The accidental expert witness
Tom Worthington FACS HLM
Former president of the ACS and is director of the ACS Communications Tech Board
First published in Information Age Magazine, ACS, ISSN: 1324-5945, December 2005
In 1999 a complaint was made to the Australian Human Rights and Equal Opportunity Commission, against by the Sydney Organising Committee for the Olympic Games. SOCOG was accused of providing a web site which was to a significant extent inaccessible to the blind. I was one of two expert witnesses who prepared reports for the complainant and gave evidence to the commission. This was my first experience as an expert witness and I have since done so in several civil cases. It is a process which other Information Professionals may face and so here are some pointers on it.
What is an expert witness?
"An expert witness is a witness, who by virtue of education, or profession, or experience, is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may officially (and legally) rely upon his opinion."
How do you become one?
You don't need any particular qualifications or experience to be an expert witness. The biggest challenge for courts is to find people who are expert in their field but have the independence to appear. As a result expert witnesses tend to be academics and independent consultants. Companies and government agencies, except those set up to provide such services, are unlikely to want to have their employees appearing in court cases.
Why would you want to be one?
Expert witnesses can charge for their time and effort, but the pay isn't good. In some cases they may choose to work for free, in the public interest. It can be a way to be seen by your peers, and the community, as an "expert" in your field. But keep in mind the costs and effort involved. What you prepare will be examined in very great detail by both sides in the court case. Your professional expertise will be called into question.
The general responsibilities of being an expert witness
The rules of what the expert witness has to do differ in detail for court to court. But in general you are there to assist the court on matters relevant to your area of expertise. You should only deal with areas within your area of competence and present your evidence even if you think it may harm the party which hired you. It is very tempting to answer every question asked very fully. But there is no shame (and a very real danger) in attempting to answer outside your area of expertise, or in taking guesses.
The Australian Computer Society's own Code of Professional Conduct and Professional Practice, and Code of Ethics can help. These remind the member to consider the public interest, integrity, confidentiality, objectivity and independence.
In practice, it is unlikely you will have to say much in court the party paying you would not want to hear. The lawyers will have checked in advance what your views are likely to be any will simply not hire you if they think your evidence will not help their client. Also if you don't feel it is a case, or issue, you are comfortable with, then don't take on the job. Once a case has started, you can't just language you can't just quit. have less scope to withdraw without a good reason.
The types of tribunals, hearings, court cases etc which require expert input
As an IT professional you are most likely to be asked to be an expert witness in a civil court case. In one case a government agency was unhappy with a computer system produced for them by a private company. I was asked to see if the system did what the client wanted.
How the ethical, legal and technical obligation can vary with a particular environment
Ultimately it doesn't matter what form of court or tribunal you are an expert witness in, the obligation is the same: to the truth of the matter. However, the process used can limit what you can do. You are required to keep to the matters under consideration, not talk about whatever you think may be important. When answering questions you have to answer the question asked.
Traps and snares for the unwary
In preparing a written statement, you should first check if there is a particular format required. Use the headings provided so the court will be comfortable with the document, if not some of the technical detail. Expert witnesses are allowed more latitude in court, being able to express opinions (based on their experience) rather than just presenting factual evidence. However, you should have a clear chain of reasoning, supported by references to respected sources in your field to support what you are saying. It helps your credibility to cite dejour standards, papers published by professional bodies and the like. Under cross examination you may be (and I have been) taken through each step of what you have said. It helps to be able to trace back from your conclusion through the analysis to respected sources.
Unlike courts portrayed on TV, there are many long boring bits in cases, as well as much confusion and mistakes. Make sure you do not add to the confusion and undermine your credibility by having trivial mistakes in your evidence. Make sure pages are numbered correctly and calculations are correct. Avoid chatting to the other parties during breaks in the case or others around. Don't become frustrated by the slow progress and apparent inefficiency of the process. It may be that you never get to the court room at all, and after several false starts the case is dropped or settled privately.
Make sure you observe court room etiquette in when you should sit, stand and when you can arrive or leave. Dress conservatively. I found a dark suit and my ACS tie goes down well.
Whose side is the witness on, anyway
Even where an expert witness is hired and paid for by one side in a court case, the expert doesn't (or shouldn't) work for that side of the case. The expert is working for the court to bring out the truth of the matter, they are not an advocate for one side or the other.
Dealing with inexpert questioning by expert cross-examiners
In court you will be questioned by lawyers (and occasionally the judge), few of whom will be expert in your field. Part of your status as an expert will come from how well you can explain complex technical issues to them. Try to keep the verbal answers simple, relying on your written report for the technical details. Don't try and answer more than the question which was asked, and don't say too much.
As well as presenting evidence on the technology, you have to present evidence as to your expertise. Make sure the details of what you have claimed as experience and qualifications are true. It helps to be a little modest. Under cross examination your qualifications and expertise will be questioned. Did you really have charge of that major project for all the years claimed?
Should the witness be paid, and how much
Expert witnesses should be expected to be paid for their time. There may be a rate set by the court, although top IT experts can be expected to ask, and get more than this, in recognition of the expertise.
Keep in mind that it will be a law firm paying your bills. My experience is law firms are slow and reluctant payers. Agree the rate and terms of payment before starting the work. You should aim to be paid a fixed time after you have done your work (such as 30 days). Court cases can drag on for years and so you should not wait until the end. Also, don't believe the lawyers when they say they can't pay you because the client hasn't paid them. The lights are on in their office and the phones are working, so they must have some money to pay important bills, so they can pay you.
You may also choose to work at a reduced rate, or for free, in the public interest. But you should still agree what your are going to do and for how long. Also you have the same obligation to do the work in the same way, regardless of how much you are paid.
What happens if the opposition's expert totally contradicts you?
Be prepared to have what you say contradicted by other experts, including friends and colleagues. It is nothing personal, just part of the job. Make sure that your testimony is within what is generally accepted in your field, and back that view up with references in your written statement. Even then, there are genuine differences of opinion in any discipline and you will be contradicted. Don't try to win the argument; it is not your job. If you find you made a mistake, then say so early on, so it does not discredit all of your work.
Is technical support necessary?
You will be expected to provide a written statement and answer verbal questions. While you can use visual aids, such as charts and diagrams, there may be limited facilities in the court room for these. Don't expect to have a live Internet connection in the court and don't rely on being able to refer to your wireless laptop in the middle of proceedings. Technology which doesn't work isn't going to help your image as an expert and hunting around to find a power point or Ethernet connection will slow down the court.
Should you offer advice beyond a direct question
As an expert witness you have more latitude than a normal witness. But you should still confine yourself to answering the questions you are asked. You may have opinions on other aspects of the case, but not be asked about them.
How much time to prepare
Preparing for expert witness work may take several times as long as normal consultancy work. You need to prepare your written report very carefully as it will be picked apart under cross examination.
Your rights to seek further information, other evidence, pertaining to the inquiry
You role in the process is limited. In some cases I have been asked by lawyers if I could be an expert witness, asked a series of questions, thanked and paid without ever discovering who the parties involved were or exactly what it was about.
While the fictional forensic scientist of TV shows is always going off to collect their own evidence and question witnesses, you must limit yourself to the rules for obtaining information for the case. If you are asked to examine particular evidence you should not go and collect more yourself. Keep in mind that whatever you find has to be told to the other parties in the case; you can't hide embarrassing results.
Where I can find out more?
- Professional ethics and computer systems, Tom Worthington, 2005, URL: http://www.tomw.net.au/2004/ethics.html
- Expert Witness, Wikipedia, 04:39, 14 July 2005, URL: http://en.wikipedia.org/wiki/Expert_witness
- Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia, Practice Direction, Version 3 (current), 19 March 2004, URL: http://www.fedcourt.gov.au/how/prac_direction20040319.html
- Expert witnesses, Report 109 of the NSW Law Reform Commission, Tabled in the NSW Legislative Assembly, 15 September 2005, URL: http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/lrc_r109toc
Tom Worthington, FACS HLM, is a former president of the ACS and is director of the ACS Communications Tech Board