Finding the experts you need to prove your legal cases can be just as complicated as the cases, themselves. When the case hinges on forgery, it’s crucial that you retain a qualified handwriting identification expert – but how do you know who’s qualified and ready to solve your forgery problem?
The Federal Rule of Evidence §702 indicates that the forensic expert must meet requirements for specific skills, experience, training, knowledge and education.* My 30 years’ experience in the field of questioned document examination has taught me that there are two more critical factors that are as significant as the official requirements.
- Ability to “think outside the box”; and
Thinking outside of the box. This might sound like a business buzz phrase or cliché, but it’s meaningful and relevant. Thinking creatively and contextually matters because handwriting identification is like a puzzle; the analyst must look at each piece of evidence and fit the relevant facts together in order to reach a conclusion.
Imagine yourself in this scenario:
You’re a handwriting identification expert. You enter a law office and are presented with a giant box, packed to the brim with 1,000 questioned documents. The lawyer says, “There are two suspects – senior executives. Your job is to help us identify who forged the signatures, and it must be fast because they company’s reputation is at stake.”
He then indicates that the client is a “respectable company” that is under FBI investigation. The lawyer believes that at least 25% of the 1,000+ documents are forged, and it’s your job to determine which ones they are.
The time-consuming and costly process of comparing each of the 1,000 questioned documents to the known signatures will only tell the client which documents were forged, not which ones were forged by the two suspects.
Remember that this could be make-or-break for this company’s reputation, and time is of the essence. The lawyer has hired you to identify the guilty subjects before the media can pick up the story and it becomes a public scandal.
However, finding matches to the questioned signatures is like looking for a needle in a haystack because there are no comparable exemplars. So, what do you do?
You go back for a closer look. Again and again, you examine the suspects’ signatures. Then, you realize that one suspect has a common first name (like “Joe”). That means that you can focus the investigation on this subject first because you study the patterns of his name very carefully and look for customers with the same name.
It took a few days instead of several weeks, but you found six perfect matches.
Result: One executive admitted that he forged all six signatures. The law firm (your client), was ecstatic because you met its objectives quickly and efficiently; its client (the company’s manager) was happy because he saved thousands of dollars and avoided a PR disaster. The only person unhappy? The VP who forged the documents, of course.
Lesson learned: Knowledge and experience is not enough; an expert needs to be able to perform under pressure, put the client’s interest first, and look at the totality of the data in order to draw well-reasoned and accurate conclusions.
Integrity above all. When an expert is called to the stand, she or he takes an oath to tell the truth. We know this because it’s the law, but anyone who has seen even one procedural drama on TV is familiar with this process. But, what about the part of the oath that swears to tell the “whole truth”? Is it permissible for an expert witness to share only partial evidence? It’s not permitted, but it happens all the time. As a litigator, you’ve certainly been in a courtroom with “hired gun” experts who will share only part of the evidence to help a specific client win a case.
Don’t be fooled by experts who have fancy, expensive charts or visuals with colors, arrows, and other “tricks” to show certain indicators.
In one case, the opposing expert showed only the post-incident exemplars of the known signatures. He never referred to pre-incident signature exemplars that were a perfect match with the defendant’s signature. The plaintiff’s expert, on the other hand, offered into evidence a simple illustrative chart with both pre- and post-incident exemplars. The fundamental differences were clear – the defendant’s expert was not untruthful, but he was showing only one portion of the truth.
Result: The plaintiff’s attorney won this case because the handwriting expert exposed the opposition’s distortion of the truth.
Lesson learned: Judges are not handwriting experts, and that lack of basic knowledge could lead a judge to the wrong decision if not presented with facts that are clear, easy to understand, accurate, and that include each of the elements necessary for the particular case.
The takeaway for a lawyer who needs to hire a handwriting expert is to always do your homework; make sure that your expert is experienced, honest and has the ability to think outside of the box. For a copy of 20 Questions to Qualify a Handwriting Expert, please contact us at [email protected].
Ruth Brayer is a court qualified expert witness speaker and author of Detecting Forgery in Fraud Investigations: The Insider’s Guide. Ms. Brayer is available to deliver a pro-bono CLE program designed to educate the legal community about the handwriting identification process.
The program is entitled “Effective strategies to build air-tight cases.” To learn more about forensic document examination, visit Brayer Handwriting online, or call 212-755-7884.