In this episode…

According to Mr. Robert DeCicco, ask your attorney before appearing in a new venue. Whether it’s cowboy boots in a Texas court or dressing up for New York, there are advantages to knowing the norms, rules, and procedures before stepping in for the first time.

Check out the entire episode for our discussion on neutral appointments, protecting yourself in engagement letters, and remote demeanor.

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Robert DeCicco, principal consultant at Quint, LLC.

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer. Today, I’m excited to welcome Robert DeCicco to the show. Mr. DeCicco is a principal consultant and lead expert in digital forensic technology services and cybersecurity at Quint, LLC. He’s an experienced expert witness in the digital technology space and a sought-after lecturer. Mr. DeCicco holds a BS in mathematics and computer science from Penn State, numerous licenses, and accreditations in his field. Mr. DeCicco, thank you for joining me today on Engaging Experts.

Robert DeCicco: Thanks for having me, Noah. I’m delighted to be here.

Noah Bolmer: Of course. You’ve been in tech since at least the mid-1990s. How did you become involved in expert witnessing?

Robert DeCicco: I became involved in expert witnessing- it certainly wasn’t a planned career path, but I did a stint in dotcoms and things like that in the early era in Silicon Alley. Not Silicon Valley, which was in New York’s Flatiron District, so I went through that era and got involved in the business side of technology consulting. Pre Y2K, that was a big deal with many cutovers from mainframe systems to client-server systems. Wall Street was panicking. Budgets were not involved. It had to be done with that panic. I got involved in consulting in that regard, and because I was in a consulting space with Wall Street, Wall Street had a diverse group of systems. Everything from IBM to Lotus before they were purchased. Then it was Microsoft and Apple platforms floating around, JP Morgan. It was the Wild West, but my benefit was I got to see [many] different systems and become sort of a consultant.

From there, when I went to National Security Agency, post 9/11, I got exposed to a little something called computer forensics, which wasn’t- the phrase hadn’t been coined. It was the infant era. There we were at a war, we being the United States and others, involved in war that was different than prior wars in terms of intelligence and evidence gathering. Evidence to be used later on. It was digital evidence instead of so we were coming up with policy procedures. How you would gather that evidence so that it would be- you could bring it to the world court at some point. I got great exposure there, and understood the policy side and overkill on the technical side. When I went to- came back to the private sector, there weren’t a lot of people that were credentialed to do expert work. Attorneys got excited when they saw top secret clearance, and NSA. It made me above other folks who may have known more about systems, but I was trustworthy. That’s how I would get tagged to be a testifying expert. I could communicate and, they make you- they always say, try to break it down to a level that a nine-year-old could understand, for judges and so on. That’s how I got pulled into the wake of what was a growing field, electronic evidence, and then prove it.

Noah Bolmer: Did you receive a phone call out of the blue? Were you actively looking for expert witness engagements at the time?

Robert DeCicco: I didn’t even know it was a thing.

Noah Bolmer: Right. [Many] people didn’t. A lot of people. Tell me about those first phone calls. An attorney or their representative calls you up. What do they say? How do you respond?

Robert DeCicco: After I left NSA, I went to work for a small digital forensics company in New Jersey, Central Jersey. They were entrepreneurial and they weren’t- they had the benefit of not being- you’ll hear a lot, or I’m sure you’re familiar with the space that you talk to folks in, conflicts, conflicts of interest and legal conflicts and so on. Because they were so small, they were able to work with anyone. They were focused on digital forensics. I knew my way around, but I was working as what they called a case manager. That’s almost like a lead detective if you did it in law enforcement. I found myself having to explain to the attorneys what we had done, explaining the bill, and explaining invoices. I had folks doing tasks. Then the attorneys were in the middle of litigations, and they might argue with me a little about the bill. I argued back because I come from a big Italian family. That’s all we did was argue. I always talk about My Cousin Vinny because it’s such a good example of expert witness work. I would argue back and then the litigator would be I’d rather have him do it because then I don’t have to go back and forth.

The first case I ever got involved in, which involved expert work, such a long time ago, I don’t think there’s any, I have little concern about the parties involved. It was- it doesn’t matter which side I was on. I’ll say there were two big companies and it had to do with files being deleted. The guy reformatted his drive and he was a salesperson. It was a small matter, but the parties involved were big. They were throwing money at one another and the law firms were big. Our thing was tiny and the attorney asked me to write a report, an affidavit, which again, I wasn’t even sure what that meant, but I wrote it and he put so much scrutiny on it. I’ll never forget. He said that when he was in law school, he would get charged a nickel for every superfluous comma in briefs that he wrote. I had some superfluous commas and he would circle them and everything. It was- the scrutiny was intense, but I liked that challenge. Just like a crowd and a band, the band gets louder when the crowd gets louder and everything else. That’s how it happened and then he’s like, “I’m going put you into a deposition. I’m going to appoint you as my expert and you’re going to do a deposition.” It went from there and we had a good set of facts, which always helps. That’s how it happened, what certainly wasn’t- it was trial by fire, and from there, that was like 2004 or something, a long time ago.

Noah Bolmer: Did you enjoy it?

Robert DeCicco: I did. It can get competitive. It can get stressful. When you’re in it, there are a lot of highs and lows. It can get miserable. The higher the stakes, the higher the expectation of your availability and flexibility. Jump on a plane, three am phone calls, and we’re going to re-edit the whole thing when you’re in the middle of it and you’re like, “Oh my, really?” But when it’s all said and done, there is a little sense of accomplishment, win or lose. You fought the good fight.

Noah Bolmer: Now that you’ve been doing this for a while, what are some of the questions that you like to ask a potentially engaging attorney before you say yes and sign a contract to protect yourself from situations where you might not have enough time, get paid on time or those sorts of things? What are the things that expert witnesses should be asking attorneys during those initial phone calls?

Robert DeCicco: I would say, and it’s- again, you learn the hard way in some instances. If an attorney calls- and I will get sort of cold solicitations sometimes because of the way social media works now, LinkedIn, and all these directories out there. I ask for a copy of the complaint or minimally the caption of the complaint. If they can’t furnish that right away, that’s a red flag for me. From there- their questions will be created from there because, and I have the benefit of doing it so long, or long enough, I should say, that I understand the process of litigation. “Have you filed a complaint yet?” Sometimes, if smart attorneys engage you before they file a complaint, maybe they just got a letter. What stage are we in? If they say, “Send me your resume. Send me your CV.” I’ve learned the hard way. I’ve been burned that way because not to pat myself on the back, but my CV has been used as an intimidation tactic. I’m sure many of my colleagues out there, regardless of your discipline, have had that happen, where attorneys are in a little thing and they say, “We’ve got this guy or this girl” and we show- they furnish the CV and they might back off and settle right there.

Noah Bolmer: That’s something that I’ve heard from a good number of expert witnesses is retaining or threatening to retain a particular expert witness in the hopes that that will help drive it towards a favorable settlement or something like that. How do you deal with those situations? What do you do to protect yourself from somebody using your credentials? How do you make sure that you get paid for that?

Robert DeCicco: I learned from some of my colleagues outside of the forensics world, outside of the technology world, we have little forums and klatches [where] we’ll talk with one another, to put a form of a digital watermark on the CV. A tip for all of you out there listening is a digital watermark that says “Not Retained” or put whatever you want. An indelible mark is I’ll send you my CV. You want to review my credentials, even though you called me, you must think I might know something. Put it on there so that if they attempt to furnish it to the other side it says, “Well, you haven’t retained them yet. Sounds like we could retain them if we want to.” That’s one thing I’ve done.

The other, depending on the type of case, is asking for a retainer, that’s a tough thing to do. Some law firms will bristle at that. If it’s plaintiff work, as experts, we’re not allowed to, at least in my experience, not allowed to get any percentage of the proceeds of a victory. A question that gets asked early in a trial or hearing is, “Is your compensation impacted in any way by your appearance here today?” The answer has to be no. If it isn’t, it’s a big red flag for everyone. But you can have a retainer to work up against, and it doesn’t have to be what you think the whole thing will be. I’ve been burned on cases as a neutral. A judge appointed me as a neutral, and he was the neutral. So there was a sitting judge, or an emeritus judge who appointed me as the technical neutral. In this instance I was talking about, there was a Special Master. The Special Master presides over everything because the judge doesn’t have time for it. It’s usually an attorney or a former judge. It can be someone who’s not an attorney, but I’ve rarely seen it. The master is dealing with two law firms who are combative. It’s a litigious space. Maybe they each have an expert on their side and there’s a lot of confusion happening. They say, we’re going to get a neutral, a referee, aka a referee. As a neutral, a technical neutral, a medical neutral, you could be whatever, but you’re a neutral and you’re looking at everything that’s been done, briefs, filings, so on. You’ll sit on calls or meetings and watch the interaction between each and then render opinions based on your experience. Based on everything, not about the case, but basic accepted practice, best practice. Then ask questions, and they have to answer you. They can’t run away. Then, you can render an opinion, which can be adhered to or not, but your sole purpose is to be a referee. If you watch sports, there’s more than one ref on the field. You could be the side judge, you could be the back judge, you could be the big referee, the one who does the announcement, that’s the judge. I had a neutral appointment by a judge who was the Special Master and the other judge was signing- our bills would- the invoice would go to the judge. The judge would look at it and then split it in half. You were supposed to- whatever the hours were, it was supposed to be paid.

The side that lost, which was not anyone’s fault, but the evidence- and the judge, did not pay and you have the task of chasing down your own bills. The side that paid right away was a bigger law firm and the facts were on their side. They paid right away, the other side didn’t, and you chased them over and over again. Then you find yourself in this, I will call it a childish position of saying, “I’m going to have to call the judge. This bill is 90 days old, and you haven’t paid us. I’m going to call the judge.” People ghost you. It’s an e-mail or whatever. I’m on the other side of the country. I can’t go knock on the door or doorstep. Then, the people who were involved in it quit or go to another law firm. That’s an extreme example, but you have to build into your invoices or engagement letters something to the extent of net 30- or it’s a business decision. If you don’t pay after 45 days, we’re going to send it to a collections agency or something like that. The numbers for a big law firm, in this particular instance, it was $15,000 that they owed. That’s a rounding error for them.

For a sole practitioner, that was huge. I know the law firm is saying, “Go ahead and sue us. We have a bunch of lawyers sitting around doing nothing.” You have to protect yourself in an engagement letter and you might have to protect yourself with having a law firm. If you’re small enough, you’re not going to have a general counsel, but you should have a lawyer, an attorney that you work with closely, that wrote your engagement letter, reviews it annually or biannually, and maybe even reviews- I’ve made the mistake of using law firm engagement letters instead of my own, but if I’m working with one of the top five AM Law 100, I’m not going to win anyway. I’ll just use their letter. You can’t adhere to your own letter.

Another piece of advice is protecting yourself there. The only other thing I could think of is digging into what the case is. And I’ve turned down cases because of the subject matter.

Noah Bolmer: Were you not expert enough or was it something you just didn’t want to get into? Tell me what you mean by subject matter.

Robert DeCicco: I’ve had some cases, I was certainly qualified from the electronic evidence perspective, but it was a subject that I wasn’t comfortable with what the allegations were. Even if they were five percent true, I was not comfortable with it. It might have to do with trafficking or something controversial. I don’t want to be on either side of this. It’s, “We’ll pay your rate. We’ll pay this.” I’m morally conflicted out. You could have a- it’s sort of ethically conflicted out.

Noah Bolmer: Sure.

Robert DeCicco: Hold fast to those things because it could come back to haunt you.

Noah Bolmer: Do you find yourself in roughly an even number of cases where you represent the plaintiff versus the defendant, or do they tend to go one direction or the other? Is that important?

Robert DeCicco: It is important. If I weighed them all out at the end of the day, I’ve probably done more defense, but I have done a fair amount of plaintiff. Plaintiff work is risky for everyone because the payment isn’t guaranteed. It’s not 50-50. It’s maybe 30-70. Thirty on the plaintiff’s side but then throw ten percent of neutral in there. Now, I’m at 110%, but it doesn’t- that’s just- the defense usually ends up obtaining experts because they’re hitting it, hitting back harder.

Noah Bolmer: Sure.

Robert DeCicco: They want to settle it faster They want to make it go away.

Noah Bolmer: Let’s pivot to preparation. How do you get ready for either a big deposition or a cross-examination? How do you get ready for the proverbial big day?

Robert DeCicco: A lot of drilling with counsel. If it goes to trial- I don’t know what percentage of cases go to trial. It’s a small amount. If you go to the big dance, it’s small, so it’s very important. It’s day and night. You’re on call. You’re reviewing and revising. You want to take as much guidance as possible from the attorney or the second chair who’s doing all the work to know what you need to know cold because it’s a mountain of information. They’re hoping to- you’re assembling a playbook. You’re assembling- you’re going to the Super Bowl. You’re going to the finals of NCAA basketball. Their assembly of a playbook, but we don’t know what they’re going to throw at us. We do know they’re going to try and do this, this, this, and this. So let’s get these out of the way and just rehearse it. Then you- I like to- when you look at my old depositions and maybe the opposing expert, and there’s a nifty way that they allow keyword searching. Everything that- you can search through topics without using AI or anything like that. Just a certain keyword and then reread that section a few times.

For me personally, I start with the mistakes I made in deposition. I ask the attorneys, or the attorney, “What mistakes do you think I made during the course of this case?” Then say, “What would-” because they’re usually focused on the wins. “Tell me where I made a mistake because that’s what they’re going to hit me with on the stand.” Then, I have an answer or at least a semblance of an answer that I’m prepared hit back with when they come in with the left jab that I didn’t slip the first time.

Noah Bolmer: Besides the subject matter, do you have any pre-trial or pre-deposition routines? I’ve had experts say they like to not eat anything, eat a full meal, drink coffee,  do yoga, or listen to heavy metal. Do you have a routine that gets you in the right headspace?

Robert DeCicco: I have to get some dopamine in the form of exercise before, whatever it is. I had a big case in Chicago and they would [always] start early, at four a.m. I’m in a hotel, I’m not where I am ordinarily. My typical routine- but I would find a rowing machine in the hotel and get enough to get my heart beating and the juices flowing. I found that that helps me be more on point. Caffeine, sure, but it wears off faster than the adrenaline and dopamine. Sugar, no way. I definitely don’t drink the night before. I had that happen once where two of us were prepping a joint report. They said, we’re going to pick- we’re going to go with the other guy instead of you tomorrow. Great. Go out and celebrate that I’m off the hook. The next morning they switched. Not my best. I wasn’t my best self at 8 a.m. getting thundered away by eight attorneys.

Noah Bolmer: It’s interesting you mentioned a joint report. To what extent do you work with other members of the trial team, be they paralegals, assistants, or other experts? To what extent do you interface with them? Is the attorney present either physically or virtually when you have those meetings with members of the trial team?

Robert DeCicco: The lead partner, or the person who’s Of Counsel, rarely interfere. They may be in the beginning where they give you the blessing, “Yes, I’m okay with this person.” Then they go on because they’ve got other experts, maybe, depending on the size of the case.

Noah Bolmer: Sure.

Robert DeCicco: Second chair, third chair, you’re probably working with them extensively. Paralegals and other members of the team, depending on the law firm. I love having the trial team almost at your disposal to make exhibits, and help you assemble a report. You’re looking at it extensively because they’re experts in that so you’re handing off, I need an exhibit to demonstrate that the thumb drive was plugged into this thing, whatever you’re trying to make it demonstrative of. I could draw it. I could use PowerPoint, but someone else, that is their bread and butter. They do it and they’re excited about it. When they give it back to me and I say, “That’s amazing. I don’t even have to say a word. It’s clear and concise. You’ve got it.” You’re quarterbacking at that point.

Noah Bolmer: Do you use a lot of demonstratives in your practice, both or either in your report or on the stand?

Robert DeCicco: Yes, when necessary. I’ve worked with many attorneys  where they would try to do a demonstrative. I’d be sitting in a hearing in the back. I’m not expected to testify and the attorney gets flustered and then says, “My expert is here, can I put them on the stand?” They’re fed up with the technical mumbo jumbo, whatever they want to call it. I like demonstratives because you have some visual representation. Then you can put a narrative behind it, and it hammers it home. A million years ago, when a thumb drive was not all that pervasive, let’s call it 2003-2004, I was in the witness box and the judge is sitting to my right, and I’m explaining what a thumb drive is. I happened to have one in my coat pocket, and I said, “It’s this, Your Honor.” It was an intellectual property theft matter. For her it hammered it home because I showed how easy it was to move thousands of documents. You didn’t even know it was in my pocket. And we were on the plaintiff’s side for the subject and the defendant we were talking about- how easily could he have moved those thousands of documents. “Your Honor, I have thousands of documents in my pocket right now and you didn’t even know it.” That’s serendipity to a degree, but planned serendipity, if there is such a thing. Demonstratives, especially with a jury, you have to have them because you don’t know who your audience is. They’re selected and they may not know what you’re talking about.

Noah Bolmer: One of the things that I like to ask experts is about venue. Venue runs a few different- there are a couple axes because we have criminal versus tort versus administrative, but then we also have state, federal, different states, perhaps even international. What venues have you worked in and do they change the calculus either vis-a-vis your preparation, the way that you bill, or anything else? How does venue affect your practice?

Robert DeCicco: Not as much as you would think. Certainly, the stage gets bigger. It’s a musician. You play Madison Square Garden or do you play a coffee house? You have to bring to your best self. You have to perform to the best of your ability. I’ve worked in every federal jurisdiction. I’ve worked in state on a state-by-state basis. There is some impact. Everybody knows one another. I’ve had cases in Georgia, Texas, California, Chicago, New York, and internationally. The rules are different. If you fly in from New York to the Southern District of Atlanta, they’ve got a certain opinion of you right away. If you’re testifying in Texas and you come from New York or California, they’ve got an opinion of you. I would put cowboy boots on. I lived in Texas for a while. I lived in Houston. That’s the way you dressed. I didn’t wear a 10-gallon hat to court. Some guys did. Some attorneys did, but I wore cowboy boots to court. You’re thinking about where you’re going. I would ask attorneys sometimes, “Do you want me to shave or do you not mind?” Most honest attorneys were like, “I don’t care. Just come as you are. We have a great set of facts. Don’t wear a flashy watch.” [In] certain jurisdictions, no cufflinks. Then some would say, “We want you to look like you cost $10,000 an hour. We want you to like, bring it. Wear a tuxedo if possible.” So I take guidance from the attorneys when it comes to those jurisdictional nuances.

Noah Bolmer: That’s interesting. It affects demeanor to some degree where you are. What about remote appearances? How does that affect demeanor? Do you either dress a certain way or make eye contact a particular way? Does it feel subjectively different when you’re working remotely?

Robert DeCicco: During the pandemic, I had multiple appearances, hearings, and testimonies that had to be remote, especially because that was in California at the time. I dressed completely like I would be in court. Shoes, suit, tie, 100%, even though at one point I was on a ski trip and they called at the last minute. I had to attend a deposition. It wasn’t my deposition, but I had to attend one. I had a feeling it was going to happen, so I brought my little costume, for lack of a better word, with me so that I could be in that mode. I feel that impacts your behavior.

The other part of remote testimonies. I’ve heard horror stories. I don’t know directly, but I heard a horror story of someone in a deposition, and someone was off camera Googling things and feeding them information, which is perjury. I don’t know how many times that’s happened, but that’s not good. I come from a time where they weren’t allowed, you weren’t allowed to bring a phone into the courtroom. You’d have to check it in and put it in a locker and so on. I default to that side. Plus you’re swearing- you’re supposed to swear. They don’t have a remote Bible to put your hand on, but you should probably have one nearby. If you’re in a hotel, there’s usually one in the drawer. If you’re taking it seriously and you’re speaking truthfully, be professional.

Noah Bolmer: Let’s move on to a couple general topics. What do you find meaningful about being an expert? Put another way, why are expert witnesses important?

Robert DeCicco: They’re important when there’s an impasse in any juncture of a case. The facts are what the facts are and you can always- it’s Bugs Bunny, duck season, rabbit season. You could go back and forth forever. Once you have an expert that can articulate some of the squishier topics or more nebulous subjects inside of a case, inside of a dispute, whatever they may be. That is the game changer and it’s important because otherwise you could say “Yes” or No” all day. The dispute will just go forever.

Noah Bolmer: What do you find meaningful about it?

Robert DeCicco: That you can see the result of what you’ve done. There’s a beginning and an end to it. I had challenges when working for big consulting practices, big professional services firms, because their dream was to have something that went forever. If you have some-  if you’re talking about a huge thing like Madoff, Lehman Brothers, and Enron, you’re unwinding things forever and billing for it. Some people enjoy that because it’s steady work and I can appreciate that. Everybody likes a steady stream of income. But I like a beginning and an end. That’s it. What was the score at the end of the game? That’s what I find meaningful about it; is there’s an end.

Noah Bolmer: What fundamentally makes for a quality expert witness-attorney relationship, and how do you maintain that momentum going forward throughout the entire action?

Robert DeCicco: It’s chemistry. There’s a chemistry that happens and I’ve had it where I’ve switched with the partner that I might be working with where the lead, lead, lead partner at the top says, “I want to work with this. We’re going to work with this person. They’ve been successful with us in the past. We know how to work with them. We like their reputation.” Then they assign you with someone and you don’t click. The best law firms will pivot and put you with someone else until it clicks. There’s a chemistry factor and sometimes it just doesn’t work. If it’s a small law firm, then it goes away.

Noah Bolmer: Do you have any bad experiences or red flags that have informed your career?

Robert DeCicco: If an attorney doesn’t respect your expertise, you can feel it with the contempt in their voice. The contempt of their tone. It’s about staying in your lane, so to speak. Attorneys are protective of what their hourly rate is. An expert, your rate is higher than theirs, but the subject you’re talking about is cut and dry, it’s at that stage in litigation that they said we need an expert because you’re so- they’re saying, “I could do this. I could right click on a document and look at last author.” I’ve had that happen and I’ve had an attorney be upset with me because he said, “That took you 15 minutes. I could have done that.” I said, “No, you’re paying the operator fee and it took me 20 years and 15 minutes, not 15 minutes. I could say the same thing to you, counselor. Everybody knows what right and wrong is. I don’t have the law-” Once you get that, mutual respect needs to be established quickly. Sometimes you have to be- they jab you, you have to jab them back, but at the end of the day, you could be friends.

Noah Bolmer: Before we wrap up, do you have any last advice for attorneys or expert witnesses working with attorneys?

Robert DeCicco: Keep in mind, it’s not personal. Even with your opposing experts. I am friends with many folks that have been opposing experts with me. When we’re in the ring, the arena, or on the field, whatever you want to call it, it’s game time. Afterward, we can go BS, talk, whatever. It’s business. It’s not personal.

Noah Bolmer: Sage advice. Mr. DeCicco, thank you for joining me today.

Robert DeCicco: Thanks, Noah. It was a pleasure. Enjoy the rest of your day.

Noah Bolmer: And thank you as always to our listeners for joining us for another edition of Engaging Experts. Cheers.

Robert DeCicco, Principal Consultant and Lead Expert in Digital Forensic Technology Services and Cyber Security at Quint, LLC

Robert DeCicco, principal consultant and lead expert in digital forensic technology services and cybersecurity at Quint, LLC. He's an experienced expert witness in the digital technology space, and a sought-after lecturer. Mr. DeCicco holds a BS in mathematics and computer science from Penn State and numerous licenses and accreditations in his field.