What to Look For in an Expert?
I recently came across a study in the Journal of the American
Academy of Psychiatry and Law out of the The University of Alabama
in the Courtroom: How Likeable Should an Expert Witness Be?"
To be honest, I'm not sure I understand their conclusion:
The likeability of the expert witnesses was found to be significantly
related to the jurors perception of their trustworthiness,
but not to their displays of confidence or knowledge or to the
mock jurors sentencing decisions.
Reading the paper doesn't make it a whole lot clearer for me, and
I think their mock trial setup is a bit contrived, particularly
since the jury consisted of psychology students, a demographic that
you'd be unlikely to find on a real jury. Also there were only two
expert witnesses for the comparison. To their credit, they discuss
these potential shortcomings. I do think, however, that the paper
points out something (that may have already been obvious)there
is more to being an expert witness than just being correct. Personality
and presentation are strong factors.
On the other hand, I feel that this subjective aspect should be
minimized. Experts need standards and measurable quantities whenever
possible. Before I began developing the concept of source code correlation,
the way software copyright infringement and trade secret theft cases
were resolved was to have two experts give contrary opinions based
on their years of experience. The judge or jury would tend to get
lost in the technical details, a strategy purposely employed by
some experts and attorneys, and a judgment would depend on which
expert appeared more credible.
Instead, I decided to expand the field of software forensics and
made it my goal to bring as much credibility to the field as DNA
analysis, another very complex process that is well accepted in
modern courts. I still believe that an expert's credibility and
likeability will always be factors in IP litigation, but that the
emergence of source code correlation and object code correlation
provide standard measures that bring a great deal of objectivity
to a lawsuit's outcome.