Menu
0

800-523-2319experts@tasanet.com

Articles

Being an Expert Witness Part 2: In the Courtroom

TASA ID: 3587

I have worked as an expert witness for many years, providing software, user interface, mobile, and human factors expertise, primarily for patent cases. Recently, I was involved in a patent case that actually went to trial (most are settled out of court), where I testified in court.  This series of articles is about that experience. In Part 1, I introduced the case and discussed our legal team and the routine during the trial. This article will discuss some experiences and impressions from the trial itself.

During the Trial

I was in court for almost the entire trial and, when I wasn't testifying, my responsibility was to keep my eyes and ears open. I was the expert on the technical issues of the case, and I had to evaluate what I saw and heard based on that expertise, and advise the legal team accordingly. In particular, I focused on the defense's expert witnesses, evaluating their testimony for accuracy and validity, and looking for holes in their logic. My observations helped to shape our team's tactics, as well as the questions we would ask on direct or cross examination.

We also watched the jury closely. Their responses and reactions, no matter how subtle, mattered a lot to us. We wanted to know what they were thinking because, in the end, that was what really mattered.

In this trial, the jurors could ask questions, by submitting them to the judge, which she would then read to the court to have the experts and the testifying witnesses answer.   We would try to gauge what the jury was thinking based on these questions

There was a lot of subtle strategy behind what went on in court. For example, both sides wanted to control the tempo of the trial. This aspect of our strategy struck me as being similar to a chess match. We wanted to end the day with a positive point for our side; we wanted that to be the jurors' last impression, the thing they were most likely to think about that night. This could be a challenge, because we could control the timing of our direct testimony (because we were asking the questions), but had no control over how long cross examination would take.

Testifying

My primary responsibility was my testimony. I spent a lot of time preparing, and am convinced that my success on the stand is because of the preparation I did beforehand. I had to fully understand all of the strengths and weaknesses of our case and the defense's case, so I reviewed all of the depositions (my own as well as those of the other experts and witnesses) and all of the expert reports. I also had to understand all of the other prior art patents that were at issue in the trial. Just as important, I had to ensure that I could testify effectively, so I role-played my testimony with attorneys on my team, as well as studied several books, such as How to Become a Dangerous Expert Witness by Seak, Inc.

My direct examination lasted about four hours. I always kept in mind that, even though an attorney was asking the questions, my responses were for the jury. I was careful to maintain eye contact as I testified -- with the attorneys as well as the jury. I knew that cases such as these were decided on the merit of the facts, but I also realized that the impressions of the jury regarding how likable someone is would also matter.  

Even as I was testifying under direct examination, I was planning ahead for the cross examination. Obviously, I didn't want to misspeak in a way that would be beneficial to the defense, but I was also aware of issues that would come up in cross examination and I was careful to lay the groundwork during direct examination for questions that I knew would come up during cross.

This was a tremendous amount of information to commit to memory regarding my testimony.   There were about 12 linear feet of documents that I had reviewed and needed to be familiar with for this trial. However, my preparation gave me a lot of confidence, so the facts came easily and naturally and I could concentrate on communicating effectively and connecting with the jury as I testified.

I was aware that jury members were not experts in patent law or user interface or GPS issues, and that one of my responsibilities as I testified was to explain relevant concepts to jurors at a level that they could understand. Attorneys recognize this, and look for expert witnesses who are especially good teachers and can explain technical concepts to a non-technical audience. I needed to be an effective and likable educator for the jury, and this is an area that I greatly enjoy.

One of the things that really struck me from this experience was that, in trials like these, the legal system asks a lot of jury members. They are often dedicated and are willing to provide an important civil service but they were asked to make important decisions in a highly technical field of engineering and patent law and they are not experts in that field.  I was struck by the minimal amount of on-the-fly education that these jurors received.

The Verdict

The jury found that the plaintiff did infringe on several of the plaintiff’s patents; however, they also found invalidity due to the substantial prior art, meaning that, in the jury's view, the innovations protected by the plaintiff’s patents were predated by other prior art so the patents should not have been granted by the United States Patent Office. This finding of invalidity negated the finding of infringement. This case is probably not over; and an appeal is likely.

The Experience

After years of being involved in cases that were settled before trial, it was  great to see a case through to a trial. Every day, as we drove to court, I looked forward to what would happen. I was excited and invigorated to be part of it all. I enjoyed being part of a great team, and being part of our legal system as justice was pursued.  We worked hard and the stakes were high and it was stressful at times, but I felt that I was involved with something very important and I learned a lot. It's a noteworthy experience and will utilize what I have learned going forward in my next case.


This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.

Previous Being an Expert Witness Part 1: Working with the Legal Team
Next Litigators: Five Secrets to Getting the Best Return on Investment (ROI) from Experts
Print
Tasa ID3587

Name:
Email:
Subject:
Message:
x

Let Us Find Your Expert 

Note: This form is to be completed by legal and insurance professionals ONLY. If you are a party in a case that requires an expert witness, please have your attorney contact TASA at 800-523-2319.

Submit

Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts

Testimonials

  • I think it's always good to have access to experts when [TASA] make[s] the process so easy."

    Scott McIntosh, Lewis McIntosh & Teare, Royersford, PA

  • As a busy practitioner, managing a sizeable caseload, I can use all of the help available to me. If I can outsource a task, particularly one as important as securing a qualified expert, I will jump at the opportunity. I use TASA in nearly every case where I need to find an expert witness, be it an engineer, an architect, an economist, etc. They have thousands of qualified experts to refer in virtually any field. Best of all the process is extremely simple. When I need an expert I simply contact TASA, whose knowledgeable representatives ask you targeted questions about your case, your legal theories, and your goals, in order to find the right expert for your case. I usually receive CVs and calls from the potential expert within hours. If you find the originally selected person is not a good fit – for whatever reason – TASA will work with you to find the right person. I would happily recommend this service to any attorney."

    Patrick K. Gibson, Gibson & Perkins PC, Media, PA

  • Ms. Darlie I. McDonald RN was awesome on the witness stand, and we prevailed in our case to the tune of  [a] (highly unusual [amount] for a medical malpractice [case] in our area).  I'd highly recommend her."

    Shane Reed, Shane A. Reed Law Office, Jacksonville, OR

  • I appreciate your inquiries and offers of assistance as well as the consistently high-quality, well-organized, and erudite TASA webinars, which invariably have excellent presenters."

    Maurice S. Kane, Cummings McClorey Davis Acho and Associates PC, Riverside, CA

  • Steven Kursh was an outstanding technical expert on our ecommerce IP lawsuit. He completed a massive amount of work on extremely complicated material, in a very short period of time. His work product was first rate and I think he would have done a terrific job if the case proceeded to trial. He is very articulate and helped us. I only wish we had gotten him involved sooner in the litigation."

    Daniel J. Brown, Reiss Sheppe LLP, New York, NY

  • I thank you all for the response to my request for an expert witness...Both Mr. Scott and Mr. Bianchi appear to be well-qualified for this case, but we have hired another expert. As always, I was impressed by TASA's ability to produce exceptionally well-qualified candidates with great speed."

    John Thomas Dzialo, The Law Offices of John Thomas Dzialo, Santa Ana, CA

  • Thank you for your quick response and the names of the two proposed experts. The situation that gave rise to our search for these experts has resolved and we will not need to retain them. However, we will continue to keep TASA in mind as these needs arise from time to time as your breadth of coverage for experts of all types is unparalleled, in my experience."

    Bart W. Brizzee, County of San Bernadino, San Bernadino, CA

  • I have used TASA for the last five years for locating an expert for many personal injury cases. On each and every occasion, TASA was able to find me more than one qualified expert. With such a variety of experts, I was able to select one who met my client's needs in prosecuting these claims. I found the experts TASA referred not only qualified, but available on a moment's notice. Your fees are reasonable and fair, and I will continue to use TASA for the remainder of my career."

    Robert Oushalem, Esq., The Law Office of Robert Oushalem, San Jose, CA

  • I recently used TASA for the first time to locate an expert to testify in a case requiring rather unusual expertise and where there were no applicable regulations or standards for guidance. TASA referred an expert in California who was everything a lawyer looks for in a forensic expert. He was promptly available for consultation, efficiently prepared for deposition and trial and very persuasive and credible with the jury. TASA's administrative services and assistance in locating this expert were excellent, and we would certainly use both the expert and TASA in the future."

    Theodore Phillips, Miller Hauser Law Group, LLP, Placerville, CA

  • TASA has always given me first-class service, but in a recent matter, TASA found the 'needle-in-the-haystack' expert witness we feared didn't exist. We needed an expert for a very narrow and limited issue in a very narrow and limited industry. Because TASA has an extensive expert witness database, it was able to give us a referral almost on the spot. It's why I always turn to TASA first."

    Kathleen A. Herdell, Law Offices of Kathleen A. Herdell, St. Helena, CA

  • There are numerous companies that provide litigation experts. However, I always choose the TASA Group because of their quick response in finding a qualified expert for my particular case. I have extreme confidence in the TASA Group and will continue to use their services in the future."

    Katie A. Killion, Esq., Chiurazzi & Mengine, LLC, Pittsburgh, PA

  • I spent hours trying to locate an expert in a very technical case involving a defect in a medical device. I could have saved a lot of time by calling TASA first. Within hours, I was supplied with the name of an engineer who had more than 30 years of job training, education and expertise in the precise area involving the device. Bravo TASA!"

    Timothy W. Peach, Partner, Peach & Weathers, San Bernardino, CA

  • We were involved in a case pending for more than five years with seven parties from three states. Three mediations failed before we looked to TASA for an expert. TASA referred an expert who clearly understood the complexity of the project and could effectively support his opinion. If it weren't for his expert advice and deposition testimony, the case would not have settled. Interestingly, the case settled within 90 days from the date this expert began."

    Renee Colbert, Esq., Corporate Counsel, W.G. Tomko, Inc., Finleyville, PA

  • Using TASA to find experts for defending our client in a negligent homicide case ended up being one of the most important decisions we made in trial preparation. The experts they suggested were exactly what we needed for the case. I truly did not expect to find experts that would be such a perfect fit for the nature of case. TASA provided us with highly qualified experts in somewhat narrow fields of expertise. A large percentage of our victory is due to the experts recommended by TASA."

    Marta Farmer, Esq., Carl S. White Law Office, Haver, MT

  • I have used TASA's services since the 1980's and have never been disappointed. TASA is indispensable for locating that hard-to-find expert. TASA representatives have always been courteous and pleasant, with the attitude that they cannot do enough to help. I expect to continue using TASA throughout my career."

    Brad W. Greenberg, Esq., Smyth Law Offices, P.C., Brockton, MA

  • I needed to retain a multitude of scientists from a variety of disciplines for a complex litigation. Initially, I went through a series of interviews with an extremely knowledgeable and professional team of TASA advisors. They were able to find highly qualified experts in the specific fields, all of whom turned out to be superior in qualification and area of expertise to my adversary’s experts. I am a TASA believer!"

    Nooshin Namazi, Partner, Nicoletti Hornig & Sweeney, New York, NY

  • TASA always comes through in the difficult IP cases. Their representatives work with you to refine the search criteria and quickly send you a list of very qualified experts."

    Timothy L. Boller, Principal, Seed Intellectual Property Law Group, PLLC, Seattle, WA

  • Special thanks to our TASA referral advisor for her quick response to our initial request—we were extremely happy with how fast TASA was able to assist us! Your group does excellent work, and it is always my first stop when looking for an expert."

    Susanne K. Sullivan, Senior Attorney, Southwest Airlines Corporation, Dallas, TX

  • When we needed an expert in a patent infringement lawsuit, we turned to TASA. We were looking for a witness qualified in two unrelated technical areas, and TASA worked with us to identify and refine our requirements. TASA performed well, promptly providing us with several excellent candidates to consider, one of whom we retained."

    Joseph T. Miotke, Partner, IP Practice Group, Michael Best & Friedrich LLP, Milwaukee, WI

  • Our team had a very positive experience with TASA. The Expert was professional, efficient, and certainly an expert in his field. His work and testimony contributed to a winning decision for our client! We will recommend the Expert and TASA whenever appropriate."

    Stephanie Sprague, Esq., CT

  • (The Expert) WAS A PERFECT FIT for my case: qualified, competent, easy to work with, attentive to detail, knowledgeable, smart, communicative, enthusiastic, resourceful—have I left anything out? I highly recommend TASA and would be happy to share my experience with anyone else. Thank you!"

    Michael Porrazzo, Esq., The Porrazzo Law Firm, Mission Viejo, CA

  • The expert was very thorough. TASA was quick to respond with an answer to my request. I have used TASA in the past under various other law firms and have been pleased. TASA continues to live up to expectations and then some."

    Anne Desormier-Cartwright, Esq., Jupiter, FL

  • Your organization found us an appropriate expert witness in less than one day. This was excellent service. The expert you found was excellent and a pleasure to work with."

    William A. Ehrlich, Esq., Allentown, PA

  • (The Expert)…accomplished exactly what we wanted. TASA was very prompt and efficient in locating him. All fees were reasonable."

    J. Michael Lehman, Esq., Bruce, Bruce, & Lehman, Wichita, KS

  • We needed an Internet expert right away to meet a deadline. One phone call to TASA, and in less than a day, TASA called back with a list of 8-10 experts who were exactly what I needed. The TASA expert I chose knew the business and mechanics of the Internet so well—he was a PhD and professor who had written a book on the subject—that he put the fear of truth in the defendant that caused him to settle. When I get the kind of service that I did from TASA, I stick with it and use it again and again."

    Philip Green, Attorney at Law, Green and Green, San Rafael and San Francisco, CA

  • Excellent—in a word. I just do not have the time to hunt for experts. (The Expert) was fantastic. Thank you for providing such a quality service."

    Francesca Carinci, Esq., Steubenville, OH

  • TASA stands for Tops At Serving Attorneys. It’s always rewarding working with TASA."

    Marshall A. Bernstein, Esq., Philadelphia, PA.

  • That was, however, one of the best and most interesting webinars I've seen in the last few years.  Thank you for hosting it and introducing me to such a knowledgeable and caring person." - Referencing the Medicolegal Consequences of Post-Traumatic Stress Disorder in Civilian and Military Populations webinar. 

    Lori Bauer Apodaca, The Law Office of Lori Bauer Apodaca, Los Lunas, NM