You've heard your job description many times on TV and in the movies: "... to tell the truth, the whole truth, and nothing but the truth." Witness testimony must be relied on as being truthful. The truth starts at the same time as the investigation and continues throughout your testimony in court. Misrepresenting the truth or getting caught in a lie destroys your credibility and may also destroy the case. An expert with a credibility problem is a problem (to future clients). Your obligation isn't to support a lawyer's theory unless the e-evidence supports it.

In court or deposition, if you don't know the answer to a question, don't try to bluff your way through an answer. Admit that you don't know before someone points it out. Imagine that during a brutal cross-examination, opposing counsel asks whether you understand the theory of GET SMART. You don't have a clue, but are afraid to admit it, so you say Yes, desperately hoping that the next question gives you a hint. Bam! Counsel destroys you by saying that no such theory even exists. You won't recover from that mistake.

If you cannot answer a question for any of the following reasons, don't. Be respectful in your response by stating why you cannot respond:

Whenever you introduce and explain e-evidence in court, as an expert, you can safely assume that someone will try to pick you apart bit by bit. (Yes, it's a pun, but it's true.) The good news is that if you have command of the facts and can brilliantly explain the basis for every opinion in your report, there's no way you can be picked apart successfully in the eyes of the jury. The jury may think that you're being treated unfairly, which is a good thing for you.

Being irrefutable also involves confirming that the chain of custody was maintained at all times. An incomplete or broken chain is similar to a broken mirror: It cannot be undone. So, from the start, handle all data and devices of every case as evidence.

Your invoice is a form of documentation. Your client is interested in how you bill for your services, of course, but your bill may also be examined in court. Keep a detailed log of your work so that you can submit a detailed invoice. Dates and descriptions must be consistent with your testimony.

For several reasons, expect questions stemming from or about your bill for expert service. Opposing counsel looks at dates, descriptions of services, and hourly rates, and notes who is paying the bill. Be sure to check your invoice for accuracy. You can too easily make a mistake that may seem trivial to you but becomes magnified out of proportion in court. For example, if the dates you record don't match dates in your report, how do you explain your sloppiness?

You also have to consider the issue of how much you charge. If your hourly rate is unusually high, you look like a hired gun. If your rate is too low, you look unprofessional.

Expect to refer to your written report during testimony, for example, to refer to all the work you performed, how and when you performed it, and which inferences you made. Working backward to the time when you're writing the report, keep in mind that you're writing it as your own memory aid as well as for others. The report helps jog your memory when you most need it.

If the opposing side also has an expert witness who was deposed or who submitted a report that you disagree with, you report should explain your disagreements with that expert's opinions. Refuting another person's expert opinion can be fun in a wacky sort of way, so don't dread doing it. As always, you need to be polite and respectful of the other person's opinions. It may help to explain how that person may have made mistakes, but don't push the issue. If the other expert's opinion seems like it was bought and paid for, don't try to justify or rationalize it. Then use that opportunity to reinforce your correct procedures, analysis, interpretations, or whatever relevant information you have.

Nonverbal communication establishes rapport with jury members so that they're more likely to be receptive of your verbal communication. Your nonverbal behaviors may win the trust and confidence of jurors by projecting a sense of authority, integrity, alertness, and other positive characteristics.

Appearing relaxed and confident is much easier to do when you truly feel that way. If you're nervous, trembling, or hyperventilating, those aren't good signs. Of course, if you look comatose, you're taking the relaxed look too far.

Another nonverbal cue is your response rate to questions. Wait until the lawyer has stopped talking, think for a moment, and then start to answer. Don't jump in. Interruptions play havoc with the court stenographer, who has to record everything that's said, and you look argumentative to the jury.

You're a performer on the witness stand. You're probably going to explain complex technical issues in nontechnical terms or by using analogies. Worse, you may be doing so after lunch, when the jury's attention and interest aren't at their highest level. No matter what the conditions are, you should maintain eye contact with the person questioning you or the jury. Don't look down, up, or away.

Eye contact doesn't mean staring someone down or trying to burn them with your relentless gaze, no matter how strong your desire to do so. You have to stay in control and avoid showing weakness or hesitancy, and never roll your eyes, no matter how stupid the question.

Dress for success in front of a judge and jury. You may not like it, but you can't change it. Lieutenant Columbo was an excellent detective. James Bond achieved his missions. Neither of these infallible guys, however, should be your role model for courtroom wear. Avoid extremes in your clothes, shoes, hair, and, if applicable, jewelry, manicure, and makeup. You don't want to startle anyone. And, as the judge warned Joe Pesci in the movie My Cousin Vinny, wear something made out of cloth. That movie may have dramatized that an improper way of dressing insults the judge and the integrity of the court, but that drama is real.

You want to look well dressed, but not flashy or vain. You can safely assume that silver-tipped alligator boots and Birkenstock sandals aren't appropriate footwear. Closed-toe shoes work best.

The key principle is moderation. You don't want the way you look to interfere with what you're saying to persuade the jury to accept your expert testimony.

It happens. Some professionals become retired on active duty (RAD). Your credentials are your credibility. In addition to getting certified (see Chapter 18), you should attend seminars, webinars, courses, and similar events to maintain your certification and stay current in your profession. You should also check out our blog for up-to-date information.

Several computer forensic and e-discovery journals and other blogs that you can visit are a helpful part of your routine. See Chapter 18.

As with everything else you do, your résumé may be reviewed in court, or you may be asked to verify how you keep yourself informed. Have something credible to report.

Getting a call for your expert services isn't like taking an order for a pepperoni pizza with a 30-minute delivery guarantee. Turn down cases that discourage thoroughness or that have you on an impossibly tight budget. If you accept a case under such conditions, no one will care or consider that you did the best you could under the circumstances.

There are no superheroes in court. Justice may be blind, but it can still see things your way if you're right for the investigation.