide some of the right questions (asked in the appropriate local dialects) that an expert can use to ask for directions as he navigates to the interesting places and events that are often found in the world of litigation.
One of many ways to use this book to prepare for visiting the land of litigation as an expert, is to begin with the first chapter to get a quick and entertaining overview of the process of becoming a recognized expert and testifying in court. The first chapter describes some of the different ways that experts have created careers that involve testifying as an expert witness and how they have helped to create entire communities of experts recognized by the courts. A critique of the popular film, My Cousin Vinny, shows how Hollywood and many potential jurors may view the role of a technical expert, played by Marisa Tomei, who won the Oscar for her performance. The choice of a second chapter is not critical to making the best use of this guide. In fact, the techie reader may wish to go directly to the last chapter, which includes the experiences and lessons learned by several accomplished IT experts. These technical experts, who are all widely recognized in their communities of interest as such, have varying degrees of experience with actually serving as expert witnesses in criminal and civil litigation. Their observations can serve either as reviews or introductions to the chapters to be found between the first and last.
Readers with more time or greater interest in visiting the land of litigation may want to read the first three chapters to see more examples of actual testimony and hypothetical testimony and the use of visual images to communicate complex information technology concepts and forensic techniques, based on real cases that have been litigated. Chapters 2 and 3 feature excerpts from the Microsoft deposition testimony of Bill Gates, available on video at the reader's state depository library, and the hypothetical direct examination of an expert in the mock trial of Kevin Mitnick, which due to a plea agreement, never took place, but is based on a widely discussed hacking incident and forensic investigation by Tsutomu Shimomura and Andrew Gross. This can be used as an example of what an expert, testifying in a similar case, might expect by way of direct and cross examination.
For readers who are curious about the criteria used to establish expertise for purposes of testifying in court there are chapters that take up the issues frequently encountered when inexperienced experts are first contacted by an attorney, looking for a witness for a criminal or civil case. These sections will be most helpful if the expert already understands a little about the process, which can be gained by reading one or more of the first three chapters. Readers who have already had some experience in consulting or testifying, and want to know more about the qualification of experts and the ways that the expert relationship with trial counsel can go off the rails (despite the most careful negotiation and attention to the formation of the relationship) will find additional chapters that focus on those kinds of problems and complications.Although it may be difficult for techies to master the cases and their analysis of the legal issues that concern the gate keeping duties of trial judges, it is crucial for the beginning expert to understand how the decision to allow a proffered expert to testify at a hearing or trial is being arrived at in different courts across the country. Again, it may be most helpful for readers without any prior experience to gain at least an overview of the process before plowing into the gate keeping chapter. On the other hand, if the reader can understand all of the interesting ways that the map created by Sir John Snow to pinpoint the cause of the deadly cholera epidemic around the Broad Street Well is a classic example of an expert who is qualified in every way to testify about the cause of a cholera outbreak, that reader should probably move on to other chapters. We have not found any better example of the finest expert witness work, quite consistent with all of the evolving gate keeping tests currently being developed by the courts, and quite sufficient to enable Dr. Snow to testify about the outbreak of cholera in London in 1854, or anywhere else for that matter. So, if after taking the time to read through the decsions of the United States Supreme Court that are included in the Appendix, the reader suddenly "gets it" while looking at Snow's map, then the rest of the book-as they say-is history and probably not essential reading in order to put into practice what the gatekeeping issues are all about. (estimates of reading and viewing time vary) Unfortunately, even with this predictable breakthrough, that leaves learning to work with lawyers and to testify effectively to master.
For many technical experts, manuals and guides serve as references of last resort. These technical gurus enjoy and excel at learning by doing and may welcome the first opportunity to testify as an expert witness as a challenge, not unlike learning a new programming language or system troubleshooting technique. Unfortunately, they often fail to gauge the complexity of the preliminary processes required to get to the moment of truth, when the expert actually explains how it really is to a judge or jury. Furthermore, testifying in a serious legal controversy may be one of the few situations that a technical expert will encounter where he must prepare for battle. At a minimum, he needs to read some rules and some literature before he finds himself being cross-examined by a lawyer who has spent a career in general, and months or perhaps as much as a year preparing to call into question the testimony the expert plans to give. Even with that preparation, the best-planned testimony has a way of taking some dramatic detours and complete changes in direction when subjected to an expert cross examination by an experienced trial lawyer. One must assume that the lawyer has had the benefit of reading all of the available literature and of being prepared by an equally—if not more qualified—expert of his own. As Bill Spernow (a widely recognized expert in many IT domains, whom you will meet in the final chapter) likes to say, "This is not something you can afford to learn by doing, at least if you plan to testify more than once in your life."
Spernow proposes (and the authors agree) that the topic addressed by this book is actually a prime example of the age-old question: "How do you get techies to read the manual before they jump in with both feet and try to make something work?" This is an especially important question for those in information technology, where the archetypical personality thrives on improvising solutions in the trenches and getting code and systems to work by tinkering with them, not formally planning ahead. Spernow also asks the question of whether or not this kind of perspective would ever fly within the legal community, where ritualistic procedures and time are such serious and constant constraints.
Spernow is certainly right to raise these issues about the kind of fit that can be expected between techies and attorneys, and he is correct in his suspicion that it was the legal system and not Benjamin Franklin who first coined the phrase "time is money". Lawyers also keep track of the performance of expert witnesses, even if experts have not yet started to monitor their peers and to evaluate their performances in the courtroom or in recorded depositions. Lawyers have long since had their own networks for efficiently sharing this accumulated wisdom as to whom to trust as the key expert in an information technology related case. Make no mistake, the record that is made of your first or most recent performance will be consulted to determine whether you can be relied upon to perform the duties of an expert in any future litigation for which you may be considered.
The legal profession will not easily understand or embrace the ways of the techie, who prefers to tackle problems on the fly. It may not care about the techie's demonstrated success in using these methods in solving a purely technical problem. It is much more likely that should the techie decide to play this expert witness game, he will need to understand the perspectives of lawyers and judges and consider making certain accommodations to the ritualistic and traditional procedures that the legal process brings with it. Furthermore, he must understand and accommodate the accompanying constraints on his freedom and his time.
Consider the function of this book to be twofold. First, a number of the chapters of this book are primarily concerned with acquainting the technical expert with this very different world using various analogies, cases and stories of the involvement of other techies in the litigation game to accomplish this goal. Secondly, there are recommendations and tactics for dealing with specific challenges that the legal system presents to the technical expert. It is the hope of the authors that this combination of features will eliminate many of the potential headaches that might face a techie headed for his day in court.
* White, James Boyd, Dialogue:" A Conversation Between Milner Ball and James Boyd White, 8 Yale Journal of Law and Humanity: 465(1996) p 466.
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