The Art and Practice of Testifying as an Expert Technical Witness
- 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
- A Learning Experience for Both Litigators and Witnesses
- What Fact Finders Say about the Importance of Testimony
- Testimony—Take Two
- If Credibility Is Always the Answer, What Are the Questions?
This chapter is from the book
This chapter is from the book
This chapter is from the book
Why Do So Many People Cringe at the Thought of Testifying?
For some IT professionals, participation in any of the formal, regimented rituals of life is mind-numbing, something to be avoided at all costs. For other IT experts, legal and business tasks and functions are unappealing because they violate two of the most important conditions for happiness in the technical world: first, the need for a great deal of control over the environment and conduct of one's life and work, and second, the need for a constant stream of intellectual stimulation. Were members of the IT community asked to name two things universally reviled by IT experts, they'd likely select micromanagement and boredom.
For those IT wizards who possess these aversions, the first question that might arise in the discussion of expert witness skills is "Why would I ever want to do something like that?" Why should any self-respecting IT expert ever want to get involved in the legal process? After all, the worst attorneys (who seem to be the only ones we ever see featured on the nightly news, depicted in TV shows or movies, or described in novels) are usually characterized as ranging from obnoxious to sleazy, terminally bureaucratic to heavy-handed, archaic to simply slow-paced. This implies that any involvement with the legal community is likely to produce either intense discomfort or boredom for the IT professional who is unfortunate or foolish enough to be caught in its clutches.
In this chapter, we begin the process of arguing the case for why you, as a technical expert, should look forward to your day in court. Our message is simply that it is far better for you to prepare to be a witness (expert or otherwise) as a basic part of your professional duties and skills than to continue to deny that your day is coming and then become bitter about the results when you are finally called to the stand. As you will see evidenced in a major case, U.S. v. Microsoft, regardless of your status and personal views of the desirability of becoming involved as a witness, you might not be able to opt out of it. The witness stand is a powerful symbol within our legal system. Potential witnesses (even when they are as important an individual and as highly acknowledged an expert as Bill Gates) do not always have the final say about whether they end up there. The power of testimony is a two-edged sword, one that can devastate those associated with the witness as easily as help to defend them in a criminal case or advance their just cause in civil litigation. Once compelled to serve as a witness, it is too late to begin rationalizing about why you don't want to be there and the fact that you don't know how to prepare for the experience. Unless you have taken the time to carefully prepare both yourself and your testimony, there are no guarantees that you will survive the experience with reputation, finances, and sanity all intact.
However, the reality of the litigious world in which we live does not need to terrify the potential expert witness. Much like learning to dance gracefully, to competently play a competitive sport, or to persuasively speak in public, we believe that you can develop some basic skills that will enable you to survive the experience of serving as an expert witness. With guidance from the attorneys who are involved with the witness, a beginner can also learn to master the practice to the extent that it becomes an enjoyable and profitable experience. In this book, we provide information and techniques for motivated technologists that will prepare them for this journey.