The Selection and Use Of Technical Experts In Computer Litigation

By Marc S. Friedman, Esq. and Stanley H. Kremen, CDP

Computer litigation usually involves complex technical issues. An attorney handling a computer matter typically cannot assess the technical aspects of his case. Judges and juries ordinarily lack the background to properly evaluate technical evidence. Arbitrators, who may have the technical expertise required, are usually lay people, unable to understand the legal issues in the case. The evaluation and presentation of a computer case obviously requires the use of technical experts who, among other things, can reduce complex technical concepts to terms readily understandable by non-technical people. This article addresses the need for technical experts and discusses the issues involved in their use as litigation consultants and witnesses.

Technical experts often are used by attorneys to help resolve computer disputes without costly, time-consuming litigation. If computer litigation proves necessary, the services of a technical expert are essential during pretrial proceedings and at the trial itself. This article examines the critical role of the computer expert throughout these stages. In addition, this article sets forth guidelines for selecting and using the expert computer witness. After all, the selection of a bad expert witness or the improper use of a good expert can, to turn a well-known phrase, cause defeat to be snatched from the jaws of victory.

What is a Technical Expert?

From a legal perspective, a technical expert is an individual who, by virtue of his or her specialized knowledge and experience, can explain, through competent testimony, a technical matter which lies outside the understanding of the average lay person. Unlike many states' rules of evidence, Rule 803of the Federal Rules of Evidence provides that an expert may base his opinion on facts and documents not in evidence, as long as those facts and documents are reasonably relied upon by experts in his field. Therefore, in a computer case, and particularly in federal court, an expert witness becomes a more powerful tool than a lay witness whose testimony is restricted to facts in evidence.

What Does a Computer Expert Do?

A computer expert makes the technical aspects of a computer dispute understandable to non-technical people. By way of example, a computer expert may explain why a computer system's failure results from defects in the operating system, rather than from problems with the hardware or application software. In a case where it is alleged that the computer has insufficient information capacity, the expert can establish the basis for the claim and explain why, as a result of system capacity, the computer is useless to a businessman. At times, an expert may conclude that a claim is weak or even baseless, thereby resulting in a party's decision to refrain from suit. In these cases and others, the expert can be instrumental in formulating a strategy. If a lawsuit is filed, the computer expert's assistance is important to pretrial discovery and preparation. At a trial or arbitration hearing, a computer expert's testimony is usually a sine qua non for victory.

What Computer Disputes Require Technical Experts?

Among the computer disputes which usually require a technical expert are:

When the buyer claims that computer system or any of its components were either
never delivered or were defective.

When a user claims that services were either never delivered or were delivered improperly.

When a dispute arises regarding the value of goods or services.

When one party to a computer contract contends the contract was breached by the other party.

When computer fraud, negligence, or malpractice is alleged.

When it is necessary to appraise a computer related asset.

When a party attempts to establish his damages.

When a party alleges software piracy, the theft of trade secrets, or patent or copyright infringement.

Use of an Expert in Resolving Computer Disputes Without Litigation

Most computer disputes never go to court. Due to the high cost of litigation and the uncertainty of the outcome, they are either abandoned or settled. Settlement of a computer dispute does not always involve the payment of cash. For example, a vendor may offer to replace or enhance a defective computer system. The offer may take the form of a discount on new equipment. That vendor could offer to supply peripheral equipment at cost or to provide free maintenance or additional software.

A technical expert may enhance the chance of reaching a favorable settlement. Often the client is unable to define the exact nature of the problem or to evaluate a proposed solution. In many instances, the client is not sufficiently computer literate to be able to properly communicate with a vendor. An expert who understands the technology can be an important communication link. With an enhanced technical perspective, an expert will work with an attorney to help him and his client understand the technical merits of the claim. An expert familiar with computers can assist an attorney in first understanding and then evaluating a vendor's settlement proposal. The expert can often evaluate and propose possible concessions to effect movement in stalled negotiations. Finally, because it may prove necessary to include technical details in a settlement agreement, the expert's help is needed in preparing the agreement.

Where the principle objective is to avoid litigation, the question often arises whether to use an in-house computer expert who may be less expensive, or an outside, independent consultant. The answer usually depends upon the capability of the in-house expert. Companies with large computer systems normally employ many programmers and other data processing personnel. Often, this expertise is sufficient to satisfy the settlement objectives. However, smaller companies usually need to retain an independent expert. The expert required for this type of work is different from the one required for litigation. An expert assisting in settlement negotiations does not have to convince a judge or a jury. Eloquence and good appearance, while desirable, are not mandatory. However, the expert must be competent enough to assist in making correct decisions.

Use of Experts in Pretrial Proceedings

Computer litigation requires retention of at least one independent technical expert. To be credible, independence is an essential criterion. Furthermore, the expert's credentials must be impressive and unimpeachable. The expert must be able to produce work of such competence that the results cannot be in doubt. An expert's report is usually submitted to the other side during pretrial discovery, and at times, because of its overwhelming nature, the opposition offers to settle or withdraw from the proceedings. In a courtroom, an entire case may hinge on the credibility of an expert witness.

During the pretrial preparation phase, an expert helps the attorney understand the dispute from a technical point of view. He renders an initial opinion of the merits of the case. This usually results in a decision whether or not to continue with the matter. Sometimes, an adverse opinion results in discontinuing the expert's services.

At times, more than one expert may be required for computer litigation. For example, one expert may specialize in hardware problems and another in application software. These experts usually work together to produce the opinions required at trial. For example, a hardware expert may require the assistance of another expert more conversant with a particular operating system. Sometimes, an expert because of his knowledge of the computer industry can be instrumental in selecting other experts. A primary expert can interview the additional operating system expert and evaluate his qualifications. In fact, some of the secondary experts could be employees or subcontractors of the primary expert.

The pretrial work of a computer expert proceeds in two phases--investigation and preparation.

During the investigative phase, a computer expert gathers facts. He may have to perform some research and experimentation which may involve operating the computer system and examining the output. The expert interviews the client and potential witnesses. When the investigation is complete, the expert forms an opinion and generates a report.

In light of his special technical expertise, a computer expert can provide an extraordinary range of services which can enhance the chance of victory. During the pretrial preparation, an expert reviews the pleadings for factual accuracy and may suggest useful changes. An expert can suggest sources of evidence unknown to the lawyer or even case strategy. A computer expert assists in preparing interrogatories and document requests which are designed to address the technical aspects of the case. An expert helps prepare for depositions. An expert helps prepare other witnesses for depositions and trial. Often, the expert attends depositions of witnesses. This is desirable since the expert can provide ad hoc information to an attorney which could make the deposition more meaningful or less damaging. Normally, the expert is deposed as part of pretrial discovery. An expert helps evaluate the technical reports generated by opposing computer experts. Sometimes, an expert is asked to investigate an opposing expert in an effort to impeach that expert's credibility. Finally, an expert assists in preparing technical documents and exhibits for trial.

Sometimes, just prior to trial, an attorney will ask for a computer expert's help with jury selections. The attorney needs the expert's assistance in providing a list of questions to ask perspective jurors during the voir-dire. It is important that a person with expert knowledge of computers not be on the jury. Other jurors would look to this expert juror for guidance during deliberations. Suddenly, a jury of six (or 12) becomes a jury of one. It is important that such jurors be weeded out.

Use of Computer Experts in Trial Proceedings

While always telling the truth, the primary objective of a technical expert at a trial is to testify in such a manner as to cause a favorable outcome. A second objective is to assist the attorney during his examination and cross-examination of witnesses.

Before being allowed to testify, a technical computer expert must be accepted by the court as an expert witness. During the voir-dire, the attorney elicits from his expert his qualifications, and the opposing attorney is allowed to cross-examine and challenge these qualifications. Sometimes, the opposing attorney will offer to stipulate as to the expert's qualifications. This "generous" offer should be rejected; a jury could be favorably impressed by the computer expert's credentials. Once the expert is accepted by the court, testimony can begin.

During direct examination, a computer expert will have to educate the judge and jury. An expert witness must have the ability to reduce complex technical computer issues so as to be understandable by a layman. Such an expert, for example, may be required to explain in lay terms such complex matters as object code, source code, programming language, etc. The expert's testimony must present both facts and opinions.

During testimony, the expert uses exhibits and materials prepared before trial. It is important that exhibits be presented because they are placed in the jury room at the end of the trial, and remain as a constant reminder to the jury during its deliberations. Sometimes, an expert witness provides a hands-on demonstration of the computer system to the court during direct examination.

A computer expert's testimony can severely damage the opposition's case. Consequently, opposing counsel has no choice but to discredit the very fabric of such testimony. During cross-examination, the expert computer witness becomes the opposition's enemy. The opposition will challenge every fact and every opinion. Improper procedures and data used during testing will surface. The opposition will use the "garbage in-garbage out" theory. Attempts will be made to force the witness to provide conflicting facts and to draw conflicting conclusions. The witness will be asked to evaluate hypothetical situations. He or she will be asked about industry standards which could potentially dilute the damaging opinions presented during direct examination. If the witness is not truly independent (e.g., is a current or former employee of or consultant to the client, or enjoys a special relationship with the attorney), opposing counsel will attempt to show bias, thereby discrediting the witness. The opposition may attempt to intimidate the witness, and hope for an angry outburst or, at least, for flustered speech. Often, cross-examination may not be able to recover the ground lost. During direct examination, an expert witness must exude competence and integrity. During cross-examination, the expert must appear confident and unshakable.

What Are Some Things About Which Experts Testify?

Technical experts have already provided testimony pertaining to the following computer-related issues:

Specific industry standards for performing certain tasks

The various purposes for which computer systems are used

The interpretation of programs

The quality and completeness of particular programs

Whether or not a computer system was properly installed

Whether or not a salesman made false representations

Whether or not a computer system, as delivered, was responsive to a proposal

Whether or not a computer system is a "turnkey" system

Whether or not software and hardware can be considered to be a single system

Whether or not a delivered computer system performed properly

The appraisal, valuation, or marketability of particular software

The use of devices to reduce error or improve accuracy in computer-controlled processes

The adequacy of data security or contingency and recovery procedures

The ability to falsify a computerized process

The copyrightability or patentability of computer software

The degree of similarity between two software systems

The Qualifications of a Computer Expert

In technical fields other than computers and data processing, selection of an expert is often based upon a person's academic credentials rather than his work experience. The opposite is true in computer technology. To understand the reasons for this, one must examine the makeup of the computer industry.

Among the areas of specialization in computers are academia, research, hardware and device development, systems software development, and peripheral areas such as operations, customer support, maintenance, sales, etc. To be considered for academic work in computers at a college or university, a Ph.D. or equivalent is almost always required. A Ph.D. is also an asset to an individual applying for employment at a major research establishment. For most other positions in the computer field, a Ph.D. is not required, and, in many instances, possession of this degree can mitigate against employment. Terms such as "overqualification" and "corporate salary structure" are used to justify not hiring these well-educated individuals. Managers without Ph.D.'s are sometimes reluctant to hire individuals having Ph.D.'s. Very often, a candidate who earned a Ph.D. in any specialty must remove this information from an employment resume in order to find a suitable position. This is not the case with the Master's Degree. An M.S. or M.B.A. is a valuable asset to those seeking employment. Companies generally pay higher starting salaries to applicants having this degree.

Individuals in the computer field have become experts mostly due to their work experience. Computer technology is one of the few areas where professionals can attain very high salaries and consulting fees even without a college degree. This is due to the extraordinary demand for computer professionals. American business depends upon computers. The need for systems analysts and programmers far exceeds the supply. Companies employ any individual qualified to solve their computer problems regardless of academic credentials. The same is true regarding the use of computer consultants. Large companies tend to apply the same standards in securing consulting services as in hiring permanent employees. Smaller companies take a more pragmatic approach. They almost always apply the standard question: "Based upon your knowledge and experience, what can you do for me?"

Computer technology is relatively new. Companies began using computers in the late 1950s. However, the technology was greatly influenced by the Apollo Moon Landing Project and, in the 1960s and 1970s by the Vietnam War. In the 1950s and 1960s, only the largest companies owned computers. Today, computers are owned by most small businesses as well as by millions of individuals. Most good programmers today have gained expertise through practical experience. During the 1950s and 1960s very few universities had a computer science curriculum. Today, universities provide degree programs in computer science. Computer technology has been a part of the academic community for a very short time. Generally, computer scientists with impressive academic credentials have very little commercial or industrial experience. Furthermore, these people lack required knowledge in peripheral areas such as accounting, business management, and operations research. Yet, if a true expert, who also has impressive academic credentials, can be found, his credibility will be greatly enhanced. However, emphasis must be placed upon a specific area of expertise and work experience. An expert's experience with a particular system makes his testimony more valuable. This expertise would probably derive from specialized training received in commerce or industry rather than in school.

The Institute for Certification of Computer Professionals is a nationally recognized organization which conducts several different certification programs for individuals working in the computer field. In addition to establishing minimum qualifications for certificate holders, the ICCP enforces a strict code of ethics. The following are the objectives of the Certificate in Data Processing (CDP) program:

Establish high standards for data processing personnel by emphasizing a broad education framework and practical knowledge in the field as desirable personal objectives.

Establish a method to measure knowledge appropriate to the management of data processing.

Establish a method whereby society can identify those individuals having knowledge considered important to the management of data processing.

Lay a firm foundation for the continued growth of the data processing field and for personnel within the field seeking to attain positions of leadership.

To be eligible for the CDP, a candidate must have a minimum of five years experience in computer based information systems (academic degrees--Bachelor's or graduate--can substitute for up to two years experience), must be recommended by a CDP holder, must pass all five sections of the CDP examination, and must subscribe to the ICCP Codes of Ethics, Conduct and Good Practice. The CDP examination is composed of the following sections:

Section 1. Data Processing Equipment

Section 2. Computer Programming and Software

Section 3. Principles of Management

Section 4. Quantitative Methods

Section 5. Systems Analysis and Design

While the CDP is not equivalent to a license to practice in the computer field, it is very well recognized as denoting data processing expertise. In fact, the American Council on Education has recommended the awarding of college credits for those who have passed the CDP examination. Certificate holders receive 36 credit hours based upon this recommendation. A recent ACE survey showed that more than 90 percent of all educational institutions grant credit based on the CDP examination. A CDP certificate holder has impressive credentials with expertise based upon experience.

Although a court may require that an expert be a computer professional, it does not normally require the expert to specialize in a particular area. It is possible for an expert to testify regarding software written for a particular computer even though the expert has no experience with that computer. Furthermore, a business systems analyst with no programming experience maybe permitted to testify with regard to the quality of completeness of a particular program.

Selection of a Technical Expert

First, an expert must be located. A cardinal rule is that the expert must be independent. If an attorney uses the client's data processing employee (either current or former) or computer consultant, the case could be lost before it begins. Whether true or false, opposing counsel will point out that the captive expert's opinions are derived from a biased viewpoint. The expert's credibility is then damaged. Therefore, the attorney must make the extra effort and search for outside expertise.

The primary method for locating a technical expert is referrals from other attorneys. The recommending attorney is often a colleague or acquaintance. Usually, attorneys who practice computer law or who have been involved with computer cases have a list of experts that they use. Patent or copyright attorneys also use technical experts in the computer field. Finally, attorneys working for large computer companies may be able to recommend a technical expert.

Of course, there are other ways to locate a suitable technical expert. You can consult advertisements in law journals, listings in litigation consulting and expert witness registries and published articles, seminars, etc. Computer experts with academic credentials (but, perhaps with no industry experience) can be located through the computer science departments of universities. Similarly, computer experts with substantial commercial and industrial experience often can be located through large management consulting firms or large public accounting firms.

An attorney contemplating filing a computer case should immediately lineup his computer expert(s). Known computer experts should be contacted, curriculum vitae (resumes) should be collected, and the experts should be interviewed and evaluated.

The following represents the most desirable qualifications for a technical expert in a computer matter:

Expertise in the particular area of interest

Expertise in the particular computer of interest

Expertise in the particular programming language used

Knowledge of legal precedent in computer cases

Well dressed with excellent appearance

Speaks well and can explain technical issues to a layman

Care must be taken to match the computer expert to the requirements of the case. For an example of what could happen if a mismatch occurs, consider a matter where a buyer claims that purchased software does not function properly. The vendor claims that the software works and the buyer's problems are due to operator error. The buyer has chosen an expert who is a business systems analyst. This expert has selected and supervised the installation of other vendors' "turnkey" systems for many clients. However, the expert has no "hands on" computer experience. While this type of expert is capable of performing an EDP audit of the software, he maybe unable to render an opinion regarding the effects of errors due to pre-existing data found in the files. Opposing counsel then uses the "garbage in- garbage out" theory, and attacks the computer expert's credibility by claiming that his test methodology was faulty.

Once a good computer expert has been located, the attorney must interview the expert personally. A computer expert should never be engaged as a result of a telephone interview. At the face-to-face interview, the attorney must go over the expert's resume in detail. Resumes are normally written in generalities. Client names and contract dates are almost never included. The attorney should obtain specific information from the computer expert regarding the nature and extent of his specific engagements or other experience. Nothing should be left out. Most importantly, references must be checked.

Other purposes of the interview are to determine whether the expert speaks well and understands the concepts of computer litigation. Is this the expert's first case? Does the expert have the ability to explain complex technical issues in simple terms? Perhaps the most important consideration is whether the computer expert is likable. Is the expert still or withdrawn or is he or she a person who the judge or jury will like? The attorney should relate the facts of the case to the computer expert. The expert should be asked for preliminary observations, as well as what his or her approach to the case would be from a technical perspective. Are the client's objectives, the attorney's objectives, and the expert's objectives the same? The attorney should discuss fees with the expert and the expert should be required to estimate fees and costs.

Finally, it may be valuable to have your client meet with the proposed computer expert. A lay client often draws greater insight into a proposed expert. Additionally, the client may be able to answer questions regarding the underlying computer transaction.

Directing the Work of a Technical Expert

The work of a technical litigation consultant in a computer case can be very expensive. Yet, in computer litigation, it is absolutely necessary. When counsel fails to control his computer expert, that expert may far exceed the scope of work required for the case, often resulting in unnecessary delay and needless expense.

The expert is responsible for formulating a technical approach to the case, but the attorney retains responsibility for the entire case. An expert acts as consultant to the attorney. The expert must perform only those activities required by the attorney based upon the specific issues involved. Expert consultants normally understand this obligation. Yet, some attorneys are content to allow experts to proceed with their work entirely without direction.

Once a computer expert is engaged, the attorney and the expert must work together to formulate a circumscribed, cost-effective approach. Just as with any other project, a budget and a schedule must be prepared. Meaningful milestones must be established for measuring the computer expert's performance. However, adherence to schedule often is more important than adherence to budget. Failure to meet an interim deadline may disrupt the entire performance schedule. Yet, if a reasonable number of meaningful milestones are established, interim corrections can be made to place the entire project back on schedule. In the worst case, if an attorney knows that the entire schedule is slipping, he can attempt to have court-imposed deadlines extended. In order to maximize an attorney's options, it is important to be aware of scheduling problems as early as possible. Surprise is the attorney's worst enemy.

An attorney must therefore ensure that the information acquired is relevant and that the client's money is not wasted. At all times, the computer expert must understand what the client and attorney expect, and the attorney must understand what the expert needs to accomplish his work. The technical investigation as well as the pretrial preparation must be subject to the same stringent controls as a major project for a large corporation. If an expert is directed properly, the work produced will be precisely what is needed for the technical aspects of the case.

Costs of Using a Technical Expert

During the pretrial phase, the cost of a technical computer expert depends primarily upon the nature of the technical work product required. The expert's report is essential to careful pretrial preparation. The complexity of an expert's report can range from a simple letter to a large bound book. The exact nature of the report is determined by instructions communicated to the expert prior to beginning the investigative phase. Budgetary constraints tend to cause the production of smaller and sometimes sparse documents. Left to their own discretion, computer experts often produce thorough reports.

A typical expert's report in a vendor/client dispute -- where the client claims that a "turnkey" system is defective and not responsive to his needs -- will have the following sections:

Test Report--Description and results of experimentation performed by the expert using the client's computer system. This section includes tables of all test data, and screen printouts and printed reports obtained during testing. It contains some conclusions, but normally does not contain opinions.

Source Code Analysis--In the event that the vendor provided the client with program source code, this section provides an analysis of the coding with regard to program validity, performance, maintainability, merchantability, suitability for a particular purpose, and adherence to state-of-the-art programming standards. Sometimes, this section contains program flow charts, data flow diagrams, or module hierarchy charts (HIPO) which have been generated by the expert.

Implementation Analysis--An analysis of adherence or non-adherence to vendor proposed or contracted budgets and schedules. This section normally contains several spreadsheets with comments by the expert.

Damage Report--The expert may also be asked to provide a detailed analysis of monetary damages to the client along with opinions and conclusions regarding the cause of the damage.

Position Papers--Technical treatises supporting important technical points of view.

Opposition Analysis--Analysis of opposing expert reports and depositions of opposition witnesses.

Overall Technical Position Report--A section designed to bring all other sections together. It consists of the expert's opinions, inferences, judgments, and conclusions supporting the client. This section uses all preceding sections as sub-sections.

The total pretrial investigative phase could involve between 350 to 400 hours of an expert's time, if the work is performed according to standards indicated above. Even if it is determined, after minimal investigation, that the merits of the case do not warrant continuing, such minimal investigation will take between 10 to 40 hours of an expert's time. Sometimes, there is a substantial investigation that only proves that the case has no merit. In that event, a report is not usually prepared. Yet, the expenditure of up to 75 hours or more of the expert's time could still be required.

Similarly, during the trial phase, the cost of a technical expert depends upon what the expert is required to do. In any event, the cost of this phase usually is much less expensive than the pretrial phase. An expert's testimony could take as much as three days. In the worst case, the attorney could require the expert's help throughout the entire trial. This is highly improbable. Usually, only the expert's testimony is required. Typically, this would involve one day of the expert's time.

An arbitration proceeding is considered less expensive. With arbitration, discovery requirements are greatly reduced or absent. An expert's report usually is not necessary. Depositions are normally not required. The hypothetical case discussed earlier could therefore require substantially less expert-hours when submitted to arbitration.

Conclusion

Technical experts are essential in computer litigation. They are needed because the complex technical issues are beyond the knowledge and understanding of the average layman. Not only are experts essential in cases which go to trial, but they can be valuable in attaining large pretrial settlements. Experts are as important during pretrial proceedings as they are during the trial itself.

Computer experts have varying levels of experience in many areas of expertise. Locating the proper expert is essential to producing a favorable outcome. An expert must have the right credentials and qualifications to be credible.

Computer litigation can be very expensive. The technical expert can command a major portion of fees paid by the client. In order to ensure that an expert produces the most ideal work product and does not waste the client's money, his or her efforts must be carefully directed by the attorney. The work performed by an expert must be balanced against budgetary considerations and litigation necessities.

Proper use of experts in computer litigation is essential to a favorable outcome. The attorney and the expert work as a team to produce the desired result. Together they provide a case with quality, credibility, and clarity.

BIBLIOGRAPHY

1. Bender, "General Evidentiary Principles," Computer Law, Nov. 1984, § 5.02[2].

2. "Codes of Ethics, Conduct and Good Practice for Certified Computer Professionals," ICCP Publication, Chicago, IL--1977.

3. "ACE Approves College Credit Equivalency for Two ICCP Exams," AICCP Newsletter, Vol. 5, No. 1, January 1988.