A judge once said to a colleague with whom I was trying a case, “My eyes glaze over when it comes to computers. I never use one.” The issue before the judge was whether our client possibly contributed to the breach of a VOIP phone system when hackers penetrated the system and ran up large long distance charges in a single night. The technology was relatively basic. And the answer was relatively unscientific: There was nothing our client was obligated to do, either contractually or by the rules of reason, that would have avoided the hack. A different party, the one who was suing us, had agreed in writing to cover any losses due to improper use. Which was a pivotal fact that was temporarily obscured in the murk of the judge’s admitted “glaze over” when it came to things technological.
The solution, in such circumstances, is an expert. Someone who can guide a judge or a jury step by step through the facts. Ideally, there should be sensitivity on the part of the expert that those listening to his explanation do not share his skill and training. A technology expert should:
· State his conclusions and reasoning in clear, jargon-free language; and,
· Make sure his opinions derive from his claimed expertise.
The “glaze-over” phenomenon is real. It happens everywhere that technology has taken hold. It leads, sometimes, to excessive deference. A “that guy must know what he’s talking about” rule that takes hold and can override even common sense. We have all experienced it. When the cable television technician shows up and starts drilling through our walls we defer to his judgment, without exploring whether there are better solutions that do not involve the destruction of our property. We do this because our eyes “glaze over” when it comes to cable hook-up. The kid with the tool belt can say anything, and we believe him.
A judge’s excessive deference to the other side’s technology expert is another reason to get someone on your side who really knows what he is talking about and can convey his conclusions with clarity. A judge whose eyes glaze over when the subject is technology may not keep your opponent’s expert to Daubert’s exacting standards. The judge, not willing to presume to make distinctions about what emanates from computer expertise and what does not, may permit a technology expert to opine about things that do not necessarily derive his skill and training. In the hands of aggressive litigators, such permissiveness can become a sword.
To take one example, again, from my own experience: A computer forensic expert opined not only that an email was transferred to an employee’s personal account; but that this was done for nefarious purposes, to steal the information contained in the email. The first statement was a perfectly correct use of expert testimony under Daubert. The second statement, though, was an attempt to hand the jury the crucial factual finding in the case, under the guise of expert testimony.
When a judge does not keep such testimony from the factfinder, it is up to your expert to counter it. There is opportunity here. Because if your technology expert can explain, again in clear and jargon-free language, that the other side’s expert has overstepped his bounds, credibility is destroyed. The other side’s expert looks like an exaggerator. Here, the judge’s failure to prevent the testimony has been transformed into a positive for your side. Your expert has made your opponent’s expert look bad, and there is a chance that the jury will discount not only the expert’s unsupported conclusions, but all of his testimony. You have won the battle of the experts, and with that, perhaps, the lawsuit itself.
A great case where a judge grappled with the limitations of computer forensic expert testimony can be found at United States Gypsum Co. V. Lafarge North Am. Inc., 670 F. Supp. 768 (N.D. Ill. 2009).
- Submitted by Tom Farnan -- contact me at tfarnanlaw@gmail.com