Communications of the ACM
The Laws of Computing
Expert witnesses require deep technical knowledge and strong verbal and writing skills, as well as the ability to think quickly and logically.
Credit: iLawConnect
The U.S. legal system relies on expert witnesses to interpret complex information and evidence. The ability to have an expert distill highly technical information into tangible concepts can be crucial to building a legal case, negotiating settlements and, if necessary, navigating a trial.
In recent years, knowledge of computing devices and digital technology—particularly in complex cases involving patent disputes—has emerged as a key area of law. "A growing number of legal cases require highly detailed knowledge of computers and technology, especially patent cases and disputes over trade secrets," observes Michael Mitzenmacher, a professor of computer science at Harvard University who has served as an expert witness for a variety of companies. "Experts in the computing field are increasingly sought after to help lawyers build and argue effective cases."
Expert witnesses require deep technical knowledge and strong verbal and writing skills, as well as the ability to think quickly and logically. Also needed is the ability to cope with tough questions and hostile interrogations, as opposing attorneys look for ways to trip up an expert witness and destroy his/her credibility. "Working as an expert witness is a tense and stressful task," says Andries van Dam, a professor of computer science at Brown University who most recently served as an expert witness in the widely publicized Apple-Samsung case.
Trials and Tribulations
Public perception of the legal system doesn’t necessarily jibe with the realities of serving as an expert witness. David A. Wilson, a San Jose, CA-based computer consultant and expert witness who specializes in mobile computing, GUIs, software development, and other areas, says most of his effort goes into writing detailed reports or rebuttals that often range between 200 and 800 pages, and answering dizzying arrays of questions in depositions. Rarely does a case go to trial, he says, but an expert witness assignment can drag on for years, "particularly if a lot of source code analysis is involved or there are questions about the validity of a patent."
The job of an expert witness is not to make a determination about whether a patent is valid or an organization or business has been wronged, Wilson says; "it’s addressing technical questions within the context of the law." For Wilson, who has been retained by firms including Apple, Microsoft, Novell, Red Hat, and National Instruments, the job can require many hours of poring over source code, engineering designs, or technical manuals. "Sometimes, the lawyers tell the expert witness what to focus on; other times, they leave you to formulate your own opinions without being biased by their thoughts," Wilson says.
A law firm will expect an expert witness it retains to support its position. That’s why van Dam says he only accepts cases he feels strongly about; consequently, he has only been involved in five cases over the course of more than three decades. "There are people who are 'hired guns' because they are willing to take pretty much any case that comes along," he says. "Some of them are looking to make a living working as an expert witness."
If the expert witness is deposed or the a case goes to trial, "it's extremely strenuous and time-consuming. It's so incredibly stressful because it is an inherently adversarial process," van Dam says. "Going up against a person who is skilled at legalistic reasoning is difficult." He says opposing attorneys will "pull out quotes from your writings and past comments and try to catch you in a contradiction, or presenting a different point of view."
Van Dam says a courtroom is a very different place than a classroom; it requires a "different mode of reasoning and explaining" that isn't always natural to him. Yet that's part of the appeal, he explains; "you have to be very quick-thinking, minimalist in your answers, and try to anticipate where opposing counsel is leading you so you don't get caught in a trap. It is a bit like playing chess, and having to anticipate moves and countermoves."
Courting Success
The fees paid to expert witnesses can be substantial, ranging from a few hundred dollars per hour to upwards of $1,000 per hour. Wilson says college professors are often sought after for their expertise, as well as for the perception they are respected, ethical, and distinguished. "If a case gets to a jury, it looks good to say that the expert witness is a professor of computer science at a respected university. There's an aura of trust associated with a professor. Legal teams are looking for any and all credibility they can get."
Wilson says serving as an expert witness is ultimately a roller-coaster ride through the computing and legal landscape. A case may involve friendly discussions and fascinating research, or descend into tedium or "mental warfare" as opposing attorneys try to discredit an expert source and, if possible, have his or her opinions tossed out. "In some cases, there's an incredible amount of pressure because millions and sometimes billions of dollars are at stake," he explains.
To Mitzenmacher, the expert witness system provides clarity to an often-murky world of technology and intellectual property. "The reality is that the complexity of computing and the complexity of the law create formidable challenges. If the system is working well, expert witnesses are an important component in gauging what is factually correct and what is accurate."
Samuel Greengard is an author and journalist based in West Linn, OR.
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