Wednesday, December 2, 2015

The Value of Expert Witness-Attorney Relationships

December 2, 2015

The Value of Expert Witness-Attorney Relationships

The term “expert witness” may get tossed around a little more than it should.  Since leaving law enforcement, I can attest to the fact that I’ve seen so-called “experts” of all shapes and sizes.  Some are very professional and knowledgeable and some just want to call themselves an “expert” in something to boost their resume (and no doubt their billing rate).   

But experts are not restricted to the private sector.  Indeed, my first designations as an expert were through repeated work and testimony involved in law enforcement and criminal investigations.  While the procedure of qualifying an expert through appropriate questioning, voir dire and thorough documentation has been written about extensively and ruled on by the courts, what is less often brought to light is the importance of the relationship between the expert witness and the attorney(s) involved in the case. 

There are good experts and bad experts, just like there are good attorneys and bad attorneys.  I’ve worked with both kinds.  This isn’t an insult to anyone in the legal profession, it’s just a simple fact.  In any discipline you will find people who are professional, competent, prepared and educated and those who are not.  In my experience, the attorneys who take the time to thoroughly prepare for trial by extensive interviewing of the client, the expert, any and all witnesses and careful review of the evidence and how it relates to the law are by far the best to work with.  Sadly, this is the exception rather than the norm.  

Working with a competent, professional attorney can make the expert’s job much more effective and serve the client more fully.  And when the case is concluded, that’s really what we all want – for the client (whether the client is society or an individual) to be well-served by our efforts.  We can’t dictate the outcome, we can only strive to put forth the best case possible and hope the outcome reflects the truth.  So what should an effective expert-attorney relationship look like?  Here’s a few things I’ve learned so far:

1)      Thoroughly research your expert witnesses and interview them before engaging their services.  Factors that should be considered include: do they have experience testifying in jury trials, do they have appropriate credentials for the job, do they have the requisite knowledge, skills & abilities and can they articulate what may be very technical testimony in terms a lay-person can understand.  If the answer is no to any of these, it may be a clue to keep shopping… even if it costs more.

2)      Constant communication with experts is vital.  Waiting until a day or two before trial to reach out to your expert to solidify their findings and testimony is not acceptable.  This rings especially true for attorneys in the public sector (prosecutors) when their expert is a law enforcement investigator.

3)      Educate yourself about the expert’s findings and testimony.  Do you know the difference between SMS, MMS and iMessage text messages?  Do you know why certain information cannot be obtained from Apple devices vs. Android devices?  Do you know what types of information is retrievable and what is not from the unallocated space of a hard drive?  While your expert is the actual SME on these topics, questioning them at trial or deposition with a decent background of knowledge will help the testimony go smoother and help the finder of fact understand things better.  It will also show opposing counsel that you know what you’re talking about.  You’ll find most experts are happy to help educate you and the more educated you are about specific topics that may present themselves in legal matters, the more effective you’ll be over time.

4)      Review your expert’s testimony before trial or deposition.  I know this may seem a “no-brainer” to most litigators, but speaking from the other side of the witness stand, I can honestly say that about 65% of the attorneys I’ve worked with in the past have actually done this.  It’s a horrible feeling for your expert to take the stand and not have any idea what you’re going to ask, so please do the expert and the client a favor and review these things before court.

Positive, productive relationships between attorneys and experts are not only important, but they’re always a work-in-progress.  I have two very good attorney friends – one prosecutor and one defense attorney – with whom I stay in regular contact, whether we have a case together or not.  It’s not just a quid-pro-quo service-oriented relationship.  It’s a symbiotic relationship based on mutual respect and understanding.  They know I’m the SME when it comes to electronic investigation and digital forensics.  I know I’m not an attorney or a legal expert.  I’ve known these attorneys for years and they both refer me to other attorneys because of this relationship.  Simply put, it’s more than just business.

I’ll wrap this up with a note about the charlatans.  Regular readers of this blog probably know very well my stance on certification vs. experience, but the note about charlatans goes way beyond that.  I was in a professional association meeting earlier this year during which another member extolled the fact that he has a 25-page curriculum vitae and is a qualified “expert” on everything from handwriting analysis to accident reconstruction.  This irritated me because by professing he’s an “expert” in multiple disciplines for which he may not have any formal training, experience or real knowledge, he devalues us all who do.  In my experience, true experts specialize in one or two disciplines and hone their knowledge and skills over time.  Blowhards just want another feather in their cap to increase their billable rate.

Bottom line, it’s up to you to choose an appropriate expert for your case.  Research them, talk to them and fully vet them.  You won’t regret the work on the front-end and the value the right expert can add to your case could very well make the difference between winning and losing.

Patrick J. Siewert, SCERS, BCERT, LCE
Principal Consultant
Professional Digital Forensic Consulting, LLC
(Virginia DCJS #11-14869)
Based in Richmond, Virginia
Available Globally

We Find the Truth for a Living!

About the Author:
Patrick Siewert is the Principal Consultant of Pro Digital Forensic Consulting, based in Richmond, Virginia.  In 15 years of law enforcement, he investigated hundreds of high-tech crimes, incorporating digital forensics into the investigations, and was responsible for investigating some of the highest jury and plea bargain child exploitation cases in Virginia court history.  A graduate of both SCERS, BCERT, the Reid School of Interview & Interrogation and various online investigation schools (among others), Siewert continues to hone his digital forensic expertise in the private sector while growing his consulting & investigation business marketed toward litigators, professional investigators and corporations.
Twitter: @ProDigital4n6