by Robert Ambrogi - Editor
BullsEye Newsletter: January 2006
In
choosing an expert in patent litigation, the lawyer's gut instinct
is often as important as the expert's scientific savvy. Unfortunately,
lawyers may get it wrong on both counts if they are unsure of
what qualifications to look for at the outset.
Any trial lawyer, veteran or novice, can tell you that an expert's
bona fides are critical to consider. But an inexperienced lawyer
can sometimes be disoriented by the glow of a stellar resume
and set off down the wrong path.
"What makes a good expert is good pedigree," says
Aris K. Silzars, an expert and consultant in display technology.
"The expert needs to have something that clearly identifies
him as a serious representative of the industry or the field."
Silzars, however, has seen cases where the expert has outstanding
credentials, but in the wrong field. "I've seen experts
brought in who had tremendous pedigrees but in the wrong area.
They didn't know what they were talking about. It was easy to
embarrass them in depositions."
As an example, Silzars recalls a case he worked on that involved
a liquid crystal display panel. The opposing side retained an
expert who was an eminent professor at a major university, widely
regarded as brilliant in his field. His field, however, was
computer design, not displays.
Silzars helped his attorneys prepare to question the expert
at his deposition about the fundamental workings of LCD panels.
The expert stumbled, Silzars says. "Here was a guy who,
in his own field, was one of the preeminent lights, but he was
out of his element."
Ability to Teach
A research engineer and manager since 1969 who became an independent
expert in 1994, Silzars has come to believe that pedigree is
only half of what makes a good expert. The other half, he says,
is the ability to teach.
"Having a pedigree is important, but an expert must also
have the ability to reduce complex concepts to normal language,"
Silzars says. "An expert needs to be able to convey and
clarify ideas so that judges, attorneys and jurors can all say,
'OK, now I get it.'"
This is a key skill that is distinct from an expert's technical
qualifications, he believes. "Many of my colleagues can
carry on a wonderful technical conversation, but they are stymied
when they try to convey these technical concepts to others."
How does an expert develop this skill? "You either have
it or you don't," Silzars suggests. "It's a difficult
thing to learn."
Silzars advises lawyers to look for experts who are as sensitive
to the "people side" of an industry as they are to
the technology side. "Most people who go into highly technical
fields may not have as strong an interest in the people side."
He recommends looking for experts who are interested not only
in the technology, but in how that technology moves from the
drawing board into a successful product.
Along with the ability to teach, an expert must also convey
an image of sincerity and honesty, Silzars says. Highly trained
experts sometimes come across as snobbish, even though they
may not mean to, he notes. "You want to come across as
forthright, you want a certain warmth."
Involve the Expert
While selecting the right expert is important, so is how a lawyer
uses that expert, Silzars has learned.
He encourages his clients to make him an active participant
in a case and he strives to keep his rates low so clients will
not be reluctant to use him. He believes he is most useful in
a case when he spends time reviewing prior art, helping to prepare
positions and strategy, and attending depositions of other experts.
"I encourage my clients to have me sit in on depositions.
It is amazing how much honesty that brings to the process. I
can be helpful to my clients in critical times."
As much as Silzars hopes to help lawyers in deposing other experts,
he expects them to help him when his turn comes to take the
deposition hot seat.
Lawyers need to remember that, for engineers and scientists,
a deposition is an alien world, he says. "It is a world
of nuances, of being careful you don't get tripped up."
Of course, it is important for the lawyer to prepare the expert
in advance, but also important is how the attorney supports
the expert during the deposition. There are subtle ways the
lawyer can either support the expert or throw him entirely off
track.
The attorney will get the best out of his expert if he has the
skill to provide positive guidance. "The more the attorney
can do to guide the expert in a positive way, the better the
result will be."
No matter what happens, Silzars cautions, the lawyer should
not tell the expert he is doing a bad job, because the expert
will only become self-conscious and worried and do even worse.
Think of yourself as a coach, Silzars advises lawyers. A coach
cannot teach a player the skills of the game in the middle of
a match, but he can help bring the best out of the player. "This
is coaching junior soccer. Experts are out of their element."
For Silzars, the best attorneys to work with are the ones who
are the most thorough. They make his life harder, he concedes,
but the outcome makes the effort worthwhile. "When it's
all done at the end of the day, you've left nothing to chance,
nothing uncovered. Everything has been talked through and through."
Along with that thoroughness comes the ability of the lawyer
to anticipate what may happen and decide in advance on a course
of action.
The more Silzars is able to work with an attorney in preparing
a case, and the more thorough that attorney in developing a
game plan, the better the outcome overall, he believes.
Still, Silzars says, his ultimate role remains simple. "I
believe that my position as an expert is never to allow a fundamental
technical error to guide us to a false conclusion."
About Aris K. Silzars:
Aris K. Silzars first served as an expert witness
more than a decade ago, after he founded his consulting firm,
Northlight Displays, in Issaquah, Wash.
His expertise is in displays, from computers to laptops to televisions,
and ranges from older CRT displays to contemporary flat-panel
technology.
He became an expert after a career conducting and managing display
research for major companies including: the Sarnoff Corporation,
where he was director of its Display Research Laboratory; DuPont,
where he was senior consultant for electronics; and Tektronix
Inc., where he held a series of increasingly responsible management
positions.
Silzars is the past president of the Society for Information
Display and the chair of its Publications Committee. He organized
and chaired the first Display Manufacturing Technology Conference
in San Francisco in 1994. In 2004, he was the general chair
of the Society for Information Display Symposium and in 2005
was the general chair of the Society for Information Display
Business Conference.
He earned his doctorate in electrical engineering in 1969 and
has master's and bachelor's degrees in physics.
IMS
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