PRACTICE MANAGEMENT
Ghostbusters: Who You Gonna Call?

By Sharon D. Nelson and John W. Simek

When it comes to exorcising demons from a family law case, a talented computer forensics expert should top your list of first responders. According to industry estimates, one-third of the business of smaller forensics companies now comes from family law attorneys.

Our best advice is to hire the most experienced and best qualified expert you can afford.

Today, family cases compel attention in the marketplace. In a growing number of divorce cases, a huge piece of the puzzle involves gathering evidence from e-mails and chat rooms, authenticating it, and persuading the court to admit it at trial.

Defining your needs. A solid computer forensics expert must be skilled in collecting, preserving, analyzing, and presenting electronic evidence. He or she must be a gifted communicator, experienced at writing comprehensive yet accessible
reports, and adept at translating complicated technology concepts into understandable and compelling evidence at trial. The right selection will depend on a number of factors, including the issues in the case, the client’s budget, and the pool of available experts.

Assessing the playing field. At one end you have the major players—marked with huge price tags and a horrendous disparity of talent among their employees. At the other end, you have Joe Blow, formerly a clerk at your local supply store, who launches his new career by acing a couple of courses at the local junior college and landing a meaningless certification from a vendor.

Many experts hail from law enforcement or the military. Compared with Joe, their training looks terrific. However, their skills vary widely, and their experience can be spotty. Rarely do they possess extensive technical backgrounds. Most practice their trades in a compartmentalized world, working almost exclusively on child pornography, intruder detection, and identity theft cases. Many have little civil experience and are on unsettled ground in the private sector.

The largest players in the industry provide both computer forensics and electronic evidence services.

The going rate. Computer forensics is not cheap. Small cases may run in the range or $5,000 to $10,000, and larger ones can quickly reach six figures. Rarely is it possible for an expert to quote a final figure up front. Proffering estimates based on a cursory examination of the facts is akin to what lawyers experience when a new client demands to know up front what the final bill will be.

Generally, the larger the forensics firm, the larger the bill. It is not uncommon for the big boys to charge $500 an hour. In high-quality boutique firms, $250 to $300 an hour is more common. A firm charging less than $200 an hour should mandate a meticulous inquiry into its credentials.

Our best advice is to hire the most experienced and best qualified expert you can afford. Regardless of the size of the firm you choose, consider the following factors in vetting prospective candidates.

Location may not matter. How often attorneys forget that this is the electronic era. Many lawyers lose sight of the value of having the best possible expert, irrespective of location. If a significant amount is at stake or the case is likely to end up at trial, limiting yourself to local experts may prove to be a disservice to your client.

Court qualified. Good experts have qualified in multiple courts and list those qualifications on the CV. Mind you, most cases of any kind tend to settle, and so even the best experts may only appear in court several times a year. However, it is wise to be wary of someone who has only qualified in one court or none at all.

Forensics certifications. Current-ly, the most prestigious certification available to private firms is the EnCase Certified Examiner (ENCE) issued by Guidance Software. If you see a certification you don’t recognize, find out whether a written exam was required. Did the applicant have to prove some minimum time spent in computer forensics? Was the expert certified in computer forensics or merely the use of a particular forensics tool? What organization issued the certification?

Technical certifications. A good forensic technologist will have a lot of letters after his or her name, indicating a broad range of certifications with a number of different technologies. If you see no certifications, or a “base-level” certification (such as A+), you do not have an individual with a wealth of experience. If the expert is, for example, a Certified Novell Engineer, Certified Cisco Network Administrator, Microsoft Certified Professional + Internet, Microsoft Certified Systems Engineer, NT Certified Independent Professional, and a Certified Internetwork Professional, you have someone with an expansive technical background.

The CV. Get the expert’s CV early on and study it. Ask questions. Does it reflect extensive speaking and writing? Those who participate frequently in CLE seminars are skilled at answering questions on the fly and tend to be excellent testifying experts; their roles as teachers and writers also enhance their credibility with a judge or jury. What is the expert’s educational and professional background? Is this a broad-based technologist or a new college grad still wet behind the ears with only a narrow sliver of technical knowledge?

Beware of the jack-of-all-trades. The individual who claims multiple disciplines may, in fact, be a master of none. A forensic technologist worth having is generally billed as a forensic technologist and does not offer a Chinese buffet of services.

Loose lips. Not all cases are shrouded in secrecy, but a fair number of them are. Make sure that the expert you choose has a confidentiality clause in the retainer agreement, and don’t hesitate to ask him or her to sign your confidentiality agreement. Remember as well that the expert may work on your case with others. The entire firm should have an impeccable reputation for keeping secrets.

References, references, references. There is no better way to secure a good expert. Ask your potential expert for references and then call them. Did the expert do a thorough, professional job? Was he or she responsive when contacted? Was the work completed on schedule? What was the quality of the report? Did the expert make a credible witness?

If your candidate has the attitude that “the truth is the truth,” you may not want that truth in court, but at least you will know the realities of your case, its strengths, and its weaknesses. Did the expert stay within budget or at least alert the client to additional costs before incurring them?

Nothing can replace a candid interview with a prospective expert. In a few moments’ time, you often can get a reliable sense of how bright, experienced, and articulate the expert is. If you know you will need litigation support, test the expert’s knowledge. When you mention the Daubert test, do you get a blank stare or the knowledgeable response of a seasoned court veteran? Does the forensics firm have a lawyer who can assist you with electronic issues with which you are unfamiliar? A seasoned expert with extensive courtroom experience may be sufficient, but that is a relative rarity.

For more Information About the Section of Family Law

This article is an abridged and edited version of one that originally appeared on page 40 of Family Advocate, Winter 2006 (28:3). For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: www.abanet.org/family

Periodicals: Family Advocate, 64-page quarterly magazine with three issues that include how-to articles and current trends in family law for lawyers, and a fourth “Client Manual” issue for lawyers and their clients covering aspects of the divorce process; Family Law Quarterly, a scholarly journal that offers an analytical view of family law issues, including “Family Law in the Fifty States.”

Books and Other Recent Publications: The Military Divorce Handbook; Assisted Reproductive Technology; How to Build and Manage a Family Law Practice; Creating Effective Parenting Plans.

CLE and Other Educational Programs: The annual Trial Advocacy Institute offers an intense learning experience; for more experienced lawyers, there is an Advanced Institute. Other CLE programming includes teleseminars, spring and fall conferences, and our popular Hot Tips program at the ABA Annual Meeting. Past program materials are available for purchase on our website.

Member Benefits: Discount on Family Law Section publications and CLE materials; Committees on topics such as adoption, custody, law practice management; Case Update, a monthly digest of family law case decisions around the nation; monthly eNewsletter.

Sharon D. Nelson and John W. Simek are, respectively, president and vice president of Sensei Enterprises, Inc., a legal technology and computer forensics firm based in Fairfax, Virginia. They can be reached at sensei@senseient.com.

Copyright 2007

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