by Robert Ambrogi - Editor
BullsEye Newsletter: May 2007
Just because an expert strikes you as the brightest guy on
the planet, that doesn't mean he is the best witness for your
case, says Roderick B. Williams, an intellectual property partner
with Vinson &
Elkins in Austin, Texas.
With more than 16 years experience as a litigator and trial lawyer, Williams
has come to believe that the most important trait to look for in selecting an
expert witness is his ability to express himself clearly in front of a jury.
Too often, lawyers pick an expert because he has tremendous technical expertise. "But
they don't always take that next step and ask how the expert will appear before
a jury," Williams says.
"Even when experts have the requisite skills and training, often they don't
come across in a clear, understandable way,"
he explains. "The expert talks over the juror's heads, they
get lost and the whole process becomes futile."
This means that the lawyer must perform a balancing act in selecting an expert – finding
one who is knowledgeable but also personable.
"Jurors – and often even judges – will have little-to-no
understanding of the technology. It has to be boiled down to a
level they can understand."
More often than not, experts lack the ability to do that, Williams believes. "Once
you get past the qualifications, you have got to find the guys who can really
communicate to a jury."
As an example of an effective expert witness, Williams – who focuses exclusively
on patent litigation – recalls his recent use of an economics professor
from a Virginia university. "He just had a great, down-home demeanor, like
someone's dad. He was a common sense market economist who could take a dry topic
and explain how it worked in the real world."
When searching for experts, use the phone to start the interview process, but
then meet the potential experts in person, Williams advises. One trick he employs
during the face-to-face interview is to have the expert teach him about the technology. "If
he can explain it to me, that gives me confidence. If he has the ability to do
that, I can get him to where he can connect in the courtroom."
As a patent litigator, Williams has established a record of success handling
cases in the mechanical, medical device, electrical, semiconductor, software,
business method and biotechnology fields. He believes strongly that credibility
is essential in an expert. One key to maintaining credibility is for the lawyer
to let the expert stick to what he knows.
"I have seen some of my opponents’ experts take such incredible positions
that it seriously hurt them," he explains.
"I'm confident that it influenced the rest of the decision."
Many times, this results from lawyers asking their experts to do more than they
should. Jurors "know what they know," Williams says. "They can
tell when someone is really stretching or reaching on a subject."
To avoid this situation, the lawyer should consider retaining multiple experts
in place of just one. "Sometimes an issue can involve multiple aspects that
call for more than one expert. The lawyer could stretch one expert to cover all
aspects, but the expert would not be comfortable in a stringent cross examination."
Once a lawyer has found an effective expert, there is nothing wrong with sticking
with him, Williams suggests, noting that many lawyers feel the need to evaluate
experts independently for each case. "My belief is if we've found an expert
who has done a good job for us in the past, that's the first person I'll start
with."
He also considers an expert's prior testimony and assesses how he performed.
By looking at trial or deposition transcripts and written reports, he can get
a good sense of the expert's credibility and how well he expresses himself.
"Credibility," Williams reiterates, "is just essential."
IMS
Expert Services is the premier expert witness and litigation consultant
search firm in the legal industry. IMS Expert Services is focused exclusively
on providing custom expert witness search services to attorneys. We are proud
to be the choice of 91 of the AmLaw Top 100. Call us at 877-838-8464 or visit
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