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This chapter is from the book

Why Should a Technical Expert Want to Work in the Legal System?

There are three very good reasons to acquire the skills necessary to become a good expert witness: (1) simple self-preservation, (2) the duty of any professional to help shape his or her community of interest, and (3) the very practical need of any expert to improve communication skills. Beyond these personal and professional responsibilities, experts must also attempt to affect the controls that society will inevitably impose on their own IT industry. When the industry does not develop its own acceptable standards and professional self-regulatory safeguards, outside of those imposed through the judicial process on a case-by-case basis, experts must be prepared to contribute to that process, in lieu of any other effective alternatives.

Given that our legal system is based on precedent, it's important to encourage courts to resolve conflicts involving technology using adequate and accurate explanations of the technology. Bad legal judgments based on poor or incomplete understanding of technical systems or devices are especially problematic since they are likely to affect the development of industry standards. Bad decisions can also create confusion in understanding where the definition of best practices stands for a given forensic discipline at any given time. These ad hoc standards tend to subject the profession to legal control by default rather than to gradual improvement resulting from constant peer review and constructive criticism, followed by general acceptance of improved standards by recognized experts within the discipline. This can stall needed technological advances—even those that remedy acknowledged flaws in existing systems and technology. For similar reasons, it's also important for information technologists to be heard in regulatory and legislative processes. These can lead to carefully crafted laws or regulations contributing to appropriate solutions to recognized problems.

Technological advances can drive broadscale, even revolutionary changes in everyday life. This often intimidates the general populace, many of whom neither work with nor understand the technologies. Although technological change in the United States has been going on constantly for nearly two hundred years, IT has sped up the velocity of that change and arguably also the pace of social changes in adopting and then adapting to these new technologies. Similar to the adoption of motor vehicles, IT has had unanticipated and profound effects on modern life, changing common perceptions of ownership, control, time, and space. As IT enables access to information that many people believe should remain private, it provokes considerable debate about privacy rights and personal information control. Its automation tends to eliminate human intervention from many mainstream processes (and the employment that human intervention represents), thereby threatening the personal security of some members of society. This introduces subsequent complications, making it difficult for society to fully understand how best to assign responsibility when IT failures result in financial or physical injuries—without killing the technological goose that lays the golden eggs.

It is predictable, even understandable, that those people most threatened by technology should seek to alter its perceived ill effects by lobbying their government representatives for additional regulation. At times, government can consider restrictions so Draconian that they can serve as roadblocks to technological progress. Similarly, many seeking to control perceived threats and the inevitable damages that accrue from new technology may attempt to deal with such problems by using the court system in both appropriate and inappropriate ways. Some file lawsuits, while others allege criminal violations by those who use the technology in a less orthodox fashion. Determining whether a lawsuit is appropriate or inappropriate often requires the early assistance of competent experts who can help the attorneys and the courts separate the dross from the gold in claims and counterclaims. Experts help provide a layperson lawyer and his or her client with a correct and comprehensible understanding of what the technology was designed to do and what it actually did in a particular situation.

All of this is quite in keeping with the American tradition of the law playing catch-up with an evolving technology that large portions of society are embracing. The problem is that we have never had to deal with a new technology quite as pervasive as IT adopted in so short a time. Not only does IT radically change the ways we communicate and process all kinds of information; it also has a dramatic effect on the very nature of a particular kind of information that the legal system calls evidence. Given the precedent-driven nature of common law, technology-related legal actions carried forth in the absence of objective and thoughtful technical experts can create problems. They represent a very shaky foundation on which to erect a set of standards and precedents to guide future attorneys and judges in the essential discovery, production, and sharing of evidence required for the efficient and equitable litigation of cases. As problematic as it is to have too few decisions to guide us (as is the case now with regard to IT problems and solutions), once even a few bad decisions are made it can be very difficult to correct or reverse them through the legal system.

Even if you do not believe that either your own self-interest or your duty to contribute to the creation of appropriate standards requires you to get involved with giving testimony in court, a prudent IT professional should still acquire expert witness skills. There has been a steady growth over the past few years in the number of lawsuits involving IT-related services and issues raised in civil cases regarding the discovery and authenticity of electronic evidence. Though you may read this book and never anticipate volunteering to be qualified as an ITexpert or even as a non-expert witness in court, you will almost certainly be called on to serve in such a capacity if you continue to work in this area. You may be asked by an employer or a party to a lawsuit to play the additional role of a witness or a consultant to in-house counsel or to another expert witness. Furthermore, the different roles IT professionals are asked to play may depend on their existing roles in managing or consulting on a technical issue that becomes involved somehow in litigation. In other words, it is very likely that during the course of your IT career you will sooner or later be called upon to serve as a witness, at least to the facts relevant to some issue in a case in controversy. Your expertise will be at issue one way or another. This may be due to a discovery that occurs on your professional turf or a disaster that occurs on your watch. Everyone needs certain core skills to be the most effective witness he or she can be. While these threshold skills will not necessarily be sufficient to qualify you as a top-flight expert witness, they will serve as the foundation on which to build solid expert witness skills that you can apply to provide effective testimony.

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