Why Do My Clients Keep Asking for a Protocol?

Television courtrooms rely upon surprise witnesses and the last-second appearance of earthshattering evidence as a compelling narrative device. Real courtrooms do not. As fun as it seems on TV, trial by ambush is almost entirely a thing of the past in the United States. The rules of evidence and the rules of discovery place all parties on level footing and reduce the drama in the courtroom.

The rules of discovery cover the handling and access to “tangible” things, including physical evidence. As expert witnesses, materials scientists and engineers are often tasked with planning and executing the identification, preservation, transfer, handling, documentation and destructive evaluation of legal evidence. These tasks are almost universally laid out in a “proposed protocol” prior to a joint examination such that all parties can reach a consensus on the planned analysis.

But, like, why? I’ve written no less than fifty protocols over the course of my career, and I had never given a second thought to the procedural underpinnings of the protocol. Are protocols voluntary? If so, why are some protocols court ordered? What information should be included within a protocol? What about arriving at the joint exam and figuring it out on the fly?

I looked into it, so you don’t have to! In this presentation I will discuss the legal mechanisms behind protocols, ASTM standards for evidence handling, and reflect on my own experiences with protocol writing. This presentation is intended to spark conversation in the Q&A as well as the panel discussion.