Scripting an Expert Witness May Produce a Tragedy

By Robert Ambrogi Esq
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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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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