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Enhancing the Expert Witness Testimony Part 1: The Expert from the Academia World

In many instances, an expert witness comes to the lawyer from the world of academia. Presentations these experts traditionally give in their daily lives are vastly different than the ones you would ask them to perform in court. Most of these academic experts are accustomed to teaching in a classroom or lecture hall, or delivering a speech at a conference. In these linear environments they are allowed to "lecture" in a free format. These audiences differ from a jury in mainly two ways: 1) their audience is already, to some degree, educated on the topic that is being presented, and 2) their audience is very eager to learn the material that is being presented. Neither of these scenarios is commonly true with a jury.

In addition, the presentation format in the courtroom is completely different. You are familiar with the Rules of Evidence and Civil Procedure regarding the examination of a witness. Once on the witness stand, most academic experts forget that they cannot begin speaking freely about a topic or issue. They need to be reminded that they are "fed" the question and then must give a specific answer. Often they tend to carry on with an explanation of their opinion or position, ultimately resulting in a narrative objection by an attentive opposing counsel.

One of the ways we like to help overcome this problem is by using illustrative aids or graphics. Using demonstratives is always a good idea to assist in conducting the examination of your expert witness. Visual aids can assist with the testimony of your expert regardless of the topic to which they are testifying. Not only can graphics and demonstratives assist in the testimony, but the graphic can also be used as a "visual outline" for the expert who may have difficulty remembering "where we are going next."

In most cases, experts need to tone down their testimony as they speak to a layman jury. Demonstratives and graphics assist with this task by adding the "visual component" to the presentation. Carefully conceived and prepared graphics can assist in breaking down the topic to understandable levels.

We recommend creating graphics using a "build technique." In our last newsletter we discussed how to employ this build technique. Briefly, we "animate" our graphics so that they build one step at a time. Placing an entire graphic with many objects on the screen at once has been found to confuse jurors as to the message of the graphic. In using this build technique, your expert can walk the jury through each point of the graphic, giving the expert the opportunity to "lecture" their way as each build of the graphics is revealed.

Another suggestion is to have the expert leave the witness chair (with the court's approval) and move to the display screen to testify to the jury in a more personal and interactive manner. This can also be done even when showing your case evidence such as documents or photographs. Using this method will leave the impression that the expert is part of the graphic or evidence. We want the jury to remember the testimony as well as what is displayed to give both a more impacting impression.

Another technique we use is to provide the expert with a hard copy of the fully built demonstrative before they begin their testimony about the graphic. Once you overcome any objections, whether you are using a graphic demonstrative or an exhibit, you can then proceed with the testimony. Your expert can review the graphic from the hard copy showing it fully built. They are reminded in advance of each step that is coming and can mentally prepare what they are going to say before the question is posed.

The result is more concise testimony from your expert witness in an environment which is often uncomfortable and intimidating, even for the most seasoned academic lecturer.

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True "Cache" Value

The word "cache" means different things in different contexts, but in the arena of computers and the internet, it generally refers to "a temporary storage of data locally that mirrors remote data in the interest of speed or convenience." For instance, browsers by default will cache images locally to speed up the surfing experience. You can set your browser to user credentials and contact data so it will autofill this on web forms as a convenience. This is all fine and good, but what does this mean to you?

There are two implications of caching that you should file away in that "nice to know" mental filing cabinet if the situation arises when you need to use one of these techniques.

1. Google's Cache – Have you ever had the frustrating experience of trying to access a web page which is no longer available? You generally get some type of cryptic error and a blank page. The fact that it's currently not available doesn't mean that the information itself is unaccessible. Go to google.com and type "cache:www.YourMissingPageHere.com" Google will retrieve the latest cached version of that web page that it has.
2. Archive.org – Have you ever encountered a scenario where there are conflicting accounts of what was on a company's web page at a given time? Did you know that the "wayback machine" on archive.org maintains a snapshot of most web pages dating all the way back to 1996? You can roll back the clock and see the state of a certain web page at any given time. This can prove invaluable in the situation where a company has taken down or changed the offending material and you have no way of proving or disproving the claims. Try it yourself on your firm's old web site: www.archive.org
3. Browser History - you can sometimes retrieve a web page you have visited by looking it up in your browser history (in IE it's the button that looks like a sundial on your toolbar, you can also access it by hitting ctrl-h). This is useful when you've been to a web page and you can't remember the URL. Most browsers will categorize your history chronologically to make page retrieval easier.

The other implication of the word "cache" that might be relevant to your practice is how it relates to our newly released Sentinel SDN compliance tool. We cache a local copy of the SDN list each night and index it nightly. This is why we're able to offer lightning-fast scanning of large client lists against the 5000-entity SDN in seconds. If you haven't already, check out www.sdncompliance.com .

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What's on your Clipboard?

In our last newsletter, we gave you five reasons why you should switch from your current web browser to Firefox. One of those reasons was security. If our last article didn't drive this point home, try a simple test by visiting the url below and clicking on the submit button:

www.legaltechconsult.com/clipboardExploit.htm

The Internet Explorer browser exposes the contents of your clipboard as an object available to javascript in such a way that any web page can view the contents of your clipboard. This is a disturbing discovery for most people since many of us use the convenience of the copy/paste function to move phone numbers, account numbers, passwords, notes and other sensitive data around between applications on our desktop. The script above could have very easily logged the contents of your clipboard to our server by sending an http post via javascript.

The best way to combat this exploit is by switching to the Firefox web browser for general web surfing and relying on IE solely for those trusted sites which are only supported in that browser. Keep in mind this is one of many exploits targeted at the Microsoft browser. If you must use IE for whatever reason, make sure to change the security settings to prompt for the copy/paste operation (internet options -> security -> custom level -> Miscellaneous). Choosing strict security settings will plug this particular "hole in the IE dyke" however there are numerous other exploits that exist and we strongly urge you to consider the Firefox browser.

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