A case lost, repealed or rejected because of experts is far more common than it should be, and is often caused by attorneys hiring inappropriate, under qualified or no experts. Whether you face a class action suit over privacy issues or copyright infringement regarding source code, it is important to have the best expert witnesses working on your behalf.
A perfect example of the importance of expert testimony is Oracle USA Inc. v. SAP AG, Case No. 07-1658 (N.D. Calif). This recent copyright infringement case hinged on the testimony of expert witnesses.
Oracle was awarded $1.3 billion based in part on the testimony of its damages expert, who calculated Oracle’s lost profits to be $1.6 billion. The opposing expert valued losses at $40.6 million. The quality of Oracle’s expert made the difference between an award in the millions and the billions.
Like many recent cases, Oracle was a highly technical case involving complex technology. Evolving technologies are forcing attorneys to take a closer look at their cases to determine the experts needed.
In the pursuit of a testifying expert witness, there are many qualities to consider. Below is a discussion of the most salient characteristics an effective expert witness should possess, but it is in no way a comprehensive list.
The first step in determining the type of expert needed is to decide which experts cannot be used. This includes the opposition’s experts, individuals with connections to involved companies and those with a financial interest in any of the parties.
Determining expertise is often harder than it seems. Should an expert have experience working in a specific industry or for a specific company? Will she be a member of a particular professional organization? Does he need to have industry experience during a certain time frame?
Another question you must consider is how much litigation history the expert needs to have. Are you looking for extensive experience testifying in patent cases? Or is prior expert witness experience not an issue? In the Oracle case mentioned earlier, Oracle’s expert had no prior litigation support experience before his engagement on that case.
Other items to consider include questions of education. Although advanced degrees are a simple determinate of education, extremely successful computer experts often leave school to establish independent companies. These experts can be considered along with traditionally credentialed experts with masters’ and doctorate degrees.
To determine if your expert must have a degree, consider the type of case at issue. If it is a patent infringement case, you might need an expert with an advanced degree and prior patent experience. If it relates to insurance or damages, industry experience will likely be more important.
When experts testify, they are not only expected to understand the technical details of a case, they are expected to communicate those concepts to a judge and jury. These two qualities are often at odds with each other, leading the most educated experts to be incapable of concisely explaining technical facts.
During an interview, an expert once said that “everyone understands wave modulation.” In a better situation, a telecommunications expert used the analogy of two tin cans connected by string to explain the complexities of modern day cell phone technology. Because most jurors have a high school reading level, this simple explanation allowed the typical jury member to understand the patents at issue.
One way of determining an expert’s communication skills is through his speaking experience. Those experts who are university professors or frequently present at industry conferences are often skilled at explaining complex details in a simple manner.
However, being a professor does not always mean that one can teach. Occasionally, professors know their subject matter but are incapable of teaching these concepts to others. Therefore, it is the attorney’s responsibility to confirm communications skills through a phone interview.
Narrowing Down the Options
After determining all the qualifications necessary for your expert witness, you may question the possibility of finding such an expert. There are two basic ways of locating expert witnesses. The first involves contacting your network to ask for recommendations.
Exploring your connections on LinkedIn and asking fellow attorneys for references will help you find an expert, but probably not the expert. Considering the many qualifications of an effective expert witness, many attorneys turn to expert providers.
At IMS, our search process includes thousands of internal and external resources to locate the exact expert needed. The result is a short list of conflict-free and highly qualified experts that fit your criteria.
Once these experts have been presented, an attorney still needs to conduct more vital step: conducting a phone interview.
The phone interview is an opportunity for an attorney to get a better feel for the expert they may work with. In addition to confirming communication skills, an attorney should evaluate an expert’s compatibility with the case.
Some possible interview questions include:
- What is your understanding of the case?
- What is your experience with similar cases?
- How much time do you anticipate working on this case? It is important that the attorney and expert agree on this point before any work begins, to avoid billing conflicts later.
At the end of the interview, consider how this expert would be perceived by the jury. Beware of experts who are overly arrogant or too meek.
With millions of dollars at risk, it is worth the extra time and money to search for the best expert witnesses for your case. Not only should you consider education and industry experience, but also remember to locate experts with presentation skills and an affable personality.
Editor’s Note: This article first appeared in the March 2011 issue of e-Commerce Law & Strategy.