Articles Posted in Trial Strategy

In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I’ve read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest….

3. Documents Sent Since at deposition he will need to provide a list of all materials that he used and that helped in forming his opinion, you may wish to cover the waterfront and send him everything. When boxes and boxes of materials arrive, he may very well be overwhelmed. Give him some guidance by prioritizing it. I always start with the complaint and get down pat the cast of characters in the case, both individuals and entities. Discuss the allegations of who did what to whom, and when, and guide him to the pertinent documentation on both sides. He needs to understand your opponent’s contentions and the bases for them if he is to defend his own and, hopefully, yours. Make sure the deposition transcripts have the exhibits attached or that your expert knows where to locate them. I’ve run up needless billable hours searching for documents mentioned in deposition transcripts, but not among those sent to me. Discuss with him the reading materials that he has obtained on his own and ask to see them, if practicable. Make sure that he understands the rules of discovery before allowing him to seek advice from his own sources, people or documents. These sources may be invaluable but should first have your approval.

4. Reports Don’t be shy about offering your suggestions after reviewing a first draft of a report. A good expert has (or should have) an ability to see that this report may be instrumental to the case and be willing to make necessary changes or to opine further on stated points without compromising his independent conclusions. In making your suggestions, it is a good idea to preface them with the words, “If you agree. Ö”

5. Preparation for Deposition and/or Trial Meet with him the day before a trial or deposition to go over all of the points he will make as well as to prepare him for topics that you expect will be asked. You don’t want to be surprised at deposition by any of his answers. Meeting on the day before also allows him time to run through in his head all of his conclusions and bases for them and to review again, alone in his hotel room, any discussions you had in preparations that day. Then have him arrive fresh in the morning, early enough for any last-minute conferring with you.

6. Attitude This is the most important of all, at least to me. Make him feel he is part of the team and not a “hired gun.” Reputable experts bridle at that term and to any vibes they get that they are being thought of that way. Introduce him to the other lawyers on your side and to your client, if you deem it wise. When he is in your office, treat him as you would a client, not as a vendor. If you retain the right person, he is a professional and expects to be treated as one. But while he may be on the team, you are the team captain, and he should not be attempting to try your case for you. If you see tendencies that way on his part, diplomatically suggest that there are legal reasons why you do what you do but that you look to his contributions to those aspects of the case for which you retained him. With a positive attitude on both sides and a clear understanding of his perspective, he should advance your case and help in bringing about a successful result.

Read more here.

In Interventional Cardiology Expert Witnesses: Essentials for Attorneys, Dr. Burton Bentley writes that “given the widespread prevalence of heart disease in the US population, issues related to cardiology occur in countless medical negligence cases. Consequently, in the realm of medical expert witnesses, the Interventional Cardiology expert witness is King.”

Interventional Cardiology is a subspecialty of cardiology relying upon highly specialized cardiac procedures to diagnose and treat coronary artery disease. Cardiologists who employ these techniques to intervene in the course of coronary artery disease are known as Interventional Cardiologists. Since Interventional Cardiologists have expertise in both the diagnosis and interventional treatment of cardiac disease, issues addressed by Interventional Cardiology expert witnesses may focus on standard of care, breach, and/or harm. Interventional Cardiology experts also opine upon standard practices involving billing, compliance, resource utilization, and observation v. admission status.

Standards of care relate to the principles, practice, and procedures of Interventional Cardiology. The most frequent Interventional Cardiology procedure is angioplasty, also known as Percutaneous Coronary Intervention, or PCI. During PCI, an Interventional Cardiologist inserts a catheter into an artery and then threads the catheter to the level of the heart. The target artery is one or more coronary arteries perfusing the heart. The Interventional Cardiologist monitors the location of the catheter by injecting dye and viewing real-time images during the procedure. When a coronary artery is determined to have significant narrowing due to atherosclerosis (plaque), the Interventional Cardiologist will perform an “angioplasty”, literally reshaping the interior of the blood vessel. The angioplasty catheter uses a tiny balloon to press plaque against the luminal walls of the artery, effectively opening the internal diameter and improving blood flow. In 70% of angioplasty procedures, the Interventional Cardiologist will also deploy a stent. Stents are tiny metal tubes that remain in place to permanently reinforce the artery wall.

The same PCI techniques of vascular entry and guidewire insertion form the foundation for nearly all Interventional Cardiology procedures. Other procedures include:
Atherectomy: The use of tiny devices such as burrs or lasers to physically remove plaque from coronary arteries.
Balloon Valvuloplasty: The use of balloon catheters to physically open narrow heart valves (e.g. aortic stenosis).
Percutaneous Valve Repair: The use of specially equipped catheters to repair abnormal heart valves.
Transcatheter Aortic Valve Replacement (TAVR): TAVR is a revolutionary non-surgical treatment for aortic stenosis. During TAVR, the Interventional Cardiologist deploys a prosthetic aortic valve that is instantly deployed over the patient’s native valve. The native valve is entirely displaced while the new valve functions in its place.

The most common standard of care allegations include procedural delays, particularly during the treatment of acute myocardial infarction. Other allegations may involve procedural complications such as hemorrhage (e.g. hematoma or retroperitoneal hemorrhage), vessel rupture, nerve injury, device malfunction, embolism, and stroke. Given the complexity of interventional cardiology procedures, only a Board-Certified, full-time practicing Interventional Cardiology expert witness can opine upon the applicable standard of care.

In additional to opining on standard of care, an Interventional Cardiology expert witness is often required to address causation. Causation arguments may arise when an Interventional Cardiologist is alleged to have acted negligently. In other words, did the alleged malpractice result in harm? Interventional Cardiology experts also evaluate causation when a patient suffers a deprivation of care by not being referred to an Interventional Cardiologist in a timely manner. For example, allegations may arise when a primary care provider fails to refer a patient with chest pain, or when an Emergency Medicine specialist delays admission to the cardiac catheterization lab. Such situations mandate meticulous analysis, and only a credible and independent Interventional Cardiology expert witness can connect the dots.

Since Interventional Cardiology experts are also Cardiologists, IC experts are also called upon to determine the existence, nature, extent, and prognosis of cardiac harm. For example, when a patient suffers a myocardial infarction (i.e. heart attack), what is the extent of the injury and how will it impact the patient’s health? Investigating the status and degree of cardiac harm is an essential strategic element is many cases. Once again, a skilled and impartial Interventional Cardiology expert witness will be the key to your case’s success.

In countless areas of medical litigation, from billing and compliance to percutaneous coronary angioplasty, the Interventional Cardiology expert witness plays a pivotal and irreplaceable role. To succeed in your next cardiac case, take the time to properly understand and utilize the knowledge of this mission-critical expert.

ELITE MEDICAL EXPERTS is a physician-based firm specializing exclusively in medical litigation.

From Stanford to Yale, and from every medical and surgical specialty, ELITE MEDICAL EXPERTS secures leading university experts for medical litigation. We work with attorneys for both plaintiff and defense, as well as medical malpractice insurers, to secure the leading medical experts from the nation’s top academic institutions.

In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I’ve read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest.

1. Selection Process Start your search early. I’m always amazed when I receive frantic phone calls from attorneys saying they must designate an expert that day or the next day. Allow time to find an expert, to connect, (considering the usual telephone tag delays), to chat, and to get a feeling for the chemistry between you, and to briefly discuss your case. Ask the potential expert’s experience in the course of his career with matters germane to your case, and ask whether he has ever testified on anything similar. Get his general feelings about your case while keeping in mind that he now has only a thumbnail sketch of the issues involved. Tell him up front your time constraints, if and when a written report is required, and the dates of trial and probable deposition. Make sure he has the time to devote to your case. You don’t want him “squeezing you in” between other pressing cases. Discuss fees and retainers. Ask him to fax you his most recent CV and a list of prior testimony, along with the names and firms of attorneys who have retained him. Check him out. If he’s smart, he’ll probably be looking you up in Martindale-Hubbell within minutes of getting off the phone. If not time- and expense-prohibitive, arrange a meeting either at your office or his. If he is going to come to you, make it clear that you will pay for his time and expenses. There may be experts who are willing to give up a day or more to meet with you for free, but they are not going to be the ones whose time is very valuable and thus probably not the ones you want. I’ve had attorneys who expected me to crisscross the country for an interview with no more compensation than an airline seat. I politely but firmly terminated those inquiries. The first hour of this expert’s time is usually free. After that the meter runs, as it does with lawyers.

2. After Retention Detail as much as possible the areas and questions upon which you are asking him to opine. Obviously, you cannot and should not tell him what his opinions are. After he has had a chance to review materials you have sent, you may certainly ask his opinions and, just as importantly, the bases for his opinions. Challenge him politely to defend them. Your opponent certainly will do so in deposition and at trial! Pick his brain and let him talk. I’ve had attorneys discover a whole new tack they may decide to take because of what they learned about how things really operate in my discipline. Now that you’ve retained him, all that he knows and has experienced is at your disposal. Take advantage of it.

Part 2 to follow. Read more here.

In Keeping Internet Searches to Yourself, internet guru, attorney and law librarian
Carole Levitt writes:

For those who are more and more concerned with privacy when researching on the Internet, here’s one of my ABA TECHSHOW tips: Consider using It enhances users’ privacy by not storing your search history, IP addresses or user agents, and not passing along your search words to the site you visit when you click on a link in the results list. But, what if you love using all of Google’s advanced search features/instructions (or Bing’s or Yahoo’s)? Well, you can still use them and protect your privacy if you precede your search with what DuckDuckGo calls a “bang,” which is an exclamation point and the first letter of the search engine where you want DuckDuckGo to submit your search. For example, to submit your search to Google and limit your results only to PDFs that have the name “carole levitt” as a phrase, your search would look like this:

!g “carole levitt” filetype:pdf

Carole Levitt (@CaroleLevitt) is President of Internet For Lawyers. A frequent speaker on topics such as investigative and legal research, Google search, social media research and legal ethics, Carole spoke at the TECHSHOW session “Bingoogleduckyahoo!”

For more tips like these, you can purchase her book, The Cybersleuth’s Guide to the Internet: Conducting Effective Free Investigative & Legal Research on the Web, 13th edition (2015) at:

In How To Select A Medical Expert Witness: Mission-Critical Steps for Success, medical malpractice expert witness Dr. Burton Bentley writes:

The expert witness is the foundation of any medical malpractice case. From analyzing the elements of negligence to testifying at deposition and trial, your strategic success depends upon competent medical insight. Given the pivotal role played by medical expert witnesses, it is surprising how often the search for an expert is left to chance. Choose incorrectly and you’ve made a common and costly mistake that may prove fatal to your case. Secure the right expert, however, and you’ll build a solid strategy and partnership from the outset. Rather than leaving the decision to chance, the following steps will immediately improve your chance of success:

Assure Board Certification
For medical malpractice cases, your expert must be Board Certified by the American Board of Medical Specialties (ABMS). Although other “boards” exist, only ABMS is universally recognized as the official certifying body governing all medical and surgical specialties. The key is to choose an expert whose ABMS certification and active practice identically match the issues in the case.

Know Your Expert
Perform a background check to learn about credentials, experience, prior testimony, and conflicts of interest. Confirm that your expert was in full-time clinical practice, with a spotless professional record, both before and during the time of the alleged negligence in the case. Before agreeing to proceed, speak with your expert to assure that he or she is a good match with your personal style and case requirements. Since the expert has not yet been formally retained, use the time to meet the expert rather than ask case-specific questions. Knowing that your professional relationship with an expert may span a period of years, invest the time to vet your candidates closely.

Avoid Referral Services
Expert witness referral services rely upon preexisting lists of professional experts. These services simply match the medical specialty required by your case (e.g. Cardiology) with a random expert (e.g. Cardiologist) from a predetermined list. Rather than hand-selecting unique experts with qualifications, interests, and expertise chosen for your specific case, referral services are really selling you a random name from a list of subscribing experts. Experts on referral lists typically have suboptimal credentials, advertise on the internet, and can be located without using a referral service at all. A better strategy is to rely upon established consulting firms, ideally staffed by physicians and nurses, who utilize their resources to locate and hand-vet specific experts uniquely suited for your case. Such experts are true experts, typically serving at the professorial level at major medical universities. Professors of Medicine and Surgery have top-tier credentials and never advertise their expert services. Since university experts are generally inaccessible to the public, you will require assistance in securing an ideal candidate for your case. Only trust reputable and recommended firms with established success working for both sides of the bar. Such firms utilize proven practices that respect the critical importance of transparency and discoverability.

Build a Winning Relationship
The key to winning your case is a rock-solid theory supported by an articulate expert. Start that relationship by relying upon your expert’s honest and independent interpretation of the medical facts. Provide all documents, theories, and questions that you wish, but then let the expert do the work of determining whether the facts support the requisite elements of negligence. If the expert’s opinion is positive, take the time to understand every facet, including strengths, weaknesses, and the likely theory of any opposing expert. If the opinion is negative – a common occurrence in randomly screened plaintiff cases – take a similar amount of time to understand the flaws in your case theory. Although the natural inclination is to feel disappointed, experienced attorneys recognize that a well-reasoned negative opinion saves vast amounts of money and time. When you can confidently rely upon your expert, any opinion holds tremendous value.

Bottom line: Maximize your return on investment and winning success by securing an optimal expert witness early in your case.

Dr. Bentley is the President and CEO of ELITE MEDICAL EXPERTS. With over twenty years of clinical experience, he has provided emergency care to over 60,000 patients. He is also the principal physician of Emergency Medicine Litigation Analysts, Inc., where Dr. Bentley has consulted upon countless claims of potential medical negligence for both plaintiff and defense.

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness
Avoid the Absolute Lawyers like absolute responses like “never,” “impossible” and “always” because they’re easy targets for attacking a witness’ credibility-even when those attacks are pretty silly.

I was once asked to demonstrate cross-examination at a computer forensics conference. The witness was an expert of renown and an unquestionably capable examiner. He brought his laptop running the forensic software he’d written (like I said, a serious expert). I sparred with the witness long enough to make him defensive (and a bit cocky), then gave him a thumb drive holding two simple text files. I asked him to calculate an MD5 hash for each. He glanced at the contents, saw that each contained my name and address, and quickly calculated identical MD5 hashes for the two. I asked him if, despite their different file names, the contents of the two files were identical. He said they were. I asked him if he was certain and tried to toss a little mud on his methodology to get him puffed up. The expert testified that he was certain the files were identical because they had matching hash values. I then had him explain how hashing was a technology central to his evidence authentication, deduplication, chain of custody, etc. I concluded by asking if he was as certain about the two files being identical as he was about the other opinions he’d expressed. He said he was, adding that it was impossible for the two to be different if they have matching hash values.

The hook was set.

I then asked the expert to pull the contents of the “identical” files into a hex editor, and I gave him the offset addresses of six places in the file where there were differences between them. He was floored to find the differences were real. I then wrote the names of the files on the board: 5h1t and 5h1n0la, and I ended my cross-examination noting that he apparently wasn’t expert enough to tell one from the other.[2]

All I’d done to set him up was append my name and address to tiny files engineered by Chinese researchers to demonstrate the feasibility of a MD5 hash collision. The testifying expert forgot the difference between a collision being computationally infeasible and impossible. MD5 hash collisions are real, but exceedingly rare. Never having seen a hash collision and knowing the gargantuan odds against ever seeing one, the expert was maneuvered by hubris into making a categorical statement he couldn’t defend and allowing his credibility to be tied to one point.

Expect the Unexpected As a trial lawyer, my credo was that even adverse witnesses could do my case some good. I began each cross-examination by getting adverse experts to stress the strengths of my case, sometimes to the point of their conceding things beyond their expertise. Medical doctors would corroborate liability facts, and engineering experts would concede my client was permanently disabled. I could do this because opposing counsel were loath to challenge their own witnesses’ expertise, and the witnesses weren’t prepped to expect the unexpected.

Even without pushing witnesses outside their expertise, I knew every expert could concede something about my case even if it were, “You would agree that my client’s computer was powered by electricity, correct?” If they fought me on everything, it underscored their bias and hurt their credibility.

The lesson: The witnesses making concessions were too sure of themselves to say, “I don’t know,” and the combative witnesses were too invested in the outcome to concede the obvious.

Know what’s out-of-bounds In most jury trials, the Court determines that there are matters that may not be disclosed to the jury. These may be a creature of statute, of common law or the consequence of a motion to exclude called a Motion in Limine. You need to know what’s out-of-bounds, and sometimes, counsel will forget to tell you. Always ask about excluded matters before you take the stand! Remember that the fact that certain evidence has been excluded may itself be something you can’t mention on the stand.

Occasionally, counsel for the party who sought to exclude the evidence will ask a question that necessitates mention of the excluded matter. This is called “opening the door;” but, don’t be too quick to enter. Let the court and the attorneys see that you are hesitant to respond so as to allow the lawyers an opportunity to seek guidance from the Court. You must carefully balance the Court’s intention to exclude the evidence against the obligation to answer a question that necessitates disclosure. Misjudgment can prompt a mistrial. Accordingly, do all you reasonably can to afford the Court and counsel an opportunity to resolve this before disclosing excluded matter.

Craig Ball Attorney and Forensic Technologist Certified Computer Forensic Examiner

In Getting The Full Value Of Economic Experts In IP Litigation: A Qualified Expert Is Key, attorney Devon Zastrow Newman of Schwabe, Williamson & Wyatt, P.C., writes:

A plaintiff’s claims in intellectual property litigation may take several forms, including assertion of claims of infringement of the IP right or loss of the plaintiff’s right to the IP through unlawful misappropriation (e.g., trade secret theft). To prevail, the plaintiff must establish three elements: the defendant’s breach of the IP right belonging to the plaintiff; the defendant’s breach damaged the plaintiff; and the measure of damages the plaintiff accrued as a direct cause of the defendant’s breach. An economic expert may be the key to establishing the third element.

When is an economic expert needed?

Expert witness testimony is necessary when a party must present evidence outside a juror’s common knowledge, which applies to nearly all (IP) cases. A technical expert explains the technology and whether it is infringed by the defendant. The plaintiff may use an economic expert to explain how economic damages occurred. The defendant’s economic expert, if any, will present an alternative view of the damages.

Most IP cases are litigated in federal court; thus, the expert’s testimony must be admissible under Federal Rules of Evidence 702 and 703. These rules require that the expert be qualified to testify about the subject matter and perform the analysis using qualified information he or she has personally reviewed. The expert must base his or her opinion on facts or data that are the type of information experts in the field would rely on to form an opinion. A party may challenge an expert’s testimony through a pre-trial motion if it fails to abide by FRE Rules 702 or 703. Challenges typically come in pre-trial motions to limit or preclude the testimony. Finally, the expert’s opinions must be relevant to the issues and help the jurors understand them.

Read more here.

Devon Zastrow Newman leads the Intellectual Property Litigation Group at Schwabe, Williamson & Wyatt, P.C. She focuses her practice on intellectual property and complex litigation, and has extensive experience representing patent and trademark owners in infringement actions.

In Legal Ethics Considerations for Lawyers’ Use of Cloud Computing Services, Internet For Lawyer’s Mark Rosch writes:

We often get questions about the security of “cloud computing” services like Google Apps and whether that security is tight enough for lawyers to use them.

Google Apps, for example, meets the security standards put in place for the online storage of government agencies’ information set out in the Federal Information Security Management Act of 2000 (FISMA 44 U.S.C. § 3541, et seq.).

Cloud computing and “Software as a Service” (SaaS) are two terms used to describe similar services. They allow you to access software, or store files, on computers that are not at your physical location or even in your physical control. defines cloud computing as:
Internet-based computing in which large groups of remote servers are networked so as to allow sharing of data-processing tasks, centralized data storage, and online access to computer services or resources.

Wikipedia defines SaaS as:
“Software as a service (SaaS, typically pronounced [sæs]), sometimes referred to as ‘on-demand software,’ is a software delivery model in which software and its associated data are hosted centrally (typically in the (Internet) cloud) and are typically accessed by users using a thin client, normally using a web browser over the Internet.”
Gmail and Flickr are examples of cloud computing or SaaS products because they give you access to e-mail software and message storage, and photo storage (respectively) on computers at a remote location.

In August 2012, the ABA House of Delegates adopted changes to the Model Rules of Professional Conduct dealing with the question of whether and how lawyers might deal with “confidentiality issues arising from technology.” The changes were suggested by the ABA Commission on Ethics 20/20 and were, “designed to give lawyers more guidance regarding their confidentiality- related obligations when using technology.”

So far, only a few State Bar Associations have issues formal ethics opinions on the questions however, they include (in reverse chronological order):
• Connecticut Bar Association Professional Ethics Committee Informal Opinion 2013-07 • Ohio State Bar Association Informal Advisory Opinion 2013-03 • Virginia State Bar Legal Ethics Opinion 1872 • The Florida Bar Opinion 12-03 • Maine Board of Bar Overseers Professional Ethics Commission Opinion 207 • State Bar of California Standing Committee on Professional Responsibility and Conduct: Formal Opinion 2012-184
Most of the opinions already mentioned in this article point to a lawyer’s duty to exercise “reasonable steps” to insure the confidentiality of their client’s information. Many of them also refer back to Arizona Opinion 05-04 which states that lawyers should:

• “take competent and reasonable steps to assure that the client’s confidences are not disclosed to third parties through theft or inadvertence. In addition, an attorney or law firm is obligated to take reasonable and competent steps to assure that the client’s electronic information is not lost or destroyed. In order to do that, an attorney must be competent to evaluate the nature of the potential threat to client electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end. An attorney who lacks or cannot reasonably obtain that competence is ethically required to retain an expert consultant who does have such competence.”

Conclusion • The reality of computer security requires machines connected to the Internet to be maintained and patched on a regular basis. It’s important for lawyers to know what security measures are practiced by whatever cloud service provider they are considering, as well as where and how often vendors back-up the information stored with their services, among other concerns. Regardless of whether lawyers are storing files “in the cloud” or on their office’s local network, they must make a “reasonable effort” to keep that information secure to insure that those computers are as protected as they can be.
• Originally posted 10/30/2011. Last updated 3/8/15.

As Vice President of Marketing for Internet For Lawyers (IFL), Mark Rosch is the developer and manager of the Internet For Lawyers web site. He is the Editor of IFL’s newsletter, and writes and speaks about legal technology for firms and also on how to use the Internet for research and for marketing. The Internet For Lawyers Internet Investigative Research Update blog keeps readers up to date with the latest free and low-cost investigative and background research resources freely available on the Internet. The blog also covers search engine search tips with a focus on Google and its features, functions and productivity tools.

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness
Don’t Be Jekyll and Hyde We communicate as much non-verbally as verbally, and it’s fascinating to watch how a witness’ body language and demeanor transform from direct to cross-examination. On direct, witnesses are forthcoming and helpful–their engagement and desire to please manifested in their words and physiognomy. On cross, they lean back, glowering, arms crossed, shifting in their seats, quarrelsome and evasive.

It’s hard not to appear defensive when you’re on the defensive, but stay attuned to your demeanor and body language, and don’t change demeanor between examiners-at least not without a whole lot of provocation.

Open up your posture, unclench your fists and wipe that peevish look off your face. Endeavor not to alter the pace or tone of your answers. Patience is a virtue, so don’t start jabbering just to fill an awkward silence. Be courteous and helpful. Yes, helpful. Of course, it’s not your role to assist the other side; but, being respectful and working cooperatively to move things along helps your side most. Some lawyers will work hard to get a rise out of you. Don’t be drawn in. When you show anger, you squander credibility.
There may be times when anger or umbrage is unavoidable, but be slow to burn. Ideally, the jury or the judge should be awed by your restraint and rooting for you to push back long before you do.

Stay above the Fray Nailing the bad guy isn’t the point-not for you. You are the digital translator, not the prosecutor. The evidence speaks through you, and justice demands you not omit or embellish. As an expert witness, you are not an advocate for either side. That’s the lawyers’ role. You are an advocate for your own findings and opinions. You can and should vigorously support and defend the skill behind and integrity of your forensic process, your reporting and the expert opinions you’ve drawn. Winning the case is not your objective. The only “win” for you is that the judge and jury listened to you, understood you and believed you.

Remember Who Matters Court proceedings aren’t about the lawyers. The lawyer for your side is already persuaded, and the other side’s lawyer isn’t going to come around. They don’t matter.
Court proceedings aren’t about you. Yes, you’re a technical wizard and you’ve worked very hard to uncover compelling evidence. But you don’t matter-check your ego at the door.
The only people in the courtroom who matter are the judge and jury. So, speak to them, look at them and help them understand. Of course, you’ll pay attention to the questioner while a question is asked; but orient yourself so that the jury can always see and hear you well, and endeavor to make eye contact with the jurors when giving longer answers. Be alert to cues from counsel, like questions that begin, “Please tell the jury….” That’s how lawyers remind you that you’re ignoring the most important people in the courtroom.

Couch your testimony in terms and analogies that judges and jurors understand. Never assume they know what you or the lawyers know about the evidence or that they come to court with any pre-existing technical expertise. Engage the jury with references to common experiences and accessible analogies like, “We’ve all seen the hard drive activity light on our computers flash when we aren’t doing anything. That may be an instance where the computer is shifting information from RAM to its memory swap file on the hard drive, like leaving ourselves a note.”

Don’t Quibble Judges and juries hate witnesses incapable of saying “yes” or “no.” A skilled cross examiner frames questions that sound like they can be answered simply, but are calculated to elicit quibbling from the witness. A skilled witness looks for opportunities to plainly respond “yes” or “no,” or something close:
“Yes, as a rule,”
“No, for the most part.”
“There are exceptions, but that’s true.”
“Not in my experience.”
Unless crucial to the case, let the lawyer chase the exceptions.

Craig Ball Attorney and Forensic Technologist Certified Computer Forensic Examiner

Attorney Craig Ball is a forensic technology expert witness. On his website, Ball in Your Court, he writes on his experience as an expert witness.

Becoming a Better Digital Forensics Witness
I love to testify-in court, at deposition, in declarations and affidavits-and I even like writing reports about my findings in forensic exams.

I love the challenge-the chance to mix it up with skilled interrogators, defend my opinions and help the decision makers hear what the electronic evidence tells us. There is a compelling human drama being played out in those bits and bytes, and computer forensic examiners are the fortunate few who get to tell the story. It’s our privilege to help the finders of fact understand the digital evidence.

This post is written for computer forensic examiners and outlines ways to become a more effective witness and avoid common pitfalls. But the advice offered applies as well to almost anyone who takes the stand.

It’s difficult for computer forensic examiners to hone their testimonial skills because it’s rare to be interrogated by a lawyer who understands what we are talking about. Most interrogators are working from a script. They know the first question to ask, but not the next or the one after that. Pushed off their path, they’re lost. Computer forensic examiners have it pretty easy on the stand. Computer-generated evidence still enjoys an aura of accuracy and objectivity, and the hyper-technical nature of digital forensics awes and intimidates the uninitiated. But, it won’t always be this way. Sooner or later, computer forensic examiners will square off against interrogators able to skillfully undermine ability and credibility. So, it behooves us to strive to be skilled witnesses.

The Trick to Being a Great Witness Novice witnesses think there’s a system they can follow to stay out of trouble on cross-examination, but no battle plan survives an encounter with the enemy. There are no “tricks” to testifying, except to prepare carefully, listen to the questions asked, answer the questions asked, stick to what you know and tell the truth. The corollaries are, don’t imagine you can “wing it,” don’t anticipate the question, don’t answer the question you think the examiner meant to ask, don’t overreach your expertise and don’t try to snow the lawyers on technical matters.

It’s All About Preparation Even brilliant, articulate and honest expert witnesses will perform poorly on the stand when they aren’t asked the right questions in the right way. Lawyers invest too little time preparing expert witnesses to present a compelling direct examination, and expert witnesses worry too much about cross-examination. Without a solid direct examination to lay out the key points, getting through cross-examination unscathed doesn’t count for much. There are many reasons why lawyers don’t spend enough time preparing expert witnesses: Lawyers and experts have demanding schedules, time spent with experts may be expensive and egos on both sides may not admit the need for preparation. Still, preparation for direct examination demands more than scripting a few questions and ad-libbing the rest.

The expert witness must help the lawyer understand what the digital evidence signifies and insure that the lawyer won’t stumble on the key terms and concepts. The lawyer must help the expert understand where the digital evidence fits into the overall theme of the case. Both must craft the flow and choreography of the direct examination, including what exhibits and demonstrative aids will be used and how to adapt when things don’t go according to plan (as when the court excludes an exhibit or demonstrative aid). There is no such thing as an over-prepared expert when it comes to direct examination.

Hypothetical Questions and Hearsay In U.S. jurisprudence, there are two principal advantages afforded an expert witness. First, an expert witness is permitted to answer hypothetical questions; that is, questions where the interrogator lays out various assumptions and seeks the witness’ opinions based on those assumptions. Second, an expert witness is permitted to rely upon hearsay evidence when it’s the sort of information on which experts in the field customarily rely.

Some cross-examiners take their hypotheticals too far and require you to assume unreasonable facts. In that event, push back. Point out that you can’t express an opinion based on so implausible an assumption. Don’t be reluctant to say, “I saw no evidence to support that assumption.” Be wary of being pushed into offering opinions on hypotheticals incorporating elements outside your expertise and experience.

Just because you can rely upon hearsay doesn’t mean that you should. Unassailable opinions are constructed from reliable evidence. Try not to build your testimony on assumptions that may buckle. Always ask yourself, “Why do I take this to be true?”

Compound Questions A cross-examiner may pose two questions as one, such that an answer to one sounds like an answer to both. When this happens, the lawyer who handled direct examination should object to the compound question; but, if the lawyer doesn’t object, it’s up to you to be alert and keep the record clear. Seek clarification of the question (e.g., “Are you asking me whether I hashed the images or if the hash values matched?”) or address each part separately (e.g., “Yes, I hashed the images, but the hash values did not match due to damaged sectors on the drive.”).

May I Explain?
Effective cross-examiners use classic techniques to control witnesses. They pose leading questions that suggest the desired reply. They avoid repetition of damaging testimony. They ask only questions to which they already know the answer. And they seek to confine witnesses to “yes” or “no” responses to keep witnesses from explaining their answers. Skilled cross-examiners do this so well, you will be like a horse in harness. But skilled cross-examiners are rare. You are more likely to face cross-examiners who will try to bully you into “yes” or “no” responses to questions that can’t be answered that way.

You have a secret weapon when this happens. You can ask, “May I explain please?” Opposing counsel hate that. They want to scream, “No, just say ‘yes’ or ‘no!'” But, they recognize that if you’ve been candid and cooperative, refusing to let you explain will make them look bad to the judge and jury. Like any secret weapon, it’s not very effective once the secret’s out. So, you can only do this once (or twice). Don’t waste it.

Craig Ball Attorney and Forensic Technologist Certified Computer Forensic Examiner