Project Management

Questions to consider before agreeing to be an expert witness

Before agreeing to be an expert witness, IT consultant Chip Camden says there are five questions you should ask yourself to determine whether you're cut out for the responsibility.

If your consulting shingle has been hanging out for any length of time, you've probably been approached on at least one occasion by a lawyer in search of an expert witness. The IT industry in particular, being such a new field, impacts business relationships in ways for which existing legal precedent provides no ready answers. Consequently, litigants often call on expert witnesses to testify concerning compliance with industry standards and recommended practices, among other things.

Being tapped on the shoulder as a potential expert by a high-priced law firm can inflate your ego, and chances are you'd be able to pull down a juicy rate for that kind of work. But before you accept, make sure you're cut out for it by asking yourself the following questions:

Are you qualified? This requires more than just selling yourself to the lawyers. To act as an expert witness requires specific, verifiable qualifications. That's not to say you must possess degrees or certifications -- relevant experience in the field will suffice. But you don't want to stretch your expertise, under penalty of perjury. Furthermore, even if you legally qualify as an expert, the other side's lawyers will actively dig through your published past looking for anything that might minimize your authority on the subject. Any little exaggeration will come back to bite you. This is one gig for which "fake it 'til you make it" will almost certainly lead to a most spectacular crash and burn. Do you have the time? Not only will you need to devote however many hours it takes to analyzing the evidence placed before you, but you'll probably have to do that on a tight schedule. The court generally specifies deadlines for the introduction of expert testimony, and getting those deadlines moved can be difficult if not impossible. If you'll be required to testify in court, then you'll have to keep potential court dates free on your schedule -- and deal with the inevitable continuances. Do you have any conflict of interest? If you have an interest in the outcome of the case, then the objectivity of your expert testimony might be suspect. That doesn't mean, however, that any prior relationship with the litigants automatically disqualifies you. On the contrary, I've testified in more than one case in which one of the parties was either a former client of mine, or a customer of one of my clients. You must disclose that prior relationship up front, and clearly demonstrate that your methods of evaluation will not be influenced by the desire for any particular result. Can you keep a secret? Your liberty to discuss the details of the case outside your sworn testimony with anyone except the lawyers for the side that hired you will be severely curtailed. As a consultant, you might be used to working under a Non-Disclosure Agreement (NDA), but those agreements generally don't prevent you from (for example) blogging about the kinds of things you're working on in general terms. To become an expert witness means signing up for an NDA on steroids. Even if the court doesn't direct total silence on your part, your client's lawyers will likely require it, at least until the case is settled or decided and all appeals are exhausted. Do you like working with lawyers? They certainly represent a distinct breed of client. You'll inevitably find yourself torn between strict objectivity and the hunt for the evidence that the lawyers hope that you'll find. Lawyers can be very persuasive (it's what they do), yet even they will tell you that you must not testify to anything solely because it helps their case; if you do, the other side will rip you to shreds. Nevertheless, you'll often feel like you're being interrogated by the very people who are handing you money for your responses. It's difficult to maintain your objectivity under that pressure, but you must at all costs.

Despite the pressures, testifying as an expert can be very rewarding. I've found the subject matter enormously interesting, especially when it may involve setting new legal precedent. As with any extremely rigorous work, it hones your skills and gives you new perspectives on our industry. Once your testimony has become a matter of public record, it can provide a big boost to your reputation. It certainly doesn't do any harm to the ole resume. I'd recommend it -- provided you're ready to bear the responsibilities it entails.

About

Chip Camden has been programming since 1978, and he's still not done. An independent consultant since 1991, Chip specializes in software development tools, languages, and migration to new technology. Besides writing for TechRepublic's IT Consultant b...

33 comments
herlizness
herlizness

Chip, your questions are the right ones but I don't think the prospective expert witness need worry too much about them. Any competent attorney will qualify their prospective expert by asking those questions very diligently and reaching their own conclusions before proffering your testimony to the court.

Jay_H
Jay_H

Some more thoughts: Are you prepared (including emotionally) to handle a lawyer whose job it is to make you look like an idiot? Are you prepared to measure every one of your words for possible misinterpretation? Are you comfortable with highly adversarial situations? Many people who are actual experts are not cut out for this kind of task.

JamesRL
JamesRL

In my high school days, I worked at a local 7-11. I was robbed by two guys at 4 AM. Luckily, I didn't believe the hand in hoodie meant he really had a knife, so I kept calm. 7-11 policy then, and probably still is, full co-operation. Resist, and find another job. But we had a time lock safe, so the max they could get was $40 (in the late 70s). They did steal some cartons of cigarettes worth more than that. They didn't steal my wallet, I had $100 in cash. I did meet briefly with the crown attorney before the trial. His mom was my grade two teacher. I was first up. At first the defendents looked different than I thought, but the defense had really done a number on them. It took me a moment, but I was certain once I had a good look. Then the crown pulled out some of the items they had with them and it was a walk in the park. Hint to potential felons; don't wear designer glasses, school hoodies with not so popular designs, or put the money in a school crested gym bag. I got to watch the other witnesses, from the two stores they robbed earlier. Those witnesses had been scared and unsure. I'm pretty sure my testamony made the case. As for compensation, my employer paid me the hourly wage for all the time spent in court. Minimum wage. But I was going to be there in any case.

TelcoChuck
TelcoChuck

And the State's attorney sure had a sour look when I answered one of her questions totally honestly. But the defendant was convicted, so all was Ok at the end.

oldbaritone
oldbaritone

I haven't been an expert witness, but I have been a town magistrate, and I've seen the things lawyers do, firsthand. Probably the most amazing was during a jury trial. While the jury was in the courtroom, anyone would swear that the two attorneys were stricken with bloodlust, two pitbulls in a ring trying to tear out each other's throat. As soon as the jury was sequestered for deliberations behind closed doors, one lawyer looked at the other and said "Hey Gary, I have a 7:30 tee time tomorrow at the club, and I need a fourth. Want to play?" It's sad that our English language has an inadequacy - about the only word I have been able to find to describe courtroom proceedings is a "game." It's a very serious game, with a myriad of rules. Attorneys are thoroughly trained in the many aspects of their game, and they play to win. But then at the end of the day, they "take off their game face" and become totally different personalities. Witnesses giving testimony need to remember that. It may seem like a personal attack at you, but in reality the attorney is just doing their job trying to convince the judge or jury that your testimony should be questioned rather than accepted. And after you step out of the witness box, they harbor no ill will toward you. Win or lose, it's a game to them, and their win/loss record is their score card. And tomorrow is another day. But attorneys always play to win. And if you're considering a gig as an expert witness, go to a nearby court and sit through a couple of trials, preferably with expert testimony. (Bring a book; there are a lot of "lulls" in the action.) Watch what happens; imagine yourself as the person in the witness box, and decide whether you could endure what you see happening. And remember that if you're called to testify, you'll spend a lot of time sitting and waiting. And many places don't allow electronic devices, so you won't be able to bring your laptop to work on something else during those lulls. Understand what the gig is, before you sign up for it. And don't take it personally. And to others who are in a legal situation - you need an attorney, period. It may be a game, but the attorney understands the rules better than you, That's why you hire them. If you try to go it alone, you will rapidly learn that you are a rank amateur playing against a polished team of professionals - and it will be easy to predict the result. You lose.

HAL 9000
HAL 9000

On far too many occasions for my liking. Perhaps the most telling thing here is the last one [i]Do you like working with lawyers?[/i] Though personally I would be looking at something more important [b]Can you stand getting up in Court and performing?[/b] That is actually what happens in every case that i have been involved in. You have one side wanting you to stretch the Facts to suit their ends and the other side trying to tear you to shreds with the Judge being stuck in the middle not fully understanding what it is that is happening in front of him. The money is pathetic for what you have to do and honestly it's not worth the time and effort involved. The Legal People will insist that you are being well paid when in fact the hourly rate is something dramatically different and they will have no difficulty in forcing you to attend if it suits their ends or that is their preferred way to work. You also need to understand that the person attempting to rip you to shreds today will be the same person insisting that you know it all and are to be believed without Cross Examination a week latter. What makes things worse is do 2 or 3 of these and impress the Legal People and they start demanding to have you as their Expert Witness and it really cuts into your Productive Time. ;) Col

Sterling chip Camden
Sterling chip Camden

Were you the most qualified person for the job? Did you get tripped up on anything?

Sterling chip Camden
Sterling chip Camden

They'll qualify you to do the job for which they intend to use you. If that amounts to throwing you like a slab of meat to the wolves in order to distract them, that will do. I'm exaggerating a bit, but the point is that just because you may be useful to your client doesn't mean it's the kind of work you will want to do.

apotheon
apotheon

Not all attorneys are competent, y'know -- just as not all IT professionals are competent, not all plumbers are competent, and almost no legislators are competent.

Sterling chip Camden
Sterling chip Camden

Just reading the polite response characterizing your background as irrelevant can really raise your blood pressure, never mind the face-to-face encounters.

ps2goat
ps2goat

The conviction is only ok if he really was guilty!

HAL 9000
HAL 9000

I still remember one case where I walked in and thought I was in the middle of a War Zone. Every question that the Plaintiff's Barrister asked got jumped on by the Judge and comments about Feelings are not important here we deal in fact. Apparently latter I found out that the Barrister in question didn't normally do Real Law mostly Family Law which is completely different here at least and the Judge in question had personal dealings with this guy in that Court. He got away with absolutely nothing and it rattled the hell out of me. :D I was never used to having a Judge run interference for silly questions in the past and it's the only time it's ever happened since. :D Col

Brainstorms
Brainstorms

That's exactly what it is. There is one other word in the English language for it: Theatre. Serious game; serious theater. I was an expert witness on a case for a friend of a friend. I was needed to do some analysis to show that a witness for the defense was lying; the results of my analysis showed that this was most likely the case. The defense attorney was not only polished, but it quickly became obvious that he was VERY experienced at what we today call "Social Engineering". He worked the lines of discrediting my credentials, insisting on a conflict of interest because I was paid for my labor, etc. Everything that happened to me was in line with this article and the commentary... A game that's carefully and professionally fought on a stage where everyone is doing their best to make their acting convincing to the audience: the judge & jury.

herlizness
herlizness

Generally, the fees for expert witnesses are quite good. But, if the fee does not meet your expectations, don't accept the engagment. Nobody can "demand" that you be an expert witness. It just doesn't work that way.

Jaqui
Jaqui

to bill them at a reasonable rate for you to be an "expert witness" for them ;) say $150/hr and billl them for every hour they take of your time for a case. :D

herlizness
herlizness

that's true but I think it should become reasonably clear in most cases what you're being asked to do; indeed, you may not want to do it and in that case should not ... another factor worth considering is that some people/companies are SO averse to litigation that they may be reluctant or unwilling to engage someone who's been "in the game" for an IT role ... which you have to weigh against the undeniable prestige of being accepted by courts as an expert in your field

Sterling chip Camden
Sterling chip Camden

Many lawyers are not well-versed enough in our field to be able to tell the difference between shit and shinola when it comes to real expertise. They have to trust what you tell them to some degree, so you have to do your own soul-searching.

apotheon
apotheon

That is an all-too-often overlooked factor in determining the quality of the outcome -- despite the fact it is arguably the most important factor.

apotheon
apotheon

It depends on a number of factors, actually -- such as the issuance of a subpoena.

HAL 9000
HAL 9000

Here a lot of the Legal Teams Subpoena their Witnesses to save on costs. ;) Col

apotheon
apotheon

You make a good point about emphasis -- aside from the fact that there are still employers who don't Google-stalk their employment prospects.

Sterling chip Camden
Sterling chip Camden

If someone wants to google me, they'll find out a lot of things about me that I don't volunteer in an interview. It's more a matter of emphasis -- if I brought it up, then it might come across as something I'd focus on while working for them, whereas if they find it on their own then it's just another activity I pursue. Subtle difference.

Sterling chip Camden
Sterling chip Camden

I don't usually volunteer to prospects that I've been an expert witness in multiple cases unless they ask.

herlizness
herlizness

I take your word for it, Chip, but I am a little surprised; with millions at stake I don't know why the parties would not hire the kind of people I'm talking about. They are available. The money I was talking about ranged, very roughly, in the range of $25-200 million. At the higher end is where you typically find lawyers with the same level of training as the most expert people party to the case; they're among the best scientists to be found.

Sterling chip Camden
Sterling chip Camden

With stakes in the millions, I have yet to meet lawyers on either side who were as knowledgeable in IT as you're apparently describing.

herlizness
herlizness

I cannot argue that all lawyers are highly competent and diligent but, at least in the cases where significant money is at stake, I have found the overwhelming majority to be very well versed in the relevant field. Many are actually extremely sophisticated, hold a Ph.D the field, and are able to pin down even Nobel laureates on the fine points of their testimony. Case preparation is an intense business and often involves learning more about the subject matter than a typical journeyman knows; I've seen it emerge in depositions repeatedly. It typically shocks (and often chagrins) the deponent how much cross-examining counsel knows about their everyday work. It's what we're ethically obligated to do.

herlizness
herlizness

exactly ... neither side nor the court wants an expert witness who does not want to testify so the subpoena is too rare to be worth considering in the context of this discussion; when it's used in the UK it's more of a formality to keep the docket moving along perhaps some people are confusing fact witnesses with a direct connection to the case who also happen to be experts ... that's an entirely separate matter

apotheon
apotheon

Yeah -- I'm just talking about what's technically possible.

Sterling chip Camden
Sterling chip Camden

... of an expert being subpoenaed in the US. It makes more sense for the side that wants an expert opinion to pay for it. Otherwise, they'll get a grudging cooperation that might find against them out of spite.

Sterling chip Camden
Sterling chip Camden

Remind me not to move there. I bill top dollar -- which just covers the additional angst, in my book.