In civil and federal cases involving technology, the reviews and presentation of expert opinions can become complex.

The trick is to get someone who can sort out all the information, put it into a concise report and explain everything in an apples-and-oranges comparison. This is hugely important because the average judge, jurist, public utility commission member and even many lawyers do not understand the depth of technology being disputed.

Due to the nature of technology and networks, the disputed costs usually go into the millions of dollars. There also have been wrongful death cases like one I was on involving a man calling 911 and getting a recorded message saying he was dialing an invalid number. In that case, the municipality paid out a seven-figure settlement because someone didn’t do his or her job in making sure a database had all the addresses in it.

If there is a network or system failure, patent infringement or project dispute, chances are it is a multimillion-dollar lawsuit sometimes with a countersuit. When there are millions of dollars on the table, both sides are eager to sweep it up and claim it is rightfully theirs. Having an edge to win the decision is paramount.

Win, Place or Show

Tip: Get someone who can understand and then explain your complex system or network infrastructure in everyday terms.

One of the most high-pressure meetings I was ever in was at a racetrack with an owner, CFO and legal counsel reviewing a satellite-based initiative they were financing. They wanted to ensure they were moving in the right direction on a project under dispute that included selling off their excess satellite bandwidth with financial companies to transmit their market data.

Unfortunately, their consultant set them up with a level of service that would not be acceptable to the financial and brokerage companies.

Trying to explain the technical service levels and their associated costs would not have been successful. Instead, I said at the last minute: “Just like you, people in the financial and brokerage area like to go with winners. On the service level of satellites, there are three levels just like win, place and show. You have show.”

At that point, all the racetrack executives understood and decided the project was not feasible.

If they went with the higher service, there would be no profitability in the venture. Giving a concise summary that everyone around the table could understand made it possible for them to make a tough decision that immediately cut their expenditures on a project that would not have gone anywhere. The strategic partnership ended at that moment.

The same principles apply to developing testimonies for legal disputes. You must have someone who can look at the situation, pick out the relevant information and then craft it into a concise and convincing presentation to strengthen the legal argument.

In computer forensics or technology forensics, that includes communication networks. Services, information and data needed for evidence has to be processed correctly. There are five steps in the process of forensics as applied to technology:

1. Collection
2. Preservation
3. Analysis
4. Presentation
5. Archiving

In the collection process, something as innocuous as shutting down a computer could actually damage the evidence you want to preserve. According to forensics author Christopher L.T. Brown: “Almost 50 files are changed in some way on each boot of the Windows XP operating system and five or more new files are created.”

It is critical to understand these nuances when going about collecting and preserving information. If your company has gotten into a lawsuit or has received an audit from the SEC, you should get someone who understands the collection and preservation process from a litigation standpoint. You shouldn’t get your systems administrator.

Another reason to get someone from outside your organization is that people on the inside might part of the criminal activity. In the case of a false bomb threat at a school, the “inside people” didn’t understand the capabilities of the payphone technology. They were trying to hang a student with a felony he did not commit.

This incident happened three weeks before Columbine. The school administrators wanted to make an example out of this student who turned out to do nothing wrong. The student just reported suspicious activity to the principal as he should have. The school administrators came to a wrong conclusion about a payphone’s ability to accept incoming calls.

While a sticker on the phone said it could not, in fact it could accept incoming calls. Before investigating the facts, they decided this was just a senior prank to get people out of the building early. They wanted to prosecute this senior for fabricating the story. The bottom line is he stuck to his story and even took a polygraph test. We also proved that the payphone could accept incoming calls. The charges were dismissed.

Tip: Do not listen to all the “experts” at your company or your vendor. Get a second opinion that’s objective. Get it fast.

Lawyers Are Not Technologists

1. Developing a list of what is needed for defending or prosecuting a case
2. Researching relevant information and building a report
3. Pointing out critical information and how it relates to the case
4. Developing questions to ask the opposition
5. Prioritizing the data and electronic “artifacts” for inclusion as evidence
6. Developing the presentation of that evidence
7. Developing and delivering testimony
8. Reviewing and analyzing the opposition’s testimony
9. Providing testimony and exhibits that support the legal arguments

Carlinism: The use of expert witnesses in technology cases can only enhance the strength of the argument. In cases involving technology, the trick is to make the complex technology simple rather than making the simple technology complex.