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.

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.

Email:  ProDigitalConsulting@gmail.com

Web: www.ProDigital4n6.com

Twitter: @ProDigital4n6

5 Reasons Why You Need a Digital Forensic Examiner

 

April 29, 2015

5 Reasons Why You Need a Digital Forensic Examiner:

Lists are all over these blogs, aren’t they?  But I bet you haven’t seen the top 5 reasons you need to hire a digital forensic examiner!  Not to be outdone, we’ll try to keep it to only five:

1)     Data is everywhere

Think about all the digital devices you own and use.  Chances are, as this graphic shows, you probably use your handheld portable device(s) in the morning, transition to laptop/desktop computer(s) during work hours, then go back to mobile with heavy use of tablets during the evening hours (because you and your partner don’t want to watch the same TV shows).

This graphic doesn’t even take into account the internet of things (IOT) and cars with constant connectivity and GPS.  So the bottom line is, virtually everything you do during the day will involve a digital device on some level and leave a digital footprint.  That data is stored on those devices and if you’re involved in some sort of dispute, accident, encounter, etc. that may lead to legal action down the road, you’re going to want a trained digital forensic expert to acquire, analyze and report that data for you. 

2)     Data breaches affect everyone

In the past year or so, we’ve seen dozens of high-profile data breaches occur in the private commercial and government sectors.  Sony, Target, eBay & Anthem, just to name a few.  And no one has been immune from the spoliation of this data, even the rich & famous (i.e., Ben Affleck & Amy Pascal).  But for everyday consumers like us, it means that our personal information could be shared with unsavory types, so whether you’re hiring a digital forensic examiner yourself or your bank is hiring one to help find out what happened and by whom, it does affect you

3)     Chances are, you’ll be involved in litigation at some point

It’s a fact that the U.S. houses roughly 50% of the world’s attorneys and attorneys make money by handling legal matters.  Not all legal matters are contested, but when they are, you want the data to show the truth.  And if you believe #1 (data is everywhere), the likelihood that you will not only be involved in some sort of contested litigation, but that that litigation will likely involve retrieving & reporting data that is pertinent to your case in a verifiable, forensically sound & virtually airtight manner is very real.  From divorces to child custody to distracted driving personal injury to criminal cases, the ubiquitous nature of the devices we carry and the data (i.e., evidence) they store cannot be denied.

4)     Your IT guy probably doesn’t know squat about Digital Forensics

Information Technology (IT) is a huge field.  It encompasses everyone from help desk agents to information security officers and everyone in between.  Generally, when we think about IT, we think of the computer geek; the guy we call when we can’t access our email, when the computer “broke”, when our company-owned phone is acting funny or some other every day run-of-the-mill problem.  They’re good at that stuff and the information security guys are good at setting up networks and systems to prevent data breaches, but generally none of them are trained adequately to secure digital evidence, forensically acquire that evidence, analyze the evidence or testify about the evidence and the procedures they took.  These skills require special training and experience.  Do IT folks have access to it?  Yes.  Do most of them take this training? No.  Call a professional.

5)     The Police can’t do it all

Cybercrime & electronically-facilitated crime is no doubt on the rise.  When we get calls from potential clients stating they’ve been hacked, we refer them to the police because computer trespass and theft of personal information is a crime, but most of the time, they call back a couple weeks later for our help.  The police, especially local police, don’t have the resources to investigate, analyze data and report as to what may have happened.  And hacking is just one example.  In a day & age when everyone carries a micro-computer with GPS, a microphone, camera and telephone in their pocket, which tracks their moves, the value of the evidence that those devices store cannot be understated.  Unfortunately, along with being involved in litigation, you’ll probably also be the victim of a crime at some point.  If the police don’t have the resources to adequately investigate the incident, it may be worth it to call someone who does!

So there’s our list.  If nothing else, we hope this serves to educate just some of the reasons why you may need a digital forensic examiner on speed-dial.  Is a digital forensic examiner someone you need every day?  No.  But much like your car mechanic, your exterminator and your lawyer, you sure want to know how to contact a good one when the time comes! 

Did we mention our contact information is below?

Author:

Patrick J. Siewert, SCERS, BCERT, LCE

Principal Consultant

Professional Digital Forensic Consulting, LLC

Based in Richmond, Virginia

Available Globally

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 and BCERT (among others), Siewert continues to hone his digital forensic expertise in the private sector while growing his consulting business marketed toward litigators, professional investigators and corporations.

Email:  ProDigitalConsulting@gmail.com

Web: www.ProDigital4n6.com

Twitter: ProDigital4n6

Probable Cause: As Good as it Gets

April 23, 2015

Probable Cause: As Good as it Gets

Recently, I had the honor of teaching a 3-day in-service course at the police academy for a group of new investigators.  While some of the participants had a degree of investigative experience, they still found some value in the course, especially with regard to the 4^th Amendment and Search & Seizure updates & refreshers.  We spent a good chunk of time talking about Probable Cause (P.C.) and how establishing probable cause for search warrants and arrests is key to not only getting the warrant, but to having a rock-solid case overall.  I made the point that your case never looks better than at the P.C. state.  This took some explaining for the class participants, so I figured this concept could also use some wider elaboration.

Good looking things all over

When brainstorming about this article, I thought about all of the other instances in society when things don’t ever look as good as they do at that golden moment.  Take a relationship, for instance:  Boy meets girl, boy and girl are attracted to each other, chemistry develops and, within a couple of weeks, everyone is on cloud nine!  Then, the inevitable physical encounter happens and it all goes downhill from there.  Sure, there are peaks and valleys (including marriage, depending on your point of view), but that relationship doesn’t ever look as good as it does when the butterflies are in your stomach and the tension is building and everything your partner says or does is gold! 

Draw the analogy out another step… When you buy a new car, (even if it’s used, it’s still new to you) that car never drives better, smells better or looks better than that first week you own it.  You’ll even find reasons to drive it, taking the long way home from work or the grocery store.  Then that first car payment bill hits and it’s all downhill from there!  Maintenance, mechanical issues, insurance bills and monthly payment… it all just gets to be a grind and, after about another year, you just want a new car again!  I guess this is where leasing companies find their niche.

What does this have to do with my investigations?

The same philosophy and practice is true at the micro level in your cases.  Think about it – you work hard to build your case.  You develop informants, gather evidence, conduct surveillance, investigate your target’s background and write reports documenting all of your findings.  Then, you finally have that moment when you’re ready to pull the proverbial trigger and apply for your search warrant.  You write up your P.C. statement and get it approved by your supervisor and take it to the judge/magistrate and everything is golden!  Your case probably just got the best it’s ever going to get. 

Probable Cause represents a legal requirement that something illegal probably happened and the target of your investigation probably did it.  There are no absolutes about any of this, despite your hard work, diligent gathering of evidence, time invested, etc.  Probable Cause also represents the stage at which all of your evidence is in the light most favorable to your case – it never looks better.  Virtually no one has picked over the facts yet and no one has scrutinized your work.  Trust me, it’s coming!  Once the prosecutor and the defense attorney get ahold of your reports, affidavits, statements & other evidence, your case will be picked apart piece by piece and scrutinized to extreme levels.  It goes without saying (but I will anyway) that the more important the case, the more this is likely to happen.  The problem is, you may not know how important your case is until after you’ve established probable cause, so it is fully incumbent upon the investigator to keep an open mind and make sure all of the details are taken care of in all cases, otherwise we risk falling into complacency and bad patterns.

Many important cases require multiple warrants and have multiple targets.  When I say your case never looks better than it does at the P.C. stage, that doesn’t mean that it can’t look that good again, such as application for a subsequent search warrant.  It simply means that at that point, your evidence looks the best way it can for any audience.  After motion hearings have been had and plea bargains are discussed, the inevitable holes in your case start to shine some light on the overall facts. 

Begin with the end in mind

Before I left full-time police work and launched my business, I consulted my brother, a career entrepreneur & businessman.  I asked him to refer me to any resources that might help in my new business endeavors.  He recommended The 7 Habits of Highly Effective People by Stephen Covey.  I scoffed at first under the impression that Covey was some sort of cultish quack, but I decided to keep an open mind.  I listened to the book on tape (I always fall asleep reading books) and I loved it.  One of the 7 habits: Begin with the end in mind. 

Beginning with the end in mind as an investigator or digital forensic examiner is more of an abstract concept.  As I said before, it’s vital to go into any investigation with an open mind, but investigators in particular should have, at the very least, the end of successful case closure in mind. You will find the bad guy, you will get the evidence you need, you will establish more than probable cause and you will do good work repeatedly.

Begin with the mindset that you’ll find the truth of the matter.  Begin with the mindset that the evidence will lead you to the facts.  Begin with the mindset that, when you develop probable cause, your evidence will be air tight (or as much as possible).  And don’t forget the victims of the crime(s) you’re investigating – they’re the ones you’re out there to help.

Author:

Patrick J. Siewert, SCERS, BCERT, LCE

Principal Consultant

Professional Digital Forensic Consulting, LLC

Based in Richmond, Virginia

Available Globally

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 and BCERT (among others), Siewert continues to hone his digital forensic expertise in the private sector while growing his consulting business marketed toward litigators, professional investigators and corporations.

Email:  ProDigitalConsulting@gmail.com

Web: www.ProDigital4n6.com

Twitter: ProDigital4n6