Every time I am preparing for testimony at deposition or trial, I ask the attorney I am working for whether I should make it “easy” or “hard.” Even very experienced attorneys examining a technical witness often ask the wrong question. In a recent exchange during cross-examination at trial, the issue was whether the opposition’s client had altered a hard drive, rendering it inaccessible by a prior computer forensics expert. The opposition attorney first asked about a particular type of disk encryption. In the follow-up question, the attorney changed the hypothetical and did not specify the supposed encryption mechanism. When he confronted me claiming I had changed my answer, I simply explained that no, he had changed the question. When dealing with technical testimony, seemingly minor details in how the question is asked can alter the answer you receive…
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