The best way to be a successful witness is to be well-prepared. You probably won’t be successful if you arrive at the last minute and attempt to answer questions off the top of your head. This would likely make you appear both unprepared and unprofessional. Never allow yourself to be unprepared when presenting your evidence.
In all things, act in an impeccably ethical manner. Never sacrifice your personal or professional ethics by participating in questionable actions. Remember that all actions and statements must adhere to strict ethical standards.
expert witness
A person called to testify in a court of law who possesses special knowledge or skill in some specific area that applies to a case.
In many cases, your role in a trial will be as an expert witness. To be considered an expert witness, you need to acquire or demonstrate special knowledge of computers and computer evidence and skill at retrieving evidence from computers. Achieving the status of expert comes through education and experience. You become an expert witness when you appear in court for the purpose of presenting evidence or opinion. Most witnesses are allowed to testify only to facts they have perceived first-hand. That is, a regular witness can tell only what she has seen, heard, touched, felt, and smelled. After you are accepted as an expert in your field, however, your status as an expert witness allows you to provide an opinion about the evidence as well.
Take note: You will be required to justify your status as an expert in your field. You will have to produce documented qualifications, including education and practical experience from valid sources. This information will be provided to both parties. In other words, opposing counsel will receive a copy of your credentials and justification as an expert witness. Generally speaking, a résumé is not enough. You also need to provide additional information, such as:
- Education received and degrees earned
- Professional training received
- Certifications held
- Experience details
- Other times you testified as an expert
summons
A court order that compels a witness to appear in court and answer questions.
You are generally requested to appear in court either by receiving a summons or by a client request. In either case, your testimony should be completely unbiased and independent. The weight of your testimony depends on your credibility. When you receive a summons, make sure you are prepared before you appear in court.
Most attorneys recognize that an expert in a particular field is not necessarily expert in presentation skills as well. For those who appear in court, however, an ability to convey and explain information is nearly as important as possessing such information. If you are uncomfortable speaking in front of audiences, spend some time with a member of your legal team working on your delivery skills. Take the time necessary to ensure you are effective at getting your message across.
Expert Witness Training and Practice
Numerous trial support companies do business all over the United States (and elsewhere, to be sure). If you have never testified in court, or haven’t seen the inside of a courtroom lately, you can—and probably should—request your legal team to send you to an expert witness school or to a jury and courtroom consultant. These firms or individuals provide one-on-one training and coaching, along with practice at giving testimony and being cross-examined in a mock trial situation. One of your authors attended such a school at Bloom Strategic Consulting in Dallas, TX, and found the experience not just educational and helpful, but invaluable in preparing him to testify effectively in court.
The legal team and all expert witnesses must spend time preparing for a case. Attorneys usually want to meet with witnesses early in the process. Expert witnesses are sought only when they are needed to explain evidence or strengthen its impact. As an expert, you will be asked to provide information on your experience in one or more areas of expertise. You will need to recite information about other times you have testified. Be prepared to field the following questions:
- What is your educational background, including degrees earned?
- What experience do you have in the area in which you are an expert?
- How are you qualified as an expert in this area?
- Are you aware of any conflicts of interest you might have with respect to this case?
- Have you ever testified in court?
- If so, were you called as an expert witness?
In most cases, initial contact and an interview take place before a formal agreement to testify is put in place. The initial conversation becomes billable time only if you are ultimately hired. If you want to work as an expert witness, collect as much background information as possible before the initial interview so you won’t waste uncompensated time during initial conversations.
After you are hired as an expert witness, the legal team should question you thoroughly to uncover any issues that could hurt their case. Such issues could include past complaints or claims filed against you, conflict of interest issues, or involvement in activities that reduce your objectivity. During the initial conversations and interview, you’ll be asked to state that you are not aware of any conflicts of interest, or perceived conflicts of interest, that could arise during the trial that warrant the attention of opposing counsel.
Conflict of Interest
We’ve all heard the rules of radio giveaways: “Employees of Mega Radio Corporation and their families are not eligible to win this contest.” Avoiding a conflict of interest is the reason for this restriction. If Mega Radio Corporation gave prizes to its employees and their families, eyebrows would be raised. It might look as if the advertisers’ money were being spent on employee bonuses. As a result, listeners might lose interest and start tuning into other radio stations that give them a better chance to win prizes. Fewer listeners mean advertisers get less return on their advertising investments. Such situations result from allowing the interests of one party (the employees’ desire for bonuses) to conflict with the interests of another party (the advertisers’ desire to entice more listeners by using contests). When you find yourself in a situation in which you have incentive to make a decision in a particular direction, a conflict of interest probably exists. Such situations are best avoided whenever possible.
deposition
Testimony that is reduced to written form. (Video recorded depositions are also transcribed and reduced to written form, and both the written transcription as well as the video recording of the testimony may be admitted in court.)
Your first opportunity to share your knowledge may occur before the trial. A common pretrial activity involves taking depositions from witnesses. Depositions are conducted under oath and the testimony you give is admissible in court. A court reporter will take down and transcribe every word you say while you are “on the record.” In addition, your deposition may also be videotaped.
During a deposition, you are asked questions that pertain to your area of expertise and aspects of the case by counsel for both sides. You can exert a material impact on the case at this point. If you provide strong testimony and speak with authority, you may influence opposing counsel to explore a settlement without going to trial. On the other hand, weak and unsure testimony might encourage the other side to pursue a trial.
If your deposition is videotaped, it’s important to recognize that the camera is your audience. The temptation is to ignore the camera and concentrate on your questioner. If you do this, and your video testimony is shown in the courtroom, you will appear to be looking away from the audience. This is commonly perceived as insincere, arrogant, or untruthful to audiences who are used to seeing people on-camera looking straight ahead at the camera lens at all times.
It’s important to remember that you’re also talking to people who will be watching the video, possibly in a court room, not to the attorneys and the court reporter in the deposition room with you as you testify. Even if you look at the attorney who’s questioning you while he or she is talking, remember to look straight at the camera as you give your answers.
The section titled “What Matters Is What They Hear,” later in this chapter, discusses techniques to get your point across.
direct examination
Initial questions asked to a witness to extract testimony.
cross examination
Questions asked by opposing counsel to cast doubt on testimony provided during direct examination.
When a case goes to court, you will participate in two basic phases of the trial—direct examination and cross examination. Direct examination is where attorneys ask questions that allow a witness to provide testimony. Your legal team should provide you with a list of the direct examination questions they plan to use. Opposing counsel then has an opportunity to question you. Their line of questioning is called cross examination. The purpose of cross examination is generally to weaken your testimony. The best approach to handling cross examination is to be fully prepared with answers to likely questions.
Understand the Case
As early as possible before a court appearance, meet with your legal team to discuss the case. The goal of such a meeting is to understand the basic facts of the case. Although you may have been integral in the evidence collection effort, you may not know about other critical aspects of the case. Becoming an expert in every detail of the case is unnecessary, but understanding the case as a whole will help you testify for your own piece of it. Such knowledge also keeps your testimony from conflicting with other witnesses’ testimony. (We’ll return to this topic in the section titled “Say Only What You Must” later in this chapter.)
Many attorneys who work with technical cases understand their intricacies and want the whole team to be well informed. If you work with an attorney who seems to guard case information, think long and hard before agreeing to participate. If you do proceed with only limited awareness for a case, you may be surprised—even blindsided—by some of the questions you will be asked when it is your turn in court.
Another reason to understand the case is that you may not be the only expert witness. Other expert witnesses may be called on both sides. You need to understand the likely testimony of each expert before you prepare your own testimony. This knowledge will not change any of the facts in the case, but it will help you determine the scope of your own testimony. For example, if you know your own counsel will use a database expert, you can focus on other areas. Likewise, knowing that the opposing counsel has hired an expert to counter your testimony will direct your preparation. You should talk with your counsel to understand likely questions, or at least a general direction, that you may face during cross examination.
Understand the Strategy
After you have a grasp of the general facts of the case, talk with the legal team about their strategy for arguing the case. They may want to emphasize technical details. Or, they may want to simply touch on the technical evidence and focus more on other aspects. Your involvement depends strongly on the strategy the legal team chooses.
These techniques apply to presentations outside the courtroom as well. If your investigation is part of an incident response effort, the equivalent of a courtroom appearance might be a presentation to clients about the incident. The rules and environment might be different, but the general goals are the same. Your goal is to present evidence and provide an expert opinion as to what it means.
Remember the part you play in the courtroom. You are a witness; the attorneys are the primary players. They direct the action and call you when it’s time for you to contribute to the case. You were hired to play a specific role—namely, that of expert witness. Let’s talk some more about what that supporting role really involves.
Understand Your Job
The primary purpose of a trial is to provide a forum for an impartial individual or group of individuals to decide which party prevails in a conflict. In some cases, the facts of the case are plain enough for an ordinary individual to understand them. For example, in cases that involve traffic accidents, most people are familiar with traffic laws and the operation of an automobile. Unless unusual circumstances prevail, many attorneys will present the facts directly to a judge or jury.
Cases with important technical aspects tend to be different. They commonly involve details that most people do not understand. A case that involves ballistics and traditional forensic evidence normally requires an expert to present and explain that evidence. We’ve all seen televised court proceedings with the expert on the stand testifying as to forensic methods employed. Those experts are essential when it comes to explaining the intricacies of such evidence to a judge or jury.
Your job is often harder, though. Few ordinary citizens will profess to understand how ballistics or DNA analysis work. Although they may be familiar with those terms, most will agree that an expert is required to perform the actual analysis. Computers are different. Nearly everyone has a home computer. What’s worse, many home computer owners think they are computer security experts. Your first job is often to explain basic security concepts and how popular concepts may differ from reality.
For example, most people know what spam is, in terms of computer activities. Few know how it originates and why it is so difficult to stop. Similarly, most members of the general public do not truly understand malicious code, also known as malware. For example, very few people understand the differences between a virus, a Trojan horse, and a worm.
As an expert in the field of computers and computer forensics, you possess a level of knowledge that goes well beyond the common understanding of such things in our society. Your value to a case is to share your experience and explain how the evidence proves facts in the case. You are a teacher as well as a witness. Simply put, the legal team would not be able to convince the court that the facts presented are true and relevant without your help.