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As we evolve into the information age, corporate business processes rely more and more on the complexities introduced by computer technology. The legal profession is no exception. The expert witness adept in information technology is now increasingly being used in litigation.
Information technology has long been used in the legal profession for everything from word processing to communications to research. Now it is becoming part of the litigation process itself. In corporate cases involving significant computer hardware, software, or network acquisitions where damages have occurred, the trial attorney must rely, in part, on the information technology expert witness in order to best present his client's case.
In some instances, the use of the information technology expert witness is the most important element in preparing and presenting case material. However, this expert witness can also be one of the most underutilized resources. There are two reasons why this might happen: the trial attorney is not aware of how to best utilize this type of expert's capabilities; and the technology expert, due to similar inexperience, does not contribute his or her specialized knowledge to the maximum benefit of the litigation process. Additionally, the expert witness is often brought in at the last minute, and can only provide general observations that have limited value. This frequently allows a skilled cross-examiner to discredit the expert witness' testimony.
In instances where an information technology expert witness is required, the expert's participation should begin during the phase in which you are gathering and evaluating the factual information from your client. In fact, a technology expert may sometimes be able to retrieve information which was thought to be destroyed from automated systems. Participation should progress throughout the discovery process, with the expert assisting as you gather and review the other side's evidence, and continue to the actual point of presenting the expert witness testimony at the hearing or trial.
The information technology expert can very often be of assistance early in the attorney-client fact gathering process, interpreting technical jargon and helping to determine which information is pertinent and which is not, providing you with the perspective you need in order to advise your client responsibly and plan your case strategy.
Once a tentative strategy has been mapped out, the expert can aid counsel in the discovery process itself. By definition, the expert is well-acquainted with the intricacies of information technology. The attorney should not be misguided into thinking that a familiarity with office automation technology in the law practice is the same thing. The evaluation and analysis phase is the area in which you should most encourage the technology expert to contribute to the litigation strategy, by offering critical observations gained from the distillation of the information gathered. This is an area in which many attorneys fail to sufficiently involve the expert.
These are some of the issues that must be considered when an information technology expert is included as part of your litigation strategy. Some attorneys, recognizing the role that the technology expert can play, are already utilizing these valuable skills in pre-litigation settlement negotiations, and even in the original contract negotiating process itself, as a means of litigation avoidance.