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Expert Witness & Digital Forensic Services










 

Site Contents: © Peter Sommer, 2015 Not to be reproduced without permission

PO Box 6447  London N4 4RX UK

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In a civil case Reports by experts can perform a number of different functions.   Although the most obvious use is to provide immediate guidance of those instructing they can also be a strategic weapon in the stages in litigation prior to trial.   Instructing lawyers can decide whether it is better to present them informally as a “report” or more formally as an affidavit.

Where computer matters are concerned instructing lawyers can limit their costs to experts in a number of ways.  First,  it helps if the lawyer can be reasonably clear about their precise requirements, both in terms of content to be covered and the eventual audience.  Second,  it is usually best to discuss requirements and aims with the expert prior to formal instruction, as the expert may have suggestions or want to seek clarification.  Third,  most experts are prepared to re-use the contents of a report intended for one purpose so that it is useful in another context;  the main constraint of course is the need of the expert to remember that their over-riding duty when creating material potentially to be used in evidence, is to the court.

Typical instructions can include:

Technical Explanations of how items of information technology work; how ICT interworks with the structure of an organisation and its customers/stakeholders;  how various Internet institutions operate (for example how “publishing” takes place);  how documents and records are created.

Specific Examinations and Reports of Findings  Where the need is to examine computer systems and records against a specific agenda and report on the outcome, possibly with some analysis.  This may include the production of schedules,  chronologies and potential exhibits

Advice on the specifics of disclosure in relation to computers and computer records  For more information, please follow this link.

Opinion Evidence  Where the expert is asked to analyse a situation but also offer an opinion within his expertise which will be used to guide the court in reaching its decision.   This will need to comply with CPR 35

Meetings between Experts   Meetings can take place either because both parties wish it under CPR 35.12 or because they are ordered under CPR 35.7.  It is usually best if the agenda for such meetings is carefully framed, both to protect the parties and to ensure that experts do not stray into unwanted territory.  

Agreed glossaries,  technical explanations  One route to reducing litigation costs is to see how far it is possible for the parties to agree on definitions of terms to be used and to adopt common technical explanations.  This may require some interaction between experts for the opposing parties.

Testimony to be served on the court and the other party/Affidavit Production

Computer-aided presentations / in-court demonstrations of computer operations  In rare circumstances and in particular where a jury may be present,  it may be desirable to use computers to present part of an argument.  This may involve a slide show, an animated reconstruction or a live display of computers.   Experts can be asked,  in the first instance, for advice on effectiveness,   costs and practicalities; and can then either produce the desired results or procure those who can.
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The Expert Witness  Practice Direction under CPR 35 can be found here and the associated Protocol from the Civil Justice Council is here