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UTD CS 4398 - Expert Witness and Report Writing - I

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Digital ForensicsOutlineSlide 3Selecting and Preparing an Expert WitnessSlide 5Slide 6Slide 7Slide 8Slide 910 Mistakes Expert Witness MakesSlide 11Slide 12Slide 13Slide 14Slide 15Slide 16Example Expert Witness: Robert BoyellSlide 18Slide 19Slide 20Sample Report by a Forensics ExpertSlide 22Slide 23Slide 24Slide 25Slide 26Slide 27Slide 28Slide 29Slide 30Slide 31Slide 32Slide 33Slide 34Slide 35Slide 36Slide 37Slide 38Slide 39Digital ForensicsDr. Bhavani ThuraisinghamThe University of Texas at DallasExpert Witness and Report Writing - INovember 24, 2008OutlineReport Writing for High tech investigationsExpert Testimony in High tech investigationReference: Chapter 14, 15 of TextbookOutlineSelecting and preparing an Expert Witness10 Mistakes an Expert Witness makesExample expert witnessExample expert witness reportSelecting and Preparing an Expert WitnessReference:1. The initial interview. The first contact with the expert is usually over the telephone. You or your paralegal should at the outset establish the expert's familiarity with the general subject matter. You should also ask about his or her experience with testifying in general, as well as testifying on the subject of the litigation at hand. Finally, you should check for conflicts of interest. Never review the facts of the case or postulate strategies and initial theories before you mention the names of the other parties and attorneys. Since you may not be able to use the expert, you do not want to take the risk that the expert will call opposing counsel and reveal information learned from you.Selecting and Preparing an Expert WitnessReference:2. The personal meeting. Most professional experts are willing to spend an hour meeting with an attorney before being hired so that the attorney can get a feel for their abilities and expertise. They will bill for this time only if hired. Clients also should be encouraged to attend these meetings.At this meeting you should question experts thoroughly regarding any history of complaints or claims filed against them. Better to find out now than at deposition or trial. You should listen carefully to determine if the expert speaks with spirit and conviction. You should also discuss the expert's previous testimony on the subject matter of the current litigation. Has the expert ever taken a position--either in writing or in speaking publicly--that could be viewed as inconsistent with the opinion you expect the expert to give on your client's behalf?Selecting and Preparing an Expert WitnessSince there is no way to anticipate all the questions on cross-examination, you will want an expert who can extemporize. Some attorneys ask an unexpected question at the interview to test whether the expert can think quickly and give a persuasive, consistent answer. Others pose a complicated hypothetical to see if the expert can follow the facts presented and respond in a meaningful manner.You must also consider the future availability of the expert. Ask about the expert's general health, plans to move from the area, or scheduling of extended vacations.Selecting and Preparing an Expert WitnessOther general considerations include selecting the right type of expert. What kind of expert is most likely to persuade the trier of fact in your case? A retired veteran with impressive credentials? An academic whiz with teaching and publishing credits? Or an active practitioner with field experience? You will want to choose an expert old enough to have significant experience in his or her field but young enough to be receptive to and aware of current developments. The parties' ages should also be considered. For example, it may be more effective to use an expert who is a contemporary of an older defendant to testify as to the defendant's breach of a standard of care.Selecting and Preparing an Expert Witness3. Pleadings. Make sure pleadings are consistent with the testimony you desire from your expert. For example, the judge will not permit questions about standard of care if negligence has not been pleaded.4. Preparation. Always preview the questions to be asked on direct examination and establish with the expert whether you prefer a quick exchange of question and answer or narrative answers. If you ask a question for which the expert has not been prepared, you run the risk of flustering your own expert and thus undermining his or her credibility.Selecting and Preparing an Expert Witness5. Deposition. At a deposition, both sides can observe the expert's demeanor, ability to respond to new questions, and ability to think on his or her feet. These observations will help determine whether a party will be amendable to settlement or will want to press forward to trial. Thus, the expert's performance at a deposition is vital to the interests of your client. Your expert should be instructed to dress as a professional, maintain eye contact with the examining attorney, speak firmly, and sit erectly. If you find your expert is volunteering too much, is not being responsive to the questions, or is using body language or voice tone that reveal a lack of confidence, you should not hesitate to ask for a recess.10 Mistakes Expert Witness MakesReference-http://expertpages.com/news/ten_biggest_mistakes.htm#1 - Waiving The Reading of Signing of the Deposition TranscriptAt the start of most depositions, counsel will agree on stipulations. Use of the most common stipulation is that the deponent waives the right to read and sign the deposition transcript. The expert who is interested in accuracy should not agree to this waiver lightly. Experts who agree to waive the reading and signing are agreeing to a documents accuracy with their short testimony without even seeing the document.Lesson: You have a right to read and sign your deposition. You shouldn't let counsel waive that right unless you want to.10 Mistakes Expert Witness Makes#2 - Failing to Take BreaksExperts routinely fail to ask for and take a break when they need to or when they would benefit by a break in the proceedings.Lesson: Ask for a break or recess any time you want one, need one, or feel that it will help you collect your thoughts so that you can return reinvigorated.#3 - Conference with CounselExperts often fail to obtain an in-depth meeting with counsel who has retained them.Lesson: Ask for an obtain a meeting with counsel to review: the types of


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