I was recently asked to review and render an expert opinion in a computer malpractice case against a computer forensics expert. It is a long story, but let's just say one of the parties acted on information from the expert that was not at all fully explained by the expert in his report in a business matter against a former partner of an LLP. The person did not contact the expert for any explanation of information contained in the report, but simply went blithely on her way and contacted various clients of this other party, in a spate of misguided anger, and disclosed her reading of the report, which was totally inaccurate and false.
Well, the party's misguided actions ultimately ended in a roughly $750,000.00 verdict against herself.
Understandably, she now wants to spread liability and is preparing a case against this expert on the theory that if he had explained to her the information she acted on, she would have never done what she did, and that it was the expert's duty to fully explain the entire situation to her before she acted rashly. Clearly he would argue the usual crystal ball defense, but as I see it, he simply thought his report was self-explanatory, and that no one would put the spin on the paragraph at issue she did,
I apologize for being obtuse, BTW. I guess my question is would you render an opinion against another computer guy (in general). Also, knowing as little as I have explained, IF the expert omitted fleshing out the details of something that may be potentially used by a party against someone else in a foolish way, such as above, do you think that expert has the duty to forsee such things and do something to CYA?
Again, sorry I can't be more specific. As for me, I passed on the case. She may very well have a viable claim, but it is a little too-too for me.
Looking forward to seeing what you guys think.
It sounds like she's grasping at straws. If I understand it correctly, your would be client wants to sue an examiner for her perception of his report.
The questions really are
1. Were his findings correct?
2. Was his report correct?
3. Did he miss something that he should have found?
It sounds like she was trying to say that regardless of #1 through #3, the fact that she didn't understand it was the fault of the examiner. I disagree, and it sounds like you did too.
Your question is perhaps too vague to answer.
As a matter of practice, I personally would not make it a habit of rendering an opinion of someone else's work.
In addition, how can anyone be expected to foresee all possible ways information presented may be (mis)construed, and take steps to avoid such issues?
Unfortunately the way it will probably turn out is being settled. The examiners E&O insurance will offer a settlement to make the claim go away. The examiner not wanting to front the cost to defend the claim will be forced to go along. The judgment will be sealed and on next renewal date the examiners insurance rates will rise.
The story line suggests the expert did not enter a caveat in the report do not quote or act on this report until you have discussed your interpretation of the report with me.
I'm sorry to be vague, but the case is probably betting filed and I think it is better to keep it a general question.
trewmte No, the expert did not have any disclaimer (that I saw, including the original written agreement for the review). It was rather homespun looking to me. However, I think this expert was aware of the fact this woman was very emotional about this lawsuit and the other party. Had I been the expert, I would have been more on the ball about explaining some findings that he barely mentioned. To a layperson, the findings probably looked like the perfect weapon, but were easily explained away as meaningless, and not proof of any ugliness by her former partner (after her contact with various clients, of course). However, the expert omitted to review these findings with her either in person or in the report, and she acted on what she saw to her significant detriment.
Keydet (Hey I downloaded your book, man. It helped me with a shipwreck I had to review, so thanks!)
I often go head to head with experts in civil cases, I nitpick them, they nitpick me. What I find unpalatable is eendering a report in a malpractice matter vs. an expert… "cannibalism" where I don't see any gross negligence.
The problem as I see it, is that it is a lot easy to be a Monday morning QB after the crap hits the fan. That being said, I think that in some instances, we have to evaluate the situation and think "what if", and its all CYA from there.
This is the third malpractice case I have turned down this year. With the growing number of cases that require our expertise, I also am seeing the pendulum swing towards malpractice cases against computer forensic experts, which makes sense, but is troubling.
There are a lot of dumb laypeople angry at their experts about an outcome. Sometimes I think if they can't get even with who they want to take a shot at, they'll take a shot at us instead. This is why I occasionally rant when I see advice being projected into various forums without disclaimers. I am waiting for the day when some idiot looks me in the eye and says "Uh, well some dude in this forum is an expert, so I did what he said and it screwed everything up…" (You get my drift).
Bithead The methodology and findings were very homespun, but irrelevant. The cause of action is based on what he failed to elucidate in his findings, not so much what he did say.
Thanks for your thoughts. Any written standards on disclaimers for forensic experts? I just mae up my own.
Interesting post, made me think, and worry…as i have not included a disclaimer in a report as of yet, but certainly aim to upon completing my next one. Yeah anyone up for posting examples of disclaimers?
I have two things to say Verdad.
1. EVERYONE misses something that should have been found.
2. You said "Had I been the expert, I would have been more on the ball about explaining some findings that he barely mentioned"
Maybe you would have, maybe you wouldn't have, but to say something like that IMHO makes you come across as pompous.
Today them, tomorrow maybe it's you that someone is posting on a forum about and questioning how they would have been more on the ball.
armresl
Thanks for your thoughts.
1. I think the more artful way to phrase this is EVERYONE is asked to only review / focus on certain issues that are salient to the case. Therefore, although there may be other interesting peripheral items out there, we don't necessarilly look for them because we have been requested to do a focused review.
2. I'm probably a little pompous. Seriously, I did mention the Monday morning QB aspect of all of this. I frequently use "Where's Waldo" because it works well. Yes, we know where Waldo is. Yes, in retrospect. I know what happened, and what I would have done differently than this other guy. He failed to explain a finding which unfortunately, was used by someone in a idiotic way.
My question in general was
1. how do you guys feel about doing expert work against other experts?
2. IF the expert omitted fleshing out the details of something that may be potentially used by a party against someone else in a foolish way, do you think that expert has the duty to forsee such things and do something to CYA?
I think if it looks so horrific on its face that it might inspire someone in the case to act to their detriment so that they could go after you later, you may want to consider a good disclaimer at the very minimum. I think in business litigation and divorce cases, this might be particularly relevant.