Bob Ambrogi interviews Albert Jacobs, Chair
National Intellectual Property Practice, Greenberg Traurig
by Robert Ambrogi -
Editor
BullsEye Newsletter: November 2005
How do you fit a square expert witness into a round case?
You don't, of course, but many lawyers make the mistake of trying. Rather
than tailor their theory of the case to fit the expert's opinion, they
try to shape the expert's opinion to fit their theory.
It is a mismatch that can weaken a case and undermine an expert, says veteran
trial lawyer Albert L. Jacobs Jr., National Chair –
Intellectual Property with Greenberg Traurig in New York.
"I want to build the case based on the expert's view of the issues," explains
Jacobs, a patent lawyer for more than 30 years. "I have my own ideas about
the case, but I'm not hiring an expert to read from a script."
Far too often, Jacobs says, it is obvious to him that the opposing party has
hired its expert for the specific purpose of propounding a point of view. But
when an expert is testifying from a script, it is much easier for the other side
to trip him up.
For this reason, Jacobs says, he advocates bringing the expert on board at the
earliest possible opportunity.
"If I'm the plaintiff, I want the expert on board before we file suit. I
want to work together with the expert and formulate the strongest possible position."
The same holds true when he represents the defendant. "I want the expert
on board as quickly as I can. I want to discuss with the expert his or her views
on infringement or noninfringement and validity or invalidity."
When the time comes to bring on an expert, what does Jacobs look for?
He wants experts who are familiar with the technology, who have testified as
experts before and who are able to explain complex terminology in plain language
the judge and jury will understand.
"You need to assess the expert as a witness. How will he or she hold up?
How will he or she articulate?"
Jacobs does not accept the notion that an expert can be overexposed through too
many trials. No one expects experts to be wholly impartial, he says, and the
accumulated experience of testifying makes them better witnesses.
The more important consideration for Jacobs is how the expert fared at trial. "The
greater danger is if you use an expert who a court found is not credible."
While he prefers an expert with trial experience, he would not rule out using
an expert for the first time if he believes the expert would make a good witness.
He cautions lawyers to remember that, once they identify an expert as one who
will testify, you lose any privilege attached to your prior conversations. "Keep
that in mind when working with an expert at the beginning of a case. Don't discuss
strategy in detail, because that will be discoverable."
Jacobs sometimes hires consulting experts in addition to testifying experts. "You
may find someone with a lot of experience in the technology who can provide useful
scientific information, but who would not make a good witness or who would not
want to testify."
With a consulting expert, you retain the attorney/client privilege
and are able to discuss the case more thoroughly, Jacobs notes.
Once he has brought an expert on board, Jacobs turns his attention to the expert's
report. Here, again, Jacobs cautions: Don't put words in the expert's mouth.
"It is important that the report be the expert's report. You want to avoid
having the attorney write something and have the expert sign it. The expert needs
to be intimately involved in it, and it has to be in the expert's own language."
Far too often, attorneys develop the case, the theory and the issues, and then
look for experts willing to sign on, Jacobs says. He prefers to build his case
around the expert. "I want the expert who is telling the truth, who believes
in what he or she is saying."
After the expert's report comes his or her testimony. The key to preparing an
expert witness to testify, Jacobs believes, is in making the expert comfortable
about standing up for his or her opinion.
In patent cases, in particular, expert witnesses often are scientists. As such,
they tend to be eminently fair and able to see different sides of an argument. "You
don't want the expert to concede the other side's view on cross-examination," Jacobs
says. "You need to give them experience in standing up for their opinion –
sensitize them to the fact that this is not an academic exercise."
With the right expert and the right preparation, says Jacobs, he finds himself
and the expert "in tune" with each other. For Jacobs, that harmony
translates to success in the courtroom.
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