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."