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.
Author:
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.
