Foreword.
Preface.
Acknowledgments.
Introduction.
1. Examples of Expert Witnesses and Their Communities of
Interest.
Who Decides Whether an Expert Is Really an Expert?. A Potpourri of
Expert Witnesses from Other Disciplines. Mona Lisa Vito: Reluctant
Expert Witness in My Cousin Vinny. Bernard Ewell: Fine Art
Appraiser and Salvador Dali Expert. J.W. Lindemann: Forensic
Geologist and Clandestine Grave Expert. Madison Lee Goff: Forensic
Entomologist and Bug Doctor. Approaches to Building Professional
Communities of Interest. Professional Problem-Solving Associations.
Government Training Programs for Forensic Experts. In Forensics, No
Expert Is an Island.
2. Taking Testimony Seriously.
Why Do So Many People Cringe at the Thought of Testifying? Why
Should a Technical Expert Want to Work in the Legal System?
Everyone Is Subject to Subpoena. So What Happened in This
Deposition? Every Transcript Tells a Story. Quibbling with Counsel
Can Be Counterproductive. When Bad Strategy Happens to Competent
Technologists. A Learning Experience for Both Litigators and
Witnesses. What Fact Finders Say about the Importance of Testimony.
Testifying Effectively Is Not the Same as Solving Engineering
Problems. Testimony—Take Two. If Credibility Is Always the Answer,
What Are the Questions?
3. Creating Stories about Complex Technical Issues.
U.S. v. Mitnick: A Case That Defined the Internet Threat. Hiding
and Seeking Digital Evidence. The Simulated Testimony of Andrew
Gross. Visualizing Gross's Technical Testimony. Demonstrative and
Substantive Graphic Evidence. Seeking Professional Graphics
Assistance. Choosing the Focus for Visual Aids. Considering Which
Elements to Emphasize. Going Back to the Basics in a Network-Based
Plotline. Using Familiar Analogies to Describe What Computer
Experts Do. Remembering the Real Goal of Expert Testimony.
Selecting the Visual Components of the Story Line. Showing and
Telling Is Better Than Just Telling.
4. Understanding the Rules of the Game.
Knights Errant as Experts. Why Does Everyone Love to Hate Lawyers?
Trial by Combat. Evidence and the Advent of Testimony. Experts
Replace Bishops and Knights as Key Witnesses. The Daubert
Line—Corrections in Course. The Rules of Engagement. Federal Rules.
State and Local Rules. The Roles of an Expert Witness. The
Consulting Expert. The Court's Expert. The Testifying Expert. The
Expert as a Witness to Fact. On the Importance of Keeping Roles
Straight. When Consulting Experts Are Asked to Testify. The Complex
Art of Expert Testimony. A Game within a Game. Setting the Tone for
the Lawyer-Expert Relationship. Dreams and Nightmares—Take Your
Pick. An Expert's Dream. An Expert's Nightmare. New Technologies
and Modern Legal Disputes Require More Experts. The Expert Trend. A
Wake-Up Call for IT Professionals. The Real Y2K Disaster. With
Omnipresent Digital Evidence, What Case Isn't an IT Case? Technical
Experts and Routine Legal Functions.
5 Chance, Coincidence, or Causation—Who Cares?
Dealing with Experts in the Age of Scientific Progress. Frye v.
U.S. : Distinguishing Pseudoscience from Science. Keeping Quacks
and Their Technologies at Bay. Expertise in the Face of
Technological Trends. Bumping Heads with Phrenology. Distinguishing
Astrology from Astronomy and the Rule of Law. Why Wasn't Phrenology
the Kind of Expertise the Courts Wanted? Modern Examples of
Questionable Forensic Science Claims. The Economists. The
Handwriting Experts. The Fingerprint Analysts. One Court's Changing
Attitude about Fingerprint Forensic Evidence. The Judge Presents
His Initial Decision. On Further Reflection, the Judge Changes His
Mind. Scientific Methods Are No Guarantee. Learning from
Pseudoscientists. When Science Turns into Art and Vice Versa. A
Case in Point. The Expert Storyteller.
6. Ethical Rules for Technical Experts.
A Failure Analysis: Examples of Ethics-Challenged Experts. On the
Importance of Knowing Where You Are (and Aren't). Lightning Strikes
Again: The Case of the Ethically Conflicted Expert. Determining
Master-Servant Relationships in Litigation. Criminal Prosecution.
Civil Litigation. Balancing the Demands of Expertise. Ethical
Principles for Information Technologists. An Overview of
Professional IT Organizations. The Codes of Ethics. Other Pertinent
Rules. Model Ethical Rules and Recommendations for Expert
Witnesses. The Academy of Experts Code of Practice. Recommended
Practices for Design Experts. Recommendations for Structural
Engineer Expert Witnesses. A Cautionary Note. Ethical Standards for
Attorneys. Going to the Movies for More Examples. Pushing the
Ethical Boundary. The Responsibility of the Expert Witness.
7. Enhancing Objectivity in a World of Bias.
Assessing the Expert-Attorney Relationship. A Different Style of
Reporting. Rule 26 and Its Effect on Expert Testimony. When Not to
Document Process. The Case of the Mystery Client. Establishing
Objectivity. Rule 26 Reports and First Impressions. The Role of
Expert Opinions and Reports: Learning by Example. Experts Need to
Write Their Own Rule 26 Reports. Lies and Statistics. Too Little,
Too Late, Too Bad. A Little More, a Little Later Doesn't Help.
Preparing Effective Reports. Steering a Steady, Objective
Course.
8. The Gatekeeper: Judicial Control of Expert Witnesses.
The Metaphor of the Gatekeeper. The Effect of Gatekeeping on Expert
Witnesses and the Court. Historical Gatekeeping and the Needs of
the Current Legal System. Challenges to Technical Expert Witness
Evidence. The Classic Case of Dr. John Snow. Putting Yourself in
the Judge's Shoes. Expanding the Standards of Daubert.
Brainstorming Strategies and Scenarios to Prepare for Daubert
Challenges. A Hypothetical Daubert Disqualification. The Scenario.
The Issues of the Case. Synopses of the Experts' Rule 26 Reports.
The Issues Surrounding the Qualification of the Experts. The Issues
in Dispute. The Structure of the Daubert Challenge. The Challenge
Itself. What Happens Now? Looking Forward to the Gatekeeping
Challenge.
9. The Magic of Testimony: Communicating with the Fact
Finder.
Taking a Page from the Jury Consultant. The Paradox of Case Studies
and Trial Preparation. Why Should You Prepare for a Case That Will
Never Get to Trial? Learning by Example. How Does the Court Deal
with the Absence of Recognized Standards? The Gates v. Bando Case.
Presenting the Expert's Qualifications. The Devil Is in the
Details. The Parties May Be Held Responsible for Their Experts'
Performances. Sometimes Experts Have to Judge Other Experts—and
Find Them Wanting. Experts Often Quarrel for Legitimate Reasons.
The Rest of the Story. Expert Performances Can Make Enormous
Differences in Outcome. What Can an Expert Do to Reassure a Lay
Judge or Juror? Some Rules of Engagement for Presenting Expert
Testimony. But Shouldn't We Expect Judges and Jurors to Be Experts
Too? Why Do Most People Respect Teachers and Authors? Presumptions
and Burdens of Proof and Persuasion. Houdini as Expert Performer
and Professional Skeptic. Coming to Terms with the Different Roles
of the Expert. Houdini the Skeptic Assigns the Burden of Proof. Why
Experts Can't Create Idiosyncratic Standards. Beware of Those
Looking for the Perfect Expert. Illinois Tool Works v. MetroMark
Products: A Postscript to Gates v. Bando. When the Defendants'
Expert Is Not the Defendants' Ally. The Outcome. What Experts Can
Learn from Court Opinions.
10. The Role of Visual Exhibits in Expert Testimony.
Thinking in Pictures: Sage Advice from the Pros. The Basic
Philosophy: Keep It Simple and Honest. Establishing Credibility by
Teaching the Basics. Turning Students into Teachers and Advocates.
Thinking about Highly Complex Technical Processes as Pictures.
Introducing the Expert with Graphics in the Opening Statement. The
Benefits of Using Graphics in the Opening Statement. Graphics Speak
to Both the Judge and the Jury. Designing Defensive Visual
Exhibits. Follies with Visual Aids Can Be Disastrous. Courts Have
Concerns about Computer-Generated Evidence. The Radiation Case
Study from The Focal Point Archives. What the Jurors Need. Using
Outlines for Technical Expert Testimony. Using a Scoreboard to Tie
It All Together. Winning the Battle but Losing the War: The Risk of
Argumentative Titles. Authentication Tags for Visual Exhibits.
Don't Forget Spontaneously Generated Visual Exhibits. Talk to the
Jury, Not the Exhibit. Mesmerizing with Magnets. Connecting the
Links in the Chain.
11. Demeanor and Credibility.
Law in an Age of Sound-Bite Attention Spans. Playing for Effect.
What Fact Finders Don't Like about the Demeanor of Experts and
Attorneys. The Unbroken Circle of Professionalism, Preparation, and
Organization. Demeanor Professionals, Demeaning Professionalism. Is
Plastic Surgery an Issue Here-Face Saving Notwithstanding? Clarence
Darrow “Examines” a Witness as to His Demeanor. Techniques for
Fine-Tuning Your Courtroom Demeanor. Controlling Demeanor Begins
with Learning to Breathe and Relax. Getting Centered with the
Martial Arts. Does the Current Adversary Ethic Threaten or Preserve
the Legal System?
12. Nonverbal Communications.
Do Nonverbal Communications Really Affect an Expert's Performance?
Verbal and Nonverbal Communications: Which Is More Important for
Credibility? Lawyers and Technical Experts Generally Prefer to
Read. Notes Don't Always Help Fact Finders Remember What's
Important. How Important Is the Quality of the Voice? Combining the
Voice, Hands, and Body Language with the Words. What's in a
Nonverbal Communication? Posture. Eye Contact. Facial Expressions.
Gestures. Body Orientation. Positioning and Proximity. Vocal
Qualities. Humor. Gestures as Essential Components of Testimony and
Communication. Ultimately, It's in Your Hands. Working with Your
Hand Gestures during the Course of Testimony. Learning to Use
Gestures Effectively. Smile, Partner. Learning to Act the Part of
an Expert Witness.
13. Putting It All Together: IT Expert Roles.
Rebecca Mercuri: Testifying in Cases of National Importance. When
the Initial Interview Consists of a Phone Call. Qualifications. A
Wide Variety of Expert Experiences. On Testimony before Nonjudicial
Fact Finders. On Dealing with Logistic Issues. Surprises amidst
Lessons. Donald Allison: Finding Feedback Loops to Improve
Performance. Deciding Whether to Accept an Assignment. Conducting
the Investigation and Reaching Conclusions. Preparing to Testify at
Depositions and Trial. Testifying at Trial. Soliciting
Participants' Feedback after the Trial. Eugene Spafford: Continued
Education in the Legal Domain. The Initial Interview.
Qualifications. On the Importance of Objectivity and Focus. On the
Importance of Flexibility of Role. Lessons Learned. Packing Your
Bags and Embarking on Your Own Adventure.
Appendix A: Major Cases.
Frye v. U.S.. Daubert v. Merrell Dow Pharmaceuticals, Inc.. Kumho
Tire Company v. Carmichael. Joiner v. General Electric Company.
U.S. v. Plaza, Acosta, and Rodriguez.
Appendix B: Federal Rules.
Federal Rules of Procedure. Federal Rules of Evidence.
Index. 0201752794T09272002
Today technologists need expert witness skills. In addition to understanding the technologies that may be at issue in a given case, an effective expert witness must have an understanding of the legal system, specific courtroom communication skills, skills for enduring cross-examination and preparing for legal testimony. When new technologies are introduced, litigation about the technology and its uses is quick to follow. There are new forms of legal claims for everything from damages for the failures of enterprise networks to new uses of surveillance and the authenticity of digital evidence. Over 90 percent of all information is now created and stored in computers. Technical experts routinely come into play in investigations where evidence is suspected or where computer system behavior is relevant to the case. IT professionals, system administrators, and security consultants are increasingly being brought into the legal world, and they need to prepared.
Fred Chris Smith is an experienced trial attorney who directed economic crime prosecutions for four consecutive New Mexico state attorneys general. For nearly twenty years he has also provided education and training programs throughout the country and abroad, in digital evidence and computer forensics. He has been involved as an attorney, business advisor, and teacher with information technology and legal professionals who are encountering the rapidly changing problems presented by electronic evidence in criminal cases, in the investigation of corporate network fraud and abuse, and in civil litigation. He currently serves as an Assistant United States Attorney.
Rebecca Gurley Bace is a recognized network security authority and consultant. Her career includes work with the National Security Agency, where her contribution to building the national intrusion detection research community earned her an NSA Distinguished Leadership Award. After the NSA, she became the Deputy Security Officer for the Computing Information and Communications Division of the Los Alamos National Laboratory, where she was responsible for one of the world's most complex security-critical computing environments. She is currently President/CEO of Infidel, Inc., and a Venture Partner for Trident Capital. Bace is the author of Intrusion Detection (Macmillan Technical Publishing, 2000).
Ask a Question About this Product More... |