The Business/Legal Investigator |
April 3, 2009 |
| In This Issue: |
The Battle of the Experts
by David B. Watts, CLI, CFE
Forensic Linguistics
by Robert Leonard, Ph.D.
Welcome!
In this issue of The Legal Investigator we discuss expert witnesses. Over the years I have been tasked to either locate the right expert for our case or to conduct background research on an opposing expert. There is always a specific technical issue to be argued, which is often referred to as "The Battle of the Experts." This month I put forth the rationale and some methodry employed by legal investigators when taking on this type of assignment.
Scroll down further and you will meet an expert witness who practises in the very limited field of Forensic Linguistics. Dr. Robert Leonard is one of only a handful of forensic linguists in the world. I am grateful that he agreed to introduce us to this fascinating field through our newsletter.
Unlike the document examiner who analyzes handwriting by examining pen strokes, writing pressure, erasures, etc. (See "Questioned Documents" in our October 2008 issue); the forensic linguist reviews writing style, choice of words, education level and other indicia peculiar to an individuals's speech pattern and writing ability. Dr. Leonard would be the expert to call upon when, for example, you require the profile of the author of an anonymously written document. His resume is too extensive to include in this newsletter, so visit his website for a more complete picture of his background and what he can do for your law firm in the future.
Respectfully,
David B. Watts, CLI, CFE
ALLIED BUSINESS SOLUTIONS, a soley owned
d/b/a of Interprobe Affiliates, Inc., a Florida Corporation
FL License No. A89-00394
THE BATTLE OF THE EXPERTS
by David B. Watts, CLI, CFE
In legal context, the expert witness is a person who possesses skill and knowledge in some art, trade, science or profession that exceeds that of the average man and presents his opinions and conclusions before the Court. While expert witnesses come from every conceivable field of human endeavor; we most often associate them with engineering and the sciences.
The American Trial Lawyers Association lists expert witnesses and there are various other publications that offer the same. The major drawback to going this route is engaging a professional testifier. The perception is that he will agree to say anything, as long as he is paid his fee. You do not want your expert to be looked upon as "the hired gun." The better choice in my experience is to locate, interview and research experts who do not primarily depend upon providing testimony for a living. They can be found in colleges and universities all around the country, as well as in industry, and usually come across as more genuine. It is true that academia is the normal place to look for an expert, but we should not overlook those with limited formal education who have a wealth of experience in a given field, such as auto repairmen or construction tradesmen.
Once satisfied that the proposed expert knows the subject matter and, of course, would make a good appearance, etc., I always look for that moment when his response to a question is, "I don't know the answer to that...out of my area of expertise." His subsequent usefulness to our case should not be jeopardized by over-reaching in his responses. He knows what he knows and should stay within those confines without straying into uncharted waters. I also look into other testimony he may have given to avoid any conflict with the issue before us.
That brings us to researching the opposing expert. Expert witnesses go into great detail enumerating their past accomplishments. They list their degrees, publications, client list and, most importantly, their past cases. If we don't have his CV, the internet usually supplies his web site as a starting point. After confirming the obvious (education and other claims), we delve into the past case work. Would it surprise you to know that he won't likely list those cases where his side lost based on his expert testimony? Theses are among the cases we want to find. We contact opposing experts, law firms and even Court Clerks. We get copies of depositions where he has taken a specific stand on the issue and compare it with his position in the current matter. The hired gun-type, as well as others, can best be tripped up by using his own prior testimony against him!
Finding, vetting and researching the expert witness is time consuming and tedious in nature. Nevertheless, expert testimony can make or break a case, thus the choices we make are important to the client. The Legal Investigator is ideally suited to undertake expert witness inquiry, considering his research expertise and grasp of legal issues.
We look forward to discussing expert witnesses with you, when the need arises.
FORENSIC LINGUISTICS
by Robert A. Leonard, Ph.D.
Forensic Linguistics responds to legal questions that involve language. To understand the law, one must understand language. In the US legal system, everthing is language: statutes, subpoenas, warrants, questions, testimony, confessions, ad infinitum. The forensic linguist addresses everything from plagiarism, contracts, trademarks and patents to threats, hate crimes, kidnapping and murder. The discipline augments legal analysis by applying rigorous, scientifically accepted principles of linguistic analysis to legal evidence.
Unlike absolute identification of an individual, as expected in finger- prints or DNA analysis, linguistic analysis builds a profile of the author's written or spoken word. It is the actual use of language through patterns attributable to dialect, experience, and individual habit that contributes to the profile and, ultimately, to the overall investigation. Specific word usage, spelling, sentence construction, regionalisms, work jargon and probable education level are all considered elements of the forensic linguistic examination.
A case involving the kidnapping of a juvenile presents a perfect example of the usage of Linguistic Forensics. The parents found a pencil-scrawled note on their doorstep. Close examination of the ransom note assisted greatly in narrowing down the search for the kidnapper. The evidence pointed to a well educated male from Akron, Ohio. How can anyone arrive at that theory with just the examination of a note? The examiner noted misspellings (Kops, not Cops, Dautter not daughter and Kan not can); yet the writer spelled other words correctly (diaper and precious). The punctuation was fairly standard throughout the note and sentence structure suggested fluency and practise in the English language. Clearly, the writer was obfuscating his writing ability in an attempt to throw the police off. This strongly demonstrated a well educated person.
The clincher in identifying the man was a phrase he used within the note. He ordered the parents to leave the ransom in a diaper pail on a devil strip. It is only in Akron, Ohio that the grass strip between the sidewalk and the road is called the devil strip! Even in nearby Cleveland that term is not used. Inasmuch as the police short list of suspects had only one well educated man from Akron, Ohio, the man who wrote the note was identified.
As an expert witness, the Forensic Linguist is bound both morally and professionally to describe the language examined as a neutral observer, not slanting conclusions to one side or the other. Engaging the professional and special talents of the Forensic Linguist is advised when one requires a scientific profile of the author of a given writing.
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Dr. Robert Leonard's specialty is the forensic analysis of language. He has worked for New Yorker Magazine, ABS-TV's Investigative Unit, as well as the FBI and various other federal and state police organizations and law firms in both criminal and civil matters. He is the Director of Hofstra University's innovative Forensic Linguistics Project. We suggest you go to Dr. Leonard's web site for more information on Forensic Linguistics.
E-Mail: Robert.A.Leonard@hofstra.edu.