CHAPTER 73

EXPERT WITNESSES AND THE DAUBERT CHALLENGE

Chey Cobb

73.1 INTRODUCTION

73.2 DAUBERT

73.2.1 Expert Witnesses' Testimony

73.2.2 Daubert Challenge

73.3 WHETHER THE DAUBERT CHALLENGE IS APPLICABLE: REFINING DAUBERT

73.3.1 General Electric Co. v. Joiner

73.3.2 Kumho Tire Co. v. Carmichael

73.4 DIVIDED WE FALL?

73.5 BEING THE BEST YOU CAN BE

73.5.1 Prepare Your Résumé

73.5.2 Find Out Exactly What Testimony Is Expected

73.5.3 Examine the Paperwork

73.5.4 Start Reading

73.5.5 Prepare a Written Report

73.5.6 Ask for Pretrial Meetings

73.5.7 Be Professional

73.5.8 Accept the Oddities

73.6 SUMMARY

73.7 FURTHER READING

73.8 NOTES

73.1 INTRODUCTION.

Whenever science or technology enters the courtroom, there must surely be an expert who can give clear and proper explanations of the subject matter to the judge and jury. As new sciences and technologies have emerged, the courts have had to decide if a person is, indeed, an expert and whether or not the science is real and admissible.¹

In 1923, the United States courts began accepting scientific evidence based on a new rule. That rule used the “general acceptance” test to determine if evidence was legitimate. This test was based on the rulings in Frye v. United States, which declared that if a scientific practice was generally accepted among the scientific community in which it was practiced, it could be admitted in court. This has become generally referred to as the Frye test.²

In 1975, the federal government made the scientific assertions a bit stronger by issuing the Federal Rules of Evidence No. 702 (FRE 702), which states in part:

About the same time that FRE 702 was created, various states started changing laws to include the “theft of computer services” as a punishable offense, but it was not until 1984 that the Counterfeit Access Device and Computer Fraud and Abuse Law (18 U.S.C. § 1030) was created, officially making it a federal offense to play fast and loose with computer systems of any kind.⁴

Computers had been accepted as a science, crimes could be committed on or with a computer, and someone would be needed to explain computers and their workings to the courts. Enter the digital expert witness. Although it is difficult to say when the first computer expert was used as a witness in a computer crime trial, it is fair to say that such experts soon began playing an important part in the judicial process.

Since computer crimes became “official” in 1984, computer experts are often needed in trials in which the examination of a computer or computer component is crucial to proving the case. For example, in 1991, Special Agent Jim Christy of the Air Force Office of Special Investigations (OSI) became involved in a murder case on an air force base where the suspect had physically destroyed two floppy disks by cutting them into many pieces. Agent Christy and a deputy played with the pieces like a jigsaw puzzle until they eventually recovered 95 percent of the data on the disks. Those data were key to obtaining a conviction.⁵ Following that case, computer forensics became a hot topic and a new industry soon followed.

The computer crime laws have been updated many times in the ensuing decades, evidence rules have changed, and computer forensics are considered a solid science, but it was Daubert v. Merrell Dow Pharmaceuticals case in 1993 that really began to have an effect on expert witness testimony in cases where a computer or related technology is involved.⁶

73.2 DAUBERT.

In 1974, a boy name Jason Daubert was born with a severely disfigured right arm and hand. His mother had taken Bendectin, an antinausea medication, made by Merrell Dow Pharmaceutical, to combat the morning sickness she experienced while pregnant. This particular drug had been taken by tens of millions of women over the course of more than two decades, and a considerable number of children were born with significant birth defects. Many thousands of families took Merrell Dow to court over this problem, but Daubert's case was not decided until 1993.

73.2.1 Expert Witnesses'Testimony.

Merrell Dow stated that the drug was not the problem, and worked to get the case thrown out of court. Merrell Dow presented the court an affidavit, given by a medical doctor, stating that he had reviewed many studies that indicated that the drug offered no risks in humans when taken during the first trimester of pregnancy. The Daubert family countered with eight affidavits from other experts that indicated there was a significant risk of birth defects in animal tests.

Sadly, the court did dismiss the case. In simple terms, the court felt that the Dauberts' affidavits did not compare apples to apples (i.e., animal studies were not the same as human studies). More important, however, the court also said that Dauberts' experts' findings were not admissible because they were neither published nor had they been subjected to peer review.

73.2.2 Daubert Challenge.

The Daubert decision was heralded by many in the legal system as one of the most important findings by the Supreme Court in decades, because it went straight to the heart of the question of expert witnesses and testimony concerning science of one type or another. Many attorneys felt that juries were not capable of understanding new sciences or able to find flaws in scientific methods. With the Daubert case, however, the judges become “gatekeepers” of admissible evidence and, as gatekeepers, they decide whether scientific evidence could be admissible at all, based on these considerations:

• Whether the theory or technique used by the expert has been tested or can be tested
• Whether the theory or technique has ever been published and subjected to peer review
• Whether there is a known or potential rate of error for the method used
• The degree of acceptance within the relevant scientific community
• Whether standards exist for the method or technique used

73.3 WHETHER THE DAUBERT CHALLENGE IS APPLICABLE: REFINING DAUBERT.

It is hard to imagine any legal ruling in a U.S. court ever going unchallenged for very long, and so it went with Daubert. When lawyers refer to a Daubert challenge today, they are more likely making reference to the Daubert Trilogy, which are the rulings in Daubert plus two other subsequent cases: General Electric Co. v. Joiner⁷ and Kumho Tire Co. v. Carmichael.⁸ In these cases, the judges made rulings that were an attempt to further define and refine the original Daubert rulings.

73.3.1 General Electric Co. v. Joiner.

The 1997 Joiner case was one concerning product liability. Experts were called up to testify to the cancer-causing abilities of a certain fluid that Mr. Joiner came in contact with on a daily basis. Ultimately, the ruling made changes to the original Daubert ruling by adding that the Daubert challenge should be used not just for scientific testimony but for all testimony that could be described as “scientific, technical or other specialized knowledge” under FRE 702.

Additionally, in Joiner it was ruled that the judge's scrutiny is not limited to methodology but can extend to the expert's analysis. This puts another strain on expert witnesses because the science, technology, and methodologies of collecting the evidence can be fine, but the interpretation of that evidence can be called into question.

73.3.2 Kumho Tire Co. v. Carmichael.

Last in the Daubert trilogy is Kumho Tire, which was another product liability case tried in 1999. The science in question here revolved around tire failure, and Daubert challenges abounded. The final ruling in this case decreed that a trial judge is vested with broad authority to determine whether and to what extent the enumerated Daubert factors are applicable to a case.

To clarify: Technical and nontechnical testimony can be challenged, the expert witness's findings can be challenged, and, finally, the judge can decide that all, some, or none of the Daubert challenges apply.

Computers are sometimes easier to understand than U.S. law.

73.4 DIVIDED WE FALL?

Since Joiner and Kumho Tire, there have been other decisions concerning Daubert, admissibility of evidence, and expert witnesses, but the Daubert trilogy seems to be the standard—at least for federal courts. (Daubert and subsequent decisions were made in federal courts.) State courts, however, seem to have a lot more leniency in deciding what rules to use to determine admissibility. If you are an expert witness in a federal trial, there is a good chance you may have to face a Daubert challenge. If the case is at the state level or lower, you will likely experience an unusual mix of rules and challenges. The next list shows which standards apply in different states of the United States.

If you are called as an expert witness in any case, it is best to know what rules and challenges the court may be considering in the case. Leave no doubt; talk to your attorney and, if he or she has not considered a possible Daubert (or other) challenge, it could mean a tough road ahead. A competent attorney will be able to give you guidance on what testimony is likely to be challenged, and an excellent attorney will spend a long time with you going over your questions and concerns.

73.5 BEING THE BEST YOU CAN BE.

Being an expert witness in a trial means more than just sitting in the stand and letting your expertise and knowledge flow. You need to be on the top of your game and know absolutely all you can possibly know about the subject matter in which you are to give testimony. One court recently dismissed an expert witness's opinion in digital forensics because he had heard of a certain book but had not personally read it.⁹

Although there are no hard-and-fast guidelines to being a good expert witness, you can use some general stratagems that have worked well for others. Certainly, if the list of books in online bookstores is any indication, the market for expert witnesses is strong.¹⁰

73.5.1 Prepare Your Résumé.

The first step in becoming an expert witness is to have a very strong résumé that is completely and totally factual. The résumé will be entered in the trial records, so this is no time for elaboration of the facts. Expert testimony is allowed only if the court declares a witness to be an expert in a specified field, and your résumé will help establish the facts of the matter.

Highlight these items in your résumé to indicate your areas of expertise:

• Education
• Training
• Certificates
• Licenses
• Employment
• Lists of published articles, books, opinions
• Lists of speaking engagements and titles of talks

Once the court has examined your résumé, oral examination by the attorneys and the judge will likely follow. This can be quite easy, or it can be long and arduous.

73.5.2 Find Out Exactly What Testimony Is Expected.

When contacted by an attorney to be an expert witness, do not be too fast to accept or decline. Most likely the attorney will be fishing at this point and will discuss things only in broad, general terms. It is also likely that your contact has limited knowledge of the subject matter. Find out as much as you can about the charges and what the attorney needs (or wants) to make the case.

Once you have reached an understanding with your contact, get everything in writing and make it a contract. This will be a statement of what is expected of you and what expertise is required to give the testimony. Your contract should also list your fees and payment schedule. This is where TV and reality take different roads. You have probably seen televised courtroom dramas where the opposing counsel undermines an expert witness by asking “How much were you paid for your testimony today?” Although that makes good television, in reality the courts expect that an expert witness is paid, and a fee actually lends credibility to the witness.

Also look for any legal protections you will be offered for your testimony. You might be asked to do or say something that is a potential breach of ethics or confidentiality, and this could result in a loss of certain types of certification.

73.5.3 Examine the Paperwork.

As soon as you are under contract, review the paperwork. If you discover there have been misrepresentations and you no longer want the job, you can back out at this point with no hard feelings. Of course, you may want to remain on the case, but you will need to discuss any concerns or questions with the attorney and possibly make an amendment to your contract.

Go over the paperwork as many times as you can until you are completely familiar with all aspects of the case. If the trial is particularly contentious, your familiarity with the case will certainly come into question.

73.5.4 Start Reading.

Now is a good time to start brushing up on your knowledge base. Dig into your library of industry standard books and give them a review. Look for recent books on the subjects and articles in reputable journals. The more you are able to quote facts and figures, the better you will look on the stand.

73.5.5 Prepare a Written Report.

Whether or not a written report is required should be a condition of your contract, but it is always a good idea to write up a report, even if it is just for your own use. While on the stand, you will be allowed to refer to your notes and to your report, although the court may want to examine them. Notes prepared at the time observations were made have stronger evidentiary value than statements from memory. This is a good strategy and makes you look very professional, and strong in your opinions.

It is a good idea to list all your sources and resources in your report, as well as your methodologies. This is an area where the Daubert challenge can get sticky, and the veracity of your opinion, based on what you have used and how you have used it, may come into question.

73.5.6 Ask for Pretrial Meetings.

It is always a good idea to practice what you need to say, especially when it is to be delivered to a large group of people. Just as you would practice giving a lecture or speech, you should practice what you are going to say on the stand. You will need to appear to be confident at trial, so ask the attorney for assistance in preparing for trial. There is always the possibility that new questions or concerns may arise during the pretrial meeting, but it is better that these come up in the meetings than in front of the court.

73.5.7 Be Professional.

Everyone is familiar with the geek stereotype: long hair, torn jeans, T-shirt, and sandals, but that is totally inappropriate. Dress professionally for court. When giving your testimony, use language that the layperson can understand. Do not let your ego show, and certainly contain your temper.

73.5.8 Accept the Oddities.

No one expects you to understand everything that happens in a court proceeding. Simply answer the questions directly, and do not be afraid to say you do not know. (If you do not know because it cannot be known, however, that is important to relate.) You do not have to justify anything you say unless you are asked to. If an objection is raised, stop speaking and wait for the judge to ask you to continue. Last, do not be afraid to ask questions yourself if you are unclear on questions or procedures.

73.6 SUMMARY.

It is certainly an ego boost to be considered enough of an expert in your field to be called as an expert witness, and some people have made successful careers of it. If you do make a career of being an expert witness, however, you cannot justify being an expert if you do not continually upgrade your expertise through industry experience. In any case, whether you are an expert, or whether your testimony is acceptable, is ultimately up to the court.

If you are called to be an expert witness and agree to the job, you do not really need to know the legal ins and outs of the Daubert challenge (or any other challenge); that is the attorney's job. The best plan is to know your subject matter better than anyone else and to be completely firm in your opinions and conclusions. If there is a challenge, do not take it personally. More often than not, the challenge has more to do with the methodology used in coming to your conclusions or to the science itself. To be prepared, it is best to keep detailed notes of everything you read and every step you take in coming to your opinions.

73.7 FURTHER READING

Computer Fraud and Abuse Act of 1986 (amended 1994, 1996, and 2001).

United States Department of Justice, Computer Crime & Intellectual Property Section, Scott Eltringham, editor in chief. Prosecuting Computer Crime, www.usdoj.gov/criminal/cybercrime/ccmanual/index.html.

73.8 NOTES