UTD CS 4398 - Expert Witness and Report Writing (47 pages)

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Expert Witness and Report Writing



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Expert Witness and Report Writing

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Pages:
47
School:
The University of Texas at Dallas
Course:
Cs 4398 - Digital Forensics
Digital Forensics Documents
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Digital Forensics Dr Bhavani Thuraisingham The University of Texas at Dallas Expert Witness and Report Writing October 28 2009 Outline Selecting and preparing an Expert Witness 10 Mistakes an Expert Witness makes Example expert witness Example expert witness report Report Writing for High tech Investigations Reference Chapter 14 and 15 Selecting 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 questions you will be asked the pertinent legal standards your file for work product and privileged information and an update on the current status of the pleadings and litigation 10 Mistakes Expert Witness Makes 4 Your Curriculum Vitae Experts often bring a curriculum vitae to the deposition which is not accurate and is not up to date Lesson As part of the preparation process it is crucial for experts to update and fact check the accuracy of their CVs carefully Failure to do so can result in needless damage to your credibility that could have been easily avoided through proper preparation 5 Sanitizing Your File Experts attempt to hide damaging documents and notes by


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