Dr. Easttom speaks on the importance of knowing where one’s expertise starts and ends: “. . . as soon as you start looking at the evidence, it should become apparent to you [whether] you’re not the expert here. And ultimately, I think that’s on the expert.” He elaborates that the expert’s role is to “Provide understanding to the . . . judge or jury [that] you have more knowledge than an average person.”
Additional topics include not taking it personally, explaining, “Your host is not attacking you as a human being. They’re trying to win a case. . .” and perceptions based on billing practices.
Note: Transcript has been lightly edited for clarity
Host: Noah Bolmer, Round Table Group
Guest: Dr. Chuck Easttom, Scientist, Author, and Professor
Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to speak with Dr. Chuck Easttom. He is an adjunct professor at Vanderbilt University, a lecturer at Georgetown University, and a computer scientist with a robust consulting practice. Additionally, he has authored 41 books on topics ranging from forensics to cryptography and over 70 papers on digital forensics. Dr. Easttom is a sought-after expert witness. He has PhDs in computer science, nanotechnology, DSC, and cybersecurity, and master’s degrees in science systems engineering, applied computer science and education. Thank you for joining me today.
Dr. Chuck Easttom: I am happy to be here.
Noah Bolmer: Well, let’s get right into it. How did you first get started in expert witnessing? How did you go from your background in computer science to being a sought-after expert?
Dr. Chuck Easttom: About 18 years ago I was asked to do some work on a case that specifically involved Microsoft, and I had several Microsoft certifications and was a Microsoft-certified trainer. Plus, I lived near where the case was happening, which would reduce the travel costs. So, I think many factors had to do with me being hired on the first one. After several years of working with various cases, they became more and more of a part of my professional life.
Noah Bolmer: Thinking back to that first time that you were contacted, how did that go? Were you actively seeking to become an expert witness or were you sought out?
Dr. Chuck Easttom: I was not seeking to be an expert. I was not even sure what it involved when someone first contacted me.
Noah Bolmer: You are not the first person to mention that. It seems like many people not only were called out of the blue but did not know that being an expert was even a thing.
Dr. Chuck Easttom: The only thing I knew about expert witnesses is what I had seen on Law and Order. So, I was not sure what it entailed.
Noah Bolmer: How did that first call go? Did they tell you where they were in the case? Did they tell you exactly what was needed? Did you feel well prepared? How did it go? Thinking back on that, what would you have changed as somebody who has now been doing this for so long? How would you prefer to have been approached in the first?
Dr. Chuck Easttom: Given that they knew I had never done it before, they gave me a great deal of information because I was a novice. I do not know that I would have done anything differently in that very first case. There are many things I have learned since then. I think the real key to doing this is the same as doing anything else. You should never be satisfied with quality work. For example, if I testify at a trial and the client who hired me wins the case, driving home I think about how I could have done a more thorough report or could have been clearer in my testimony. How can I do better next time?
Noah Bolmer: How much of that is the attorney preparing you for what you need to do and need to know? How much of that is you want to improve the quality of your expert witnessing as it were?
Dr. Chuck Easttom: I think most of it is the latter because I have reached a point now where I had a trial recently where the attorney looked at me and said, “You know, you have been in more trials than.” Generally, the preparation is less from attorneys these days. For my last 8 or 10 depositions, deposition preparation amounted to the lawyer talking to me for half-hour and saying, “You feel good?” I said, “Yes.” That was it. Years ago, it used to be an all-day preparation mock cross-examination, but that does not occur anymore.
Noah Bolmer: Is that something that you typically do in person, or is it online these days?
Dr. Chuck Easttom: Everything was in person until the pandemic happened. Then, everything was online. I think people have accepted that you can do things as we are doing right now over Zoom. Now, it is a mixture of Zoom, and in-person.
Noah Bolmer: Do you find that there is an advantage to either one?
Dr. Chuck Easttom: To be frank, I love Zoom better because when it is over, I get up and I am home. As opposed to driving or flying home.
Noah Bolmer: Do you have any interesting cases? I know sometimes you cannot get into specifics because of confidentiality, but are there a couple of interesting cases, interesting fact patterns, or something interesting to you as an expert? Was there an interesting twist that you had to change the way you typically do things? Any stories for us here?
Dr. Chuck Easttom: I do have a few stories for you. One of the courses I teach at Vanderbilt is a graduate course in digital forensics, and I always devote one lecture per semester to what I call expert witness follies. Things I have seen experts do that shocked me to no end. Without naming names or cases, there was a patent case some years ago where the opposing expert had a phenomenal CV. His resume was fantastic and there was some discussion about Java code that was part of the case. I began looking over his report and I began to suspect he did not know much about Java and the attorney who hired me said, “That’s simply not possible. Look at his resume.” I said, “Do me a favor. When you take his deposition, will you put a printout of the code in front of him and ask him to walk you through it?” After struggling for approximately 20 or 30 minutes, he finally admitted under oath that he had never written a line of Java code. I cannot understand why he would take that job. I think sometimes people like doing the work or the pay or whatever it might be, and they take on cases that they should not. They should look at the person who called them and say, “Look, I may be an expert in many things, but this is outside my expertise. I’m just not up to it.” While that is one exemplary case, I have seen similar issues. I have seen forensics experts who may know about forensics, but for example, this case involves Macintosh forensics, and it comes out that they have zero experience. It is going to come out at some point, and it is shocking to me how many experts are still willing to try.
Noah Bolmer: How much of that is on the attorney for not properly vetting their expert, and how much is it on the expert for agreeing to be an expert in something that they are not an expert? Do they always know when they first talked to the attorney that it might touch on some things that they are not familiar with?
Dr. Chuck Easttom: I cannot speak to what other people are told, but in my experience, in every single case I get approached with there is a lengthy list of technologies involved to get a copy of the complaint. Even if you do not, as soon as you start looking at the evidence, it should become apparent to you that you are not the expert here. Ultimately, I think that is on the expert. The attorneys sometimes do not know enough about your field. To use an example, let’s say you needed a medical expert. Do you know the difference between a neurologist and an endocrinologist? If you are an attorney, you might not.
Noah Bolmer: That is why you need an expert.
Dr. Chuck Easttom: I think it is ultimately the experts. To be frank, some attorneys are looking for someone with letters after their name that will say what they want them to say. Some experts fall into that trap and do it. The problem with that is the facts are going to come out and you usually end up hurting your reputation. I have always viewed my role as not drinking the Kool-Aid. As they say, but as soon as possible tell an attorney if there is a flaw in their th ook from a technical perspective. Here are the weaknesses. We need to address or maybe settle because I am not going to take a position. It is just untenable. It is going to hurt my reputation and I am the one that must stand up in front of a jury and say, “All this so.” I had better be certain I am comfortable with it.
Noah Bolmer: They are doing oppositional research sometimes or always. So, they are trying to impeach the other side. Is that something that you have come against much?
Dr. Chuck Easttom: Much depends on the nature of the case. For example, patent cases involve a lot of money at stake, and they will almost always do oppositional research. They are willing to try to undermine you to the point that sometimes they take ridiculous positions. Two years ago, in a deposition, the opposing attorney tried to suggest that because I have so many different degrees, they must not be legitimate.
Noah Bolmer: Jack of all trades defense.
Dr. Chuck Easttom: No, I think he was trying to see if it would upset me, make me angry, and give a reaction. I looked at him and said, “Well, the universities in question thought they were legitimate.”
Noah Bolmer: Tell me about your strategy for maintaining composure in cross-examination and being impeached by the other side.
Dr. Chuck Easttom: In the early days, it was hard. My first deposition did not last long, and I am sure I did not do a good job. When I left there. I knew I had been stressed because I had been in an air conditioner room, but there were sweat stains on my shirt when I took off my suit coat. You would have thought I had just been working out for two hours straight. What I eventually realized is this is not personal. Your host is not attacking you as a human being. They are trying to win the case. That became clear to me years ago when an attorney who had gone after me on the stand called me a month later to hire me. Once I realize it is not personal and they are doing their job, at least for me, at that point it becomes easy to maintain my composure.
Noah Bolmer: You have mentioned winning a couple of times. How important is it as a expert that your side “wins” the case? Is that important to you at all?
Dr. Chuck Easttom: To me not at all. Some experts put it on their resume and put it on their website. To me, it is not for two reasons. The idea of an expert is not to win a case, unlike an attorney whose ethics tell them to be a zealous advocate. You are not supposed to be a zealous advocate. You are simply putting out facts and they are a practical matter. Let’s say you have a two-week trial and let’s say I am on the stand for a day and half. That still means the bulk of the trial was not me. It was attorneys. It was the fact witnesses and things like that. Even if they win, it would be inaccurate for me to say I won. So. many other things are going on.
Noah Bolmer: You do not take cases based on how winnable they might be. In other words, you take them based on whether this is something I am an adequate expert in. Is that right?
Dr. Chuck Easttom: That would be the first thing and then I have to believe that the attorney’s position makes sense. I had a few cases very early on where I said, “I do not think I am your guy because I do not think I can say under oath what you would like me to say.”
Noah Bolmer: Do you turn down many cases?
Dr. Chuck Easttom: Just a few and many attorneys appreciate the frankness. There are a handful that I frankly call sock puppets. Someone to get up and say what they are told to say. Most attorneys do not want to hear the truth. They want an expert to tell them, “Look, here are the technical issues.” They want you to be able to explain it first to them, and then later to a judge and a jury.
Noah Bolmer: If an attorney comes to you and you have the appropriate expertise for the case, but something comes up that you might not know about, do you spend time trying to gain new knowledge during the case? If you do not know what they are asking is that, “I do not know this, I am not an expert on that thing. and I am not going to know it during this case?”
Dr. Chuck Easttom: That is going to depend entirely on what the difference is between your level of knowledge and what is needed in this case. For example, let’s say a new version of Windows, Windows 12 comes out and I have been using Windows since version 3.1. I do not have much experience with Windows 12 because it just came out, but I am comfortable that I will be able to gain that expertise in short order, I would immediately get a copy of Windows 12 or read papers on it, start digging into it, experimenting, and get that extra experience. On the other hand, if a new operating system that I have never heard of came out tomorrow and someone wanted an expert, I would have to say, “I cannot do it. I do not have a foundation.”
Noah Bolmer: Speaking about having a foundation, how do you maintain your expertise? You are in technology, which is an ever-changing topic. That is something that every single day there is something new and something becomes obsolete. We learned something different that we thought was one way and it is now another. What does it mean to you to be an expert, and how do you maintain that?
Dr. Chuck Easttom: What it means to be an expert, the actual courts have ruled that it is essentially someone they are training, or experience can provide understanding to the trial affect the judge or jury. You have more knowledge than an average person. However, I take it to a higher level. If I hire a mechanic, I assume they are an expert in my model of car and they can take care of business. So, I feel that is what an expert should provide in court cases. The way I maintain that is, and I am just a tad bit obsessive-compulsive, I am always learning something new. I have an absurd number of industry certifications. Seventy-four at this point because I frequently go back, study up, and take a new certification. Not because I need it. There is no one out there saying, “We would hire you if you just had one more certification.” I do it because that is my way of [saying], “I have studied up on this new thing.” But how do I know it as well as I should? Let’s go take that vendor certification a couple of years ago. I have been working with Microsoft Azure for a while, but I wanted to ensure that I knew it well enough. I went and took a bunch of Azure certifications to validate that. Yes, at least as far as Microsoft is concerned, I had sufficient knowledge of Microsoft.
Noah Bolmer: Is that something that you recommend for other experts, especially newer ones? Going above and beyond what their current level of knowledge is and continuing to learn more and get certifications. Are these things that lead to a more successful practice as an expert witness?
Dr. Chuck Easttom: I would say whether or not you pay to take a certification or to go back to college is not necessary, but to constantly be ready to learn. There are many free resources out there. For example, I am a member of the Institute of Electrical and Electronic Engineers, Triple E, and they have online courses that are free video courses. You can brush up on circuit design or Wi-Fi protocols or whatever. You have got to constantly brush up. Now that is more obvious in technology, but that is true in any area.
Noah Bolmer: I would also like to pivot and talk about timing. When you have a new case, when do you start preparing? Say that the case is still a month or so off. I have had experts tell me that they do not start to get going until it is just a week or two before because you can forget things or things might change. These are either cases unfolding or whatnot. Do you have a timeline that you go by or do you just kind of see how it goes?
Dr. Chuck Easttom: It depends on the type of case. For example, digital forensics experts have testified many times in phone forensics related to traffic accidents, trying to determine what the driver was doing just before the accident. Then they can start working on it a week or two before the trial because the facts are what they are, but patent cases get complicated. I have had patent cases where the work for myself and the attorney was ongoing for several months before. That is extremely common in the patent world because there are so many nuances to understand and so much back and forth between the parties before you ever get to trial.
Noah Bolmer: Right. The rules and laws are different in different fora, right? Or are you often employed in different markets? Do you have many people from different states and even different countries asking you for your expertise?
Dr. Chuck Easttom: Usually, for testifying it is within the United States because there are different rules in other countries. I have done some consulting in European, English, and Australian cases, but have not testified there. As far as testifying in cases in the United States they can happen anywhere. I have been to Florida and Delaware, Philadelphia, Texas, and California all over.
Noah Bolmer: Do you feel adequately prepared for the nuances of those different cases by the attorneys? If you live in Florida, for instance, do they tell you in California it is a little different? These are the kinds of different things to look for. The law operates a little differently. It might change the way you do things or does it not matter quite so much?
Dr. Chuck Easttom: If they are federal courts, it is pretty much the same everywhere. If they are state courts, the attorney will tell me the local nuances and rules that I should be aware of.
Noah Bolmer: Have you felt adequately prepared in that respect in general? You had mentioned earlier that there might be a small number of attorneys that want more of a sock puppet. If you do not know off the bat that your attorney is going to be that way. How do you deal with that? How do you deal with opposition to your counsel, making suggestions, and telling the attorney that they are wrong about something?
Dr. Chuck Easttom: First of all, make sure you are correct. Secondly, do it with some technique. Be careful about how anytime you are going to tell someone you think they are wrong that is a delicate situation, and you need to explain. For example, you could tell the attorney that if I take this position, you understand the other side is going to have an expert, and here are the ways I would attack that position. If I were hired by the opposing side, I am willing to bet their person does that. Let them know how it could undermine their case. I have never had it get so far that I had to threaten to quit, or someone insisting on me saying something I did not want to say. I have never had it go that far. I cannot say it has never gone that far for another expert, but it never has for me. There is usually a little back and forth. Exactly what positions I am comfortable with versus what they would like me to be comfortable with, but it usually gets resolved easily with not a lot of problems.
Noah Bolmer: Do you have any general advice for attorneys, especially when they are bringing on newer expert witnesses who do not have much experience? Are there things that you know would make them feel more comfortable, more adequately prepared or assist the case in some way? Is knowing the expert witness on the other side important to be prepped on?
Dr. Chuck Easttom: I have done this long enough. There are names I know well, and there are people out there that I know and respect, although we have been on opposite sides. When you have two qualified experts that are doing their job, they are probably going to agree on 90%. It is the 10% gray area where there is trouble. On the other hand, I need to let attorneys know occasionally. I happen to know him, and he would take absurd positions if his attorneys asked him to. Be prepared to come across those kinds of things.
Noah Bolmer: Before we wrap up, I would like to ask about closing cases. So, when the case is over, it can end in a few different ways right there. There can be a finding or a settlement. I found there is some confusion over when a case ends. How are they supposed to be contacted? How are they to get paid? In your experience, are attorneys good at explaining these things, or do you have to be proactive in finding out where everything stands? Are you the case at large?
Dr. Chuck Easttom: They are usually proactive. If the case stops, I usually get a pretty urgent e-mail saying to put your pen down and stop adding billable hours to the fee because we are done. I also find that as far as getting paid, the only time that has been a struggle is when the attorney’s client is a small entity, and they are stretching their budget to get there. My advice to experts is if you think that is going to be an issue, you can insist on payment in full before you go.
Noah Bolmer: Do you typically bill hourly regardless of whether it is a report or a deposition? Is it always hourly?
Dr. Chuck Easttom: That is the other thing. Not only do I bill hourly, but it is always the same rate. I have seen some experts that build higher for testimony. That is a mistake because it looks like you are charging for your testimony, and I am not charging for my time. My time is worth X amount, regardless of how I spend it.
Noah Bolmer: Do you have any stories about getting paid or being contacted unusually at the end of a case or anything like that? Or is it always gone in a more or less simple manner?
Dr. Chuck Easttom: Many years ago, I had a case where a client who hired me won a large settlement. It still took me over a year and a half to get paid my final bill because they were a small company running out of money. That is when I started my policy. That is a huge company hiring me. They are going to pay me, it does not matter, but for smaller quick patent work I am getting paid every month as I work, but when it comes to trial, I let the attorneys know that your client is going to need to pay me before I step in the courtroom. I explained to him it is because it has gone badly before.
Noah Bolmer: Is this usually outlined in a contract?
Dr. Chuck Easttom: You can put that in your engagement letter with this kind of work. It is usually called an engagement letter as opposed to a contract. Or you can get close to trial. Let them know that look, we are going to straighten things out financially. Not to mention it is great on the stand when the opposing counsel, I ask you so. If your side does not. You may not even get paid. I got paid before I got here. So, my opinion is not tied to my getting paid. That is a great showstopper to the opposing counsel when they are trying to impeach your testimony.
Noah Bolmer: Many other experts have told me how important telling the truth is. I guess that ties into it, right? That is part of telling the truth is not having the appearance of any conflict of interest.
Dr. Chuck Easttom: The appearance of impropriety can be as bad as impropriety, but I would have to agree with the advice to always tell the truth. As an expert, your career will recover from being wrong, even very wrong. You will recover from losing cases. If you do not tell the truth, even if it does not rise to a charge of perjury that would end your career. Even if it does not rise to that, if you get a reputation for someone who plays a little loose with the truth, you are done.
Noah Bolmer: That is great advice. Doctor Chuck Easton, thank you for joining me today at Discussions at the Round Table. I appreciate you.
Dr. Chuck Easttom: I am happy to do it.
Noah Bolmer: We will see you next time on another Discussions at the Round Table.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Our guest, Dr. Chuck Easttom is a professor, author, and scientist. He is an adjunct professor at Vanderbilt, where he teaches computer science and a lecturer at Georgetown. He has written 41 books on various topics about computer science and over 70 scholarly papers. He has a robust consulting business and is a sought-after expert witness. Dr. Easttom holds PhDs in Computer Science and Nanotechnology from the University of Portsmouth and Capitol Technology University respectively. He holds additional advanced degrees in Science Systems Engineering, Applied Computer Science, and Education.
It is estimated that by 2021 cybercrime will account for $6 trillion in damages. There are ransomware attacks every 14 seconds, and on average it takes companies over 6 months to notice a data breach. Computer forensics experts are able to reconstruct digital information in order to analyze and solve computer-related crimes.
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