Lauren X. Topelsohn is Shareholder in the New York and New Jersey offices of Mandelbaum Salsburg, P.C. She is a seasoned litigator and legal advisor whose diverse experience combines law and technology issues. She has litigated actions involving computer fraud and trespass, domain hijacking, cybersquatting, intellectual property theft and disputes, deplatforming, and free speech. She regularly advises clients regarding privacy and cybersecurity issues, data security best practices, employment policies, and information governance issues. Topelsohn is a CDPSE. Prior to joining Mandelbaum, Topelsohn was an in-house General Counsel and Operations Officer. She is a graduate of Barnard College, Columbia University, and Northwestern University School of Law.View the profile
Hoyt L. Kesterson II is a Senior Security and Risk Architect with Avertium. He has more than 40 years of experience in information security. For 21 years he chaired the international standards group that created the X.509 public-key certificate, a fundamental component in digital signature and securing web transactions. He is a Co-Chair and Founding Member of the ABA’s Information Security Committee. He is a testifying expert. He is a PCI QSA who helps clients meet compliance requirements for ensuring that the integrity and confidentiality of payment card data are maintained. He holds the CISSP and CISA certifications. He is a frequent and top-rated speaker at RSAC on topics ranging from why forcing periodic password change has no security value to a mock trial on funds transfer fraud.View the profile
About the talk
Lauren X. Topelsohn, Member, Mandelbaum Salsburg P.C. Hoyt L. Kesterson II, Senior Security and Risk Architect, Avertium Do you want to meet more lawyers? Become an expert witness. All litigation involves technology and expert witnesses are needed to explain that technology to judges, juries, and attorneys. This presentation by a testifying technical person and an attorney will describe what an expert witness does and the skills needed to do it effectively. Learning Objectives 1. Learn how attorneys search for, select, and prepare expert witnesses. 2. Learn what skills are needed and suggestions on how to develop them. 3. Learn the proper mind set to face an attorney in court.
Hello everyone. I'm voice esterson. I'm here today about talking to me about being an expert. Witness and joining me is my Coast bigger Lord topiltzin who's a real lawyer. So let's get into this. I'm not a liar. Obviously. I'm a technical but people see me at this conference for a long time. Know that I'm not a lawyer. So what's the bet about an expert witness? I have a very favorite movie. It's called My Cousin Vinny and I liked it so much because it shows exactly what an expert witness does. And I'm not the only person who thinks that because this, this
film is actually shown by college professors at real loss pills. Real good loss pills as an excellent example of how an expert witness is used and brought into a court case. So, if you've never seen my cousin Betty, it's also a very great movie, the lady, sitting to your left, one Academy Award for it, and What's the temperature? Anyway, so what happened in, March 2019, the Arizona Arizona signed a law called a dealer management system law, which basically mandated
that a particular sector event industry and industries. Actually, Services automobile has had to give access to their product. By offering an opiate an open API. Okay, many people argue that these companies, there are only really two big ones. They buy everybody else have almost Monopoly on it and the car dealers are never very happy because even though they put their data and make it really can't get to it the way they wanted it. And so several states have been considering all kinds of different actions, but Arizona, took a different approach that was mandated an open API. Well those
two companies took umbrage and they actually said we're suing you we're suing the state of Arizona and interesting Lee enough. I became an expert witness so-and-so. On June 3rd and in 2020, I had the unusual experience of being in a witnessed and I've been in one of those before, but it's the first time I've ever been on the witness stand wearing a mask. So that was pretty interesting. Now. I've done this for 5 times 6 times throughout my career. This is not things. I go looking for, but a lot of people ask me. Okay. Well, how did you get this gift? And in reality? It started with a
phone call. A long time ago. I was sitting at my desk and out of the blue, the phone rang. I answered it. And it was this attorney and he said, what do you think about a patent on a directory service? The store, x.509 public-key certificates? And I went. Well, that's interesting. I let a group that publish the international standard about that course. It's why I called me. And he basically said, I hoped that you would say that. Would you be willing to tell the court that? And so, that was the very first time I ever got into this
entire issue of preparing to be an expert witness. Not interesting Lee. I did a lot of the first stages of it worked on writing a document so forth. That's it said, this is why this should never be a patent. And in fact, that's what finally happened. People withdrew. The, what what do the patent? But I didn't really get to court and you'll find that out as an expert. Witness do a lot of times you do things and why is rather settle if they don't want to go to court, right? If you write a compelling enough story or dope and telling the story or
are at enough compelling facts to an argument youth, Can you make a fine if you're not going to go to court, but I have actually been to court, several times to typically when the boxer big. Okay. So what exactly is the different kinds of witnesses? And I'm going to tell you from my level, which is not allow it. Right. So the fact witness taste and obvious name, they basically testify, two facts that are based on the direct observation of a mess of other words. They were involved with them. They they did them. They saw, you know, or are they were standing right
there and they heard something right? It can't be second-degree. It. Can't say Bill told me this happened because you've heard this term is called hearsay. Right? Sofac Witnesses are exactly a serving. The fact that's why they're easy to. Remember, sometimes and legal documents. You were sitting refer to seem referred to, as lay, lay witness that way, why? But that's it, an expert witness is not involved. In the case of ants. This is an important Point, not involve my case because you can be an expert and be a fact witness. In fact, the mock that's
coming up at the end of the day, the what the person who would normally be an expert witness is actually testifying about the assessment they did. And so hey it's not opinion. It's because it's not explaining their actual explaining facts about the case. So even though the person is an expert, they are, in fact, a fact witness and that's allowed. Okay, one of the important things about it is that you're a fact, witness. You're not supposed to be getting paid for so long. That why? Purpose of an expert. Witness specialist things. Got more technical.
Is there supposed to be able to explain technical details to attorneys, the judge and the jury. That's their major thing explaining. What in the world is going on? Well, okay now that sounds all very straightforward. How could this get messed up? What gets messed up over the questions that you might ask yourself. What? What makes you an expert, how come you're an expert and, and that happened a lot, particularly in the seventies and eighties. Because people would be dragging experts out from the strangest, places often under the strangest, drugs and end. So effectively,
there's this thing called Robert, which I'm not going to talk about it, cuz I'm not an attorney, but miss tacoson is Everyone. Thank you for joining us. Yes, I am into turning. I don't have an opinion about that at the moment. I do want to talk about experts there. I would like to just back up a little bit about the role of the expert is because an expert to be engaged in a number of different roles as pointed out. A lot of them do not go to court and testify at attorney, May engage in expert to
further, educate themselves on something. But in terms of offering an opinion, which, which is a matter of why they would go testify in court, or in the hearing of some sort, you know, they are still added that everybody has an opinion sort of like shoulder blades. Well, we can offer an opinion in court. So the expert's opinion. It's the question is, are you an expert? And then the question is, is the pinion something that can come into court and the judge Is the gatekeeper. So there is jury trials and bench trial. And then trial
means that the judge typically makes inclusions of Law and will decide the issues of Law and it's the jury who will determine issues fact, and that's the typical division of labor so to speak. If you have a bench trial, there is no jury. So, the judge will do both, still make the termination. And on the issues. I mention this because the judge is always cheaper in terms of what opinions can come in and whether somebody's qualified as an expert. So, the first thing is, is someone
qualified and the main question is, and we're really relying on the federal Rules of Evidence, because state law has its own evidentiary rules, and the federal rules apply under the federal rules. 702, an expert can That's my opinion is admissible. If the expert has a certain scientific or specialized knowledge that would assist, the Trier of fact, which could be the jury or judge if it's bench trial to determine an issue. And not really supposed to go to the
final conclusion, that strongly not supposed to offer an opinion on legal conclusion, or the ultimate determination. And this is where things get a little bit in court about whether the expert opinion is testifying or offering an opinion, intends to offer an opinion to the ultimate clusion. That's a jury is supposed to Sherman. You don't want to invade the province of the jury with the fact-finder, and that's where a lot of showdowns go. And there's these things called motions in limine to preclude, an expert from. Define. If that's what we'll get the expert in the
next question is what about the nature of the opinion and quite mention to daubert factors? And that's based on a u.s. Supreme Court case called Delbert versus Merrell Dow and It's at the five main factors that are court with balance to determine whether an opinion should come in. As if those factors include. Whether the nature of the opinion is something that's scientifically generally acceptable in the community. The next is, is it something that can be tested. Are you offering
an opinion on a matter that can be tested and proven over again? And if, so, what's the known error rate? Is there an error? Right? Is it something that's been subject to review a publication? Is it? Repeatable? Are there any stroke control standards? So this is a 5-gal refractors based on that and the qualifications of the witnessed. The judge will determine whether or not. The opinion will be allowed. Well, it's interesting that you said that scientific because is it not true that over the fat over the years it's been brought in to be more than just scientific business, business?
Business. There are technical. So for example, I understood that you could princess be an expert on real estate values. For example, absolutely certain for a unique knowledge and real estate about always has a really good one and it's somebody's very familiar with the real estate in a certain area and whether it's commercial and residential and has been in that area, it's not something that they can study. Perhaps. It is immediately for that matter, but it is something that it they have a history and education at a
written and they they have some kind of higher degree in, not always a higher degree, is not necessary, but some credentials Supernatural is not. The search for a lawyer is interesting. I, I met Lauren a long time ago because I met her because I became her expert witness. I was heading to Florida Keys for vacation, and I spent an incredible amount of time. Now. I must admit that I was sitting in the sand outside of the little bar that was used to film Key Largo talking on the phone to work, run who was the sweating and office in New Jersey that for
some reason had no air conditioning. So it was a bit more enjoyable. But this is this case is probably a good bad case about hey, how to get an expert really quickly and we're not doing anything at the normal measure Pace that you find in terms of preparation for a trial. So, Lauren search for nextbook McKay's. The Rhine note, no clothes and a head of head out. This was an unusual case that shake was accepting it. As the third attorney, who did on this case, and I was told that a hard drive had been in this Bay, use the term mirror image, and Mirror Image has been made at this
hard drive, and as it turned out, it wasn't, it wasn't a forensic me. Sound image of this hard drive. And the case involves a software product, liability issue with competitors. And a potential back door that electric generators, get the information accounting software, for specifically, for the industry. So that's why the Rhino had no close and it wasn't easy to find an expert. First. I had to find one in very short, notice. Because once we had engaged in some Encompass, it where I had come to some agreement with my
adversary about a protocol to look at this hard drive, initial step was open it up and see what size nobody had. Any idea what was on it? You found out that it wasn't what it was reported to have to pay. So they yelled spoliation that I had for my clients have relevant data or documents or information. That's I won't get into that cuz that was really the punchline of the case. And judge said, when the attorneys were arguing about what he deserved, whatever their efforts have been made,
literally said, it sounds like a bunch of attorneys talking about technology that they know nothing about. I want you and your expert in my courtroom in 10 days to testify to what this is. My exercising have an expert. I didn't make that image. I haven't retained the party who makes head, head made the image. I had inherited this hot potato and I needed somebody. And the first expert I found you had very good credentials and he found out. It was another job working as it turned out the
Archdiocese and when he heard the nature of the case, he felt like he couldn't take it. So it's just happen to be the second person. Yeah, and when I was asked if I was what did I think of it being poor? No. I said well, I personally if it weren't for poor know I didn't think we'd have VCR so I didn't really have a problem with it, you know. And besides which the case as you said was an account in case the program in case it really didn't matter what industry within, although we did meet some pretty unusual people associated with it. So that was
kind of fun. So so that's what happens when you're in a panic. But what do you want in an in an expert witness? This is not all about your resume or good resume alone isn't going to do it. You really want somebody who is Buddy who the jury's going to like the judge is going to like someone if they're going to have confidence in somebody who inspires Trust. You want, you want somebody here to basically it is again, the resumes healthful and necessary to qualify. The expert that alone is not going to do it. You want somebody that you probably want to spend time with and it's unusual
about what you don't want. That's easier to figure out what you don't want. What don't you want? You want, somebody is going to condescend to anyone. You don't want somebody who's grupos. You don't want somebody who, who, who is unclear, who, who can't get across a thought. In a Fair Way, lawyers in law school want to become Tyler's 10 to take trial classes. I know I have several and one of the things that we learned was you never know what the jury is going to pick up on when somebody set the fire.
To accept this person as an expert. And what is it? You're going to focus on? Is it because the expert stamp C10? Is it? Some big ring. The experts wearing? This is something you really want who they want somebody to. Know. Somebody special. It comes, across that way. And of course, once you pick this jerk, This thing always remember going back to the very first Attorneys at that. I work with and, and we worked in his office off and on for a while and never got the court, but he said, you know what I like about you as an expert witness. And I said,
know what he says, you answer only the question asked, he's concerned. He talked about you. Sometimes you get an academic and academics, really knowledgeable, and the academic it. So, used to teaching, so used to explaining that when do the, the opposing counsel would ask the question, question, the academic might say, well, you're not really asking the right question and you really need to ask. In other words. This is not what you want, your expert doing for the opposing counsel. So so it's interesting, you even though you may know a lot of
stuff, even though you might truly be an expert. You might have someone to protect himself really well, but didn't know the topic that well, that can happen. But the others just as likely, I know, the topic really well, but I don't stand a chance to explain you or if I do people hate me when I'm done. So, you know, such a steak on the other, on the part of the other expert which was important and something that we could use on cross and why don't you speak to that? Yeah. Well, I guess it's just that. This was a classic example of a very young man who was
hired to essential to do, all the data extraction work. For the day distractions. That work was fine, but he didn't really have a detail to operate an understanding of the operating system. And in this particular case that I appreciate your operating system with Linux. And so this was kind of a Windows guy and and as a result, when you get into arguments about what should or should not be, or what is or is not in an operating system, your breath of knowledge. Should be somewhat more than, hey. I've been running on Windows for the five years of life. I've been working in the industry. So
it was, is that kind of thing? It said, it is it's, you know, we'll talk about it when you get to the end. But to me, it's really important that, you know, you can be really good at your job, you know, a way of doing it. But in reality, if you're an expert in your job, you know, pretty much all the ways of doing it and when you should do one or the other and that's kind of the big difference. So there are some legal terms, right? That that I learned. Okay, because I had no idea even watching Perry Mason. I don't think I ever heard one of these turn and I know that the first time a lawyer
ever said to me spoliation, I said, don't you mean spoil eation? And he's no relation. And so, and so, and so this was a learning exercise for me, but I believe that, particularly, if your technical person like I am, these are three very important legal Concepts. You need to understand and Lauren is going to Graciously, explain them to you. Discovery is the process in a litigation were by both sides would have to exchange information regarding their positions. By there is an offensive position or defense and you get it. There's a
mandatory disclosures that have to be made according to the federal rules. And then there is other disclosures that you can ask questions. They ask for documents, were forged documents with generally but it's documents and data or an inspection of something. You want to see what the other side. Has maybe documents will support their case. But if they have the items you want to, you want to inspect it, but we are trying to stick to technology-based information. So what's up? Where you might want to copy of the software to try it out actually. So each side.
Surprise at the end. So trial is not supposed to be. I know I got you kind of experience supposed to know the other little bit about what the others are. The cards are what your card and they're supposed to know. What cars do you have? And by the time you get to tryouts Battle of the facts and the issues matter of surprise, so that's the discovery process and it involves also deposition which can involve a deposition of your expert. You have to disclose that you hired an extra. If there's an opinion, if you
received an expert opinion from my adversary, which I thought was so favorable to me. That was that was you. I was going to lie. I had no intention of hiring an expert. Interesting, how can I spray paint can work out for you that way? But doesn't happen. Too often, not everything can be discovered. Right? I mean, because there are certain Communications certain things, which can't be discovered. Will everybody's most familiar with the attorney-client privilege. Well, not everyone,
that's why we're talking about and that privilege can extend to the expert if the expert is acting as an agent of the attorneys. In other words, the expert Falls within the same umbrella doesn't happen on theirs and I can be a Battle Ground area of what does happen is work product privilege when it relates to an expert because the expert and since I'm kind of analysis performed, some kind of study and as I said, render an ultimate opinion regarding the issues that he or she has been viewing a matter that you, she has been reviewing and
There is another Battle Ground area, weather. Yes. The expert opinion, is something that's discoverable. What about drafts? What about Communications with Council? What about that? I can get, I can get very thorny. There are fights about that. It's not as clear-cut and so you really want your expert to refrain from putting anything in writing until you finally. Have a good sense of what it's going to say exactly as it used to be. Because I remember that,
I mean, they changed the federal laws on this one, but not necessarily all the state laws. But I remember when I first started doing this, that if you had multiple drafts of your experts report, those drafts were discoverable. And so, we would go to a great effort wear. And this, considering back when I was doing this. Stop. This was this is sometimes hard to do. I would have exactly one copy. I would not even do backups of it, which was always a frightening thing to me because God help you, if you lost it, ride better, if you had a backup, that's another copy. And the point
here is that they're going to get there if you have multiple copies at and I see a difference, they're going to say, why don't you change your mind here? Right? And and so we go to great efforts have exactly one copy. I would sit there and write a draft and I would send them to draft or anything like that because that would be a copy. We would somehow get together. Either be a shared screen or staying the same room. And they would read over my shoulder and make recommendations, and I would make changes, and I'll actually change that, and it made that work product privilege, which made life.
I made that work product protected, which is made life easier. But if you guys hang around in the wall track, you're going to find the mock trial at the end of this. At the end of the day, is actually talking about a big legal professional over whether or not Our forensic examination. By an expert, is really a privilege document or not. And there been some really big cases on this lately. And I believe that another panel is talking about this topic off. So so, so it can be really important. Let's go down to the one that I always used to mispronounce. Let's talk about spoliation.
That is a term that has really grown in popularity over. I'm trying to remember the first case. I'm referring to a case out of the southern district by a judge Shira scheindlin and she's sometimes a sitter the mother of Jesus cover in some sense or at least in terms of standards for school. You should choose the first one who probably articulated best dad. Spell your to preserve evidence that potentially could be relevant to your case or the other side space.
And when is the duty to preserve arise? And she was one who are particularly in terms of when you have a reasonable expectation of litigation. That's when the Doodie kicks it. So it's not the day that you could serve a summons and complaint. It's not the day for the process server. Is ringing your doorbell. It's not the day that you get, a demand letter is tends to start before that. If you have a reasonable expectation, is somebody, is there an employee throws up there? If you terminate an employee, and employer turns around says you. I'm
going to sue you for everything. You've got a reasonable expectation litigation. You start need to start preserving information relating to that employees employment with you. So spoliation is the failure to do that. And I hope it can be both either accidental or purposeful. Right? Yes. The federal rules have been amended to deal with electronic, electronic information, but also apply to any kind of evidence. So the case where is a biking accident and woman was who is Beto was going to have the police throughout the
bicycle, which would have been Not helpful for her case is, well wanted to prove that the that the that this better husband hadn't had a heart attack and had I been hit by the car. He had a heart attack. She wants to go to the gym. Is it was caused by the accident? Not that it preceded, the accident anyways, so if I start have rules that govern, what happens if you have failed to preserve evidence, particularly digital evidence for electronic evidence and
if it's not intentional, but it's prejudicial the judges and power to mete out. A remedy that is commensurate with the Prejudice to the party who would have watched resent that information. It's really the other side. So if I just broke my own evidence, I can't now go ahead and say this is Would have said the benefits to the other side on in the equation are always in this equation. If it's intentional, if a party, is found to have intentionally fail to preserve evidence in an effort to
deprive the other side of that benefit of that evidence. And there's a number of sanctions that the courts have recognizing common law and which are now also stated expressly in the federal rules and those include everything from the court can instruct the jury that they should assume that the evidence would have been done official to the other side and that they should take it. It should have. What's an adverse inference that the evidence has been insulated would have endured to their benefit and can even go as far as having a default judgment against entered
against the theater or have a case dismissed against the school later. So those are real extreme examples that they do happen. It is, but you need to be able to show Prejudice. No matter what this information that I think people should consider a lot of people at this conference. For example, would be responsible for someone's data, retention Data Destruction policy. And as Lauren said, you know, if you think that you're going to be hit with a lawsuit or something on his line, you need to actually stop. You need to stop. Your regular is scheduled beta destruction. And the other
interesting issue is again is encryption. So I actually had a case where data that the plaintiffs wanted to see who had been in been as part of the regular process encrypted a long time ago when it happened and I guess what they had lost the keys and their key escrow system is kind of messed up, was all accidental but that's kind of like what I had to prove. So what what do experts do, what was Spell the word first thing with first day. She talked about where the date of production was all messed up. That was a classic example of someone who thought it was a good idea to take a Linux data
dumb and converted the windows. Okay, to help a lot of years which course destroyed all the metadata. It was an innocent helpful, kind of thing, but it's exactly why he should be involved. When you're doing data production. They will examine physical things like bicycles like blood. So everything you see on CSI, you can even find people who will Terra disk drive down in, and use an electron microscope wanted to recover something. So they do physical thing. They do interesting things that are very specific to our software industry like examined code.
It is so easy to move code from save some program you. So I'll just put it in your program. Well, sometimes that's not exactly legal because of copyright support. But what if you're clever, what if you change the tag, but if you do this, well, then very clever. People like this longtime colleague and friend of mine. They actually look at patterns and look at stuff and say, okay. Well, yeah, but isn't this an interesting way and programmers are funny. I mean, it's almost like a signature. Sometimes, you look at code and you can actually say who wrote that because of the style
of writing, that becomes very useful in that case. Then there's the same investigation or more important. Now days because we're seeing a lot of things that are happening because of villains are breaking into your system and they're in an it is just not your system crash in because you've written No, it's because you've written bad code, to let a guy in the door. He took everything and made a mess while he left. And so, if you need someone, the interesting thing about computers, well, here's where the body else. But where was it shot? No case, you have to go back
and actually found a trail of blood to do that. And that's what forensic investigators do. And as you can imagine, lawyers are very interested in that because if they find that you didn't do a good job, securing your system, that's negligence. And that really helps in awhile face. And then we get down the really weird ones, which is opine on concept. And the thing I did for the State of Arizona was exactly that because it's all pretty much about what what is an API anyway, you know, and an argument was being made on the other side. Then open API has no security it does. But that was just
kind of the argument. So so you end up our concept of these kinds of things that you might find yourself doing as an expert. So you can find a nice and and do and do what your You do so don't come a point. It where do you meet the attorney you go? When you meet Lauren, okay, Lauren, what happens. Then? We interview as we want to know, this is somebody who Drew Brees going to like somebody to spend time with somebody who knows their stuff and ask for business, in the context of whether you're hiring an expert to examine something
or to provide an ultimate opinion of something. And I think what it thinks it had actually asked me to speak on. That was non-disclosure agreements does the expert opinion as a set of something that gets produced but there's information that you're going to buy the expert that they are going to rely on informing that opinion and doesn't even have to be in context. I provided a hard drive to forensic analysts recently because the timekeeping program that my
client use for his employees had corrupted. I got the short story and we were trying to obtain whatever we could get off of the hard drive. We weren't able to go back to an issue. We were able to feel like four of them which was better than having no bullets at all. Cuz that's what I felt. Like. I was going into a gunfight with no ammunition. The point is that the hard drive obviously has a lot of other information that may not be related to the case and or personal information regarding its
employees. So you an expert to limit the scope of what they're reviewing and not to share the information with anybody else. I heard there was another incident where I was going to hire a handwriting expert and I provided him with multiple copies of examples of this signature question was whether or not the president signed the agreement, which my client said, I've been signed, and my expert did not put his opinion writing. He was smart expert. They called me up and he said to me, he
didn't say to me. This is important to me that I cannot testify that this is the signature It means that I can then I was free to go find another expert who could testify that it was and it was too large part because of that. So non-disclosure agreements commitments to keep information confidential continue after your attention. So that in the event, somebody tries to obtain the experts opinions or the day that they may have been provided and still have or their Impressions that the expert will notify the attorney who retain them in advance of
disclosing, any of that information. So that the attorney who did retain them, can get involved necessary to seek some sort of protection. Okay. Now. Then there's compensation. I found the interesting thing about compensation to be, hey, you know, how normally salaries our secret will you're an expert witness? Your compensation is not secret. And so they're, they're really two interesting things about it. That I learned number one. It's not secret, when, when Lauren talked about how she had to tell the the other, the other party that it would just have been obtained
and tell him how much they're paying their paid, what they're paying them. But also, when you write a report, it basically says, hey, I'm being charged xmb. I'm being paid an extra dollars, an hour, or, maybe even fixed amount or something. And the second thing is, is your compensation cannot be based on result. In other words. It can't say. Well, you'll get more money. If we win this case because that's kind of like saying, well on that particular case, maybe I can shaded a bit, because I'd like to make more money, you're not allowed to do that. And of course, Lauren just covered
non-disclosure agreement. So very, very important. And in and then you might be, you'll, you'll be expert. You'll get it. And you have to protect it, too. Because we've seen several cases where people have been attacked by ransomware, people of ransomware, guys, and the information, they found is a sensitive information that belongs to these peoples client. This is not good. And finally, you end up and and, and of course, you retain this contract, this contract is done. So what are you? Do you retain? What are you going to study that, all
these documents that you talked about? I mean, in in Discovery, there's this thing. I'm in Discovery, Sometimes they used to try to do that. That was a lot easier to do when it was paper, a little more difficult, and electronic documents, because you can also do it if you're an expert, Wikipedia and Google are your friend. But I always loved that line, start with Wikipedia, but never stop there, and that's important, that's important. Okay, because that should be your thing. I recommend that what Wikipedia is really great, but not for the article itself, but most people don't even notice.
It's pretty much at the end of every Wikipedia is Agra fee. The documents the people rub bibliography, and that's a good source to go looking for things. Then you're going to ride an expert report or Declaration and I was always confused about this for a long time. What the difference is in a declaration. You're actually put an opinion in an expert report. You're just explaining things. And you never really actually say, what all is least. It has as Warren says, you're leaving. You're leaving it to the Trier of fact to make a determination. But sometimes your ass to a point that it's a
declaration. The other interesting thing you end up doing is that the opposing expert will have been to pose or written documents and so forth. And so you're basically, you know, I always think the word were. But yes, it's because yes, but what you're saying? You you basically help the lawyer come up with the with arguments against what the opposing experts thing and deposition. What can I say about deposition? Deposition is very exciting because you the expert are sitting there and you are the target of more eyes than you've ever been used to, you haven't lived into your room of 12
lawyers in a video camera. Turn off and they're all looking at you. And the important thing about deposition is that it's all going to be recorded. It's all going to be examined and whatever you say they're going to turn around and give it, give it to you. So you have to be very careful when deposition what you sayin, deposition and what are the other interesting things? They'll ask you that it will read your report and they will actually say, have you ever you have you changed your mind about your report? Have you gotten any other information? And you should make that point now because
you don't want to actually say something later in in important testimony, that then say something totally different, that's embarrassing for everyone. And of course, you're going to make it, you know, it may actually go to court, which case you going to testify direct directions. Never be a surprise because that's your attorney. You're supposed to remember that practice practice, practice. We're going to talk about it again, you've done this. You know what you're supposed to be saying, crosswell, this other attorney is going to Actually try to weaken your arguments and that's going to be
difficult. You know, that that's it. I think are going and sometimes that they can do this to be helpful thing. I remember most is I said, I went in for the encryption case I went and talked to the person it was the system's person at the time and then the lawyer hop in and said, he told you what went wrong and I said, no, he actually confirm what I already thought was wrong. They can be very careful. When a Housing Council tried to be helpful for you and give you word. And then also, sometimes you could you want to say, yes, but on a question when they crossed you, but don't if it's
important, your lawyer will note it and they will redirect. And they'll ask you the questions that let you answer the right way. And of course, practice. Practice practice. You tend to do this all the time. So, when you come down to what is an expert really do? Okay. Well, Lauren said it, you know, when she talked about whenever you hire an expert expert, witness an expert witness has to be able to explain is there if they use terminology that they use jargon, you know, that's right in the conversation amongst experts. But it's not a good conversation to the jury
or the judge the judge is going to be very educated but not in your area. So you go and of course the most important thing, which I mentioned they should tell the truth, but you only answer the question. You don't give him more truth than they've asked for right. You let them work that out themselves because that's what they got to do. So, when you come down to watch, you must be do this. Why I talk about teaching, you must be able to teach when you right and you speak. But how do you do that? How do you get to that point? You get there? Because you just write off and I don't care
what you ride or anything else going on. And then you speak. When you give as many talk cuz you can To get noticed you volunteer. So for instance, talk at this conference work at this conference, local conferences trying and it's good to go where attorneys go. Okay, because the bar area second be the bar after the conference to that's really the great thing. And so, What are you do? Well, you join organizations. I happen to be in there for maybe an information security committee, which is really Bizarre Bazaar guard guard. It's the
only audience I've ever spoken to wear half of them were packing weapons. But still you made a lot, a lot here. She's made a lot of prosecutors. You need a lot of almonds, goes along the line. So prudential's are good. Good to have it at catch break, have a PhD or whatever else on this line. But if you can't talk about, if you can't teach it, so no work on writing and speaking, I work with a lot of technical people. I see their stuff all the time and they're smart, but they sure as heck can't write about it. So write a blog, an article or if you're really adventurous them and I'm not, I'd
rather watch Buffy. Write a book. Okay, and then one for this conference, but it can be local car to start a small submit seeking proposals to conferences, volunteers speak at user meeting. Okay, and then, here's the most important thing. If you going to be good at this Equanimity a word, I really like and adversarial situation. Sounds very complicated terms. But the opposing counsel will try to get you nervous. Will try to get you to say the wrong thing and Heaven help you if you get upset or angry, you can't let that happen. Because it's just I'd like to say it's not personal. It's
just doesn't. So, where's the best place to learn? Well arguments over the Thanksgiving table with your uncle might work going to sign but probably the best way to do it is to find yourself on a pair of Doc. We're not everyone on the panel agreed. And the second thing is to take a debate class where you learn to do this kind of stuff. Okay. So, why wait, something just popped up about joining infosec. You can do that by going to be a website and look for the information security group. And it'll tell you where the lady. There says. There's a slight fee to join, but it'll
have all the information when they have meetings. And what advantage is there are to join him. It really is and the important thing to remember here. I mean, I worked with him for a long time without even realizing, I thought you'd be a lawyer to join the ABA. I mean, that makes sense American Bar Association, but in reality they have something called the associate membership. And so, the associate membership is in fact for technical people who for some bizarre reason want to hang around with liars. And so, what if I am? I pay and
an inference that the section that that I'm in it and Lawrence also. And it is is called, when you may also be in 4 hours. I don't know, but in a litigation but there's a section called science and technology and under Scientific Technology. There's a privacy group, I think Steve. Who's in the audience at artificial intelligence and Robotics, there's information security, which of the group in which I meant, where we talked a lot about just information security and all the laws that have to do with a lot of things. You can join there, but join as an associate. If you're not a liar.
Somebody, somebody asked a question about his looks like they've testified as an expert witness before and depositions at least and wants to know how to avoid. If you have something. How do you manage that? Is how do you manage your character? Assassination? That can be used by opposing counsel to discredit you spell character character, assassination and shouldn't be going on because it's not supposed to be personal, so that shouldn't happen at all. And you're the attorney who's defending, you should make sure that that gets shut down.
But if you're talking about the times where you may have a pint in the different way or with, contrary to what you're offering. Now, your position is, I would suggest that this makes me a well-rounded expert because I not committed to one position or the other. I can see it from both sides. And therefore in this case my opinion that it went left is is bad. A credible because I can see that it goes both ways. I have Justified to going right in other instances. Hope that helps, but it makes it tough for you. I was actually in a case as
the web and Google got better. I was actually in a case where the opposing expert the attorneys as working for found at the an opinion that was diametrically opposite what he was saying before, and that's a lot Leisure to do. Now that everything is online. You can find all this good stuff and he was kind of really Shook Up of that and he really didn't and and no one and no one really practice for that. But it it can really hurt hurt your reputation. As far as far as character assassination goes. I mean this see it's the responsibility of your attorney to not
let that happen what's called objection and all the sudden gets that but sometimes they do the weirdest things in the world. I did a case that had to do with open pit mining. Okay, I know nothing about mining other than the fact that the holes are awfully big, but the whole point was about mining equipment. These big hit that, you know, these things who's tires are ten times your rights, oakworth along this line, and all these things are interconnected. The computer knows how much dirt is in the shovel on whether some loader can actually carry it or something. And so everything's all
scheduled and you know, it all happen electronic with a very fascinating stuff and I was an expert witness, having it having to do with this technology but opposing counsel just kept it was ejected to my thing my presents because he's not a mining expert even though I'm not a minor. Why like I didn't get bothered by that. I mean it might also yesterday but it you know, my Council handle that argument but still it's a very end. I still remember he was so funny. This guy was the sky was an amazing piece of work. First thing. Is that, is that during
deposition? I'll tell the spray cousin, Howard deposition work during deposition which they made a terrible mistake and said, please tell us about your career and I said everything and they said yes and two hours later than I was stopped now. And so cuz I can do this for a long time. But one of the things they noted was when I'd actually stopped for a while. He said they did the other with expert with spring is here. Do you write secret code? And I said, well no, I said by the time I stopped programme see what's just becoming popular. But let me explain that. I
should meditate. The center of a standard x.509 that everybody in the world ever met and we can get a lot of questions from people about how to do something in the standard and a lot of times he's questions or phrase, the food. Okay, which is, it would just say, you know, which is Chico And I said, therefore I can read it even though I kind of program anyway, but I didn't think too much of that. And so at the Very end of the examination of me. He started writing either on a piece of paper, a c statement and I remember I met her under my breath test. You
never want the gun judge. And what do you write for? Like that wrote on a piece of paper to see statement? And then he asked me to explain it. Well, unfortunately, for 4 from you is that I really didn't know see and so I really could explain it and then they even cheated a little bit from the ministration, but I kind of guessed what it was and when it was all done. My the people I was working for said, well, we don't use that sees that and we don't use that particular piece of paper and I said, well no, I said I assume that they expected you to count to coach me on everything that you
use in terms of their API and they're called support. You didn't, you haven't we not had that conversation but they expected it. So that's why they didn't. So but the whole thing was, you know, here's a test, you know. I suggest is doing an entire purpose is Empire intent was at the very end of all my testimony where I had been really arguing that you can look at statements. You can look at API and figure out what they're doing, but you have to know the kids behind it. The whole point of apis. You don't know the code. But you know what? It's supposed to be doing
that. You can actually figure out what what cause we're doing. And he wanted to destroy that and in and that's how he chose to do it. And that's what I mean about the fact that I see. Now, I don't call that dirty fighting. He didn't say I was lying or anything like that, but he put me to a test and he put me to a test. I really, really clever test which I passed with flying colors, unfortunately for them, but it's, it's just the way I turn these. Are you have to realize the other side is being paid to win. Okay? Wedding is too effectively,
discredit your testimony. It's your test. The money they want to discredit not necessarily you and so you can't take that personally. You just really do the best job. You can to make sure that what you say is really the truth and therefore really kind of hard to discredit. I think we said hi. It is worth underscoring because it gives you to the extent that you end up working with lawyers. And the clients directly, you need to have a sense of the pressure. They're under investigation is is literally War. Somebody is going to win and somebody is going to lose,
and nobody ever wants to be the one. Who is it. It's just a terrible thing. So it's bad in a lot of different ways. So the expert is can be really critical and you need to keep that in mind when you deal with the attorney and when you deal with the client that these people are on earth, great deal of stress. Daughter. That's going to come in and win the day, but they've been living at this for a long time. And yeah, I just did it just like you said, I I remember and you talk about spoliation. The interesting thing about
spoliation. Of course, this is that the lawyers themselves can actually be hit penalties by the judge for spoliation. So long. The lawyer send a text in case is very, very seriously. And when I showed up, you were the opposite of relax because you had you, as you said, you had, you had this was the third. You were the third person. On this case, you had nothing to do with the preparation of evidence. And yet, if there's any problem problem, with the evidence production and in any spell, relation thing would have fallen order falling on
you. And in, in in there's a lot of pressure. So when your next free kind of, really have to recognize this pressure, and that's why I keep using this word. Equanimity, if anyone knows me. Is Matt May I am quite passionate. My, I'm yelling at Laura and all the time over the strangest things. Okay, but that's just the way I know I am, but I go at an absolute total different mode when I'm in the witness box and when I'm being deposed, I'll set the my hands. Don't dish it. I rest, I rest my hand and I and I do everything very considerately. I
just make sure I answer things correctly. And the other thing that I wanted to tell you, one thing, I am very bad at the lawyers. Yell at me, is that lawyers would like, to be able to adjust? And sometimes I answer a question too fast. And so they keep telling me and you should remember the same if they ask you a question. Take a beat beat beat than a answer. Give your lawyer time to say I object. Okay, don't just do it like me. I get into this dialogue with the opposing counsel, and I'm not worried about it. But still Maya, the attorney that I'm working but would really
like to get their objections on record and I'm not helping. So now there's a couple questions if you don't mind, yeah. Princeton what areas of technical expertise in Security in finding coming up in your cases such as data, security, networking security excetera because I do more than just security cuz obviously had a big battle about a p. I, I mean, I actually started early because I was interested in distributed processing. You have to secure it. The two things that the two things that I've gotten involved to with with that really
had to do with security in cryptography. One of them I've mentioned. Okay, which was this entire key escrow thing, you know, if you're going to encrypt you better be doing vs bro, you better be doing right? And another one was a mark been having to do with a patent case and it was all on time stamping and hash pain but working last night and so done that. But other things have just been based on my knowledge of fact that I've actually been in quote information processing in distributed systems. And in fact, even though I did x.509 I really was an OSI person.
So dizzy, that 7layers. You guys complain about how I led the effort on layer number 6, presentation layer. You can blame asn1 on me and we'll actually on an English question. One more question is, how do you get yourself visible to attorneys as potential expert witnesses, to start the journey to finish it. For me. I have found expert Witnesses, starting that way up because some of the areas that I'm looking for a really unique so it may not be something that it may be something that position that they
formerly held. I remember looking for Or it may be some visits a public publishing intended to stay away from that more, depending on the nature of the crime. Looking for, I'm looking for somebody with more Hands-On practical experience. So the nature of the positions they have held or helpful and see if we has actually I'm going to tell you we're out of time. But anyway, hang with lawyers, that's the major pointing to know where were they are hanging with him go to panels. That's the way it works. And by my
clock, we are out of time. So let me tell you, I got the Arizona, testimony case, not because of me, because a guy in my company. In Phoenix, Arizona went to a local session, local presentation. I don't even know what they were talking about. Okay, but one of the people on the panel with him was a lawyer. And when that lawyer was hired by the state of Arizona, to handle this case, he called this guy, cuz we're together and said, who do you know who might be an expert witness in this area and an ID. This person act that happens to be my fearless leader. Jacques Jacques
says, well, actually I know someone close to hand and so I was introduced. So just just that kind of thing. It can be your friends going out and doing it. I'm sorry. I just want to wait. I think you froze. No, I haven't. Okay. I just want to be clear to restate. My answer Google bring up LinkedIn connections as well. So we when I say Google, something is because it's been is subsumed in it. I just want to be clear about that. It's like it's like a Kleenex or Coca-Cola. I do not sell Coke products, okay.
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