Quoting Internet Sources in Expert Reports

A reader contacted me this week with a warning about quoting from Internet sources in expert reports. My main concern has always been with providing correct attribution but as experts, other issues should be addressed as well. Richard O. Neville, of Fort Myers, Florida gave me permission to share his experience with you, as I think this is a caution all experts should take into consideration when creating their expert reports.

Increasingly, I quote Internet sources in expert reports, and see other experts doing the same. However, there is a potential drawback that has led me to develop a hard and fast rule: “Always make a printed copy of the material before quoting it in a report or other document.”

I learned about this the hard way when testifying about information I had put into an expert report, and whose Internet URL I quoted for each separate item. On cross-examination, the lawyer produced printed copies of the sites I had quoted, but showing different information. Since he never offered these sheets as hearing exhibits, I don’t know where the discrepancies occurred, but it was still effective impeachment, and cast doubt on certain conclusions.

More recently, I looked at a site and forgot to print a copy. When assembling my expert report I returned to the site for confirmation, only to find that the information I wanted to quote was no longer there, because the company had been sold. I even used “The Wayback Machine”, a site that allows you to access outdated copies of a site, without success. Evidently the new owners had trashed the old information.

So, a hard copy (on which your computer will automatically print the site address and date accessed) is the safe way to quote source information from the Internet. And look at the other side - ask the opposing expert to produce a hard copy of any Internet sources relied upon or quoted.

Expert Documents Could Say More Than You Intended

Have you heard of "metadata mining"? Basically, it means looking at the underside and history of an email, file, or electronic document.

In today's Daily Business Review, Jessica M. Walker writes about the use of metadata mining in the legal world and the ethics and case law involved:

"Metadata -- the so-dalled "DNA of documents" -- is typically hidden from view. But procedures ranging from simple mouse clicks to more invasive tactics involving special software can reveal almost everything about a document and its creation, including the authors, their comments and all changes made to the document."

So with files and even email, it is wise to start from scratch rather than revising or fowarding. If you forward an email and blind copy it to several individuals - if someone knows how to look, they can see who originally wrote it, who it has been sent to (blind copy or not), what has been deleted and what has been added.

Wikipedia defines document metadata:

"Most programs that create documents, including Microsoft Word and other Microsoft products, save metadata with the document files. These metadata can contain the name of the person who created the file (obtained from the operating system), the name of the person who last edited the file, how many times the file has been printed, and even how many revisions have been made on the file. Other saved material, such as deleted text, document comments and the like, is also commonly referred to as "metadata", and the inadvertent inclusion of this material in distributed files has sometimes led to undesireable disclosures."

This can be done with spreadsheet documents too, where the underlying formulas behind calculations could make a big difference in a high-stakes pricing or wage case.

Some law firms are practicing 'data scrubbing' or removing metadata from documents; others are using PDFs which don't contain as much metadata as word processing and spreadsheet documents. However, metadata mining and e-discovery are closely intertwined and many legal questions are yet to be decided.

I urge you to read the article above and get more information about metadata and how it could affect you, your clients and your cases. Be aware of what your documents and emails might contain, but ask your retaining attorney before attempting to remove any metadata on your own - it could be unethical and even illegal if it limits discovery or destroys evidence

Legal Blogs Can Provide a Wealth of Information for Expert Witnesses

I came across a nifty, comprehensive listing of various legal blogs, categorized in several different ways, so you can choose the listing method according to the criteria most helpful to you. For example, you can look at the blogs authored by judges or by law professors, those listed by firm name, or, my personal favorite, blogs sorted by legal specialty from education law to international law, from personal injury to tax law.

Compiled by law student Ian Best, this taxonomy of legal blogs began as part of an academic study of blogging for Moritz College of Law at The Ohio State University. Best wanted to demonstrate the amazing resource material blogs can provide for legal related matters. Most of the blogs included are written by lawyers, law professors and law students. Some of these legal blogs could serve as useful sources of up-to-date information regarding case law in your area of expertise, the names of attorneys who handle cases in your field or upcoming issues you should be ready to address.

Expert Witnesses - Check Your CV

Here we go again with the CVs. Yes, you've heard it before, but...proof, check, check again -- bulletproof your CV diligently and update regularly! A recent article in the San Diego CityBEAT, "False Witness: An Expert's Problematic Resume and Court Testimony Could Jeopardize Hundreds" prompted me to get on my soapbox about this one more time.

When bulletproofing an expert's CV it's fair to say that I can be nit-picky. But with good reason. Opposing counsel can and will find any discrepancies (in dates, co-authors, years, association/organization memberships, degrees, certifications, etc.) and magnify or distort them in such a way as to diminish your credibility and discredit you.

Not only can mistakes in your CV damage your reputation within your field of expertise, but as a matter of court record, now frequently available on the Internet, one such incident could effectively be the end of your expert practice.

On an even larger scale, exposure of incorrect data in your CV could invalidate the outcome of all cases on which you've previously worked as an expert and could even result in criminal charges against you for perjury (see the article mentioned above).

Be nit-picky. Have a disinterested third party read your CV line by line and ask you questions about various listings. Make sure it is up-to-date. Go over it with a fine tooth comb so many times you're absolutely sick of it.

Lying on a CV is one thing, but to risk your credibility and career because of a careless mistake or typo would be heartbreaking and pointless.