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.