New technical experts seldom appreciate the constraints and expectations that define the role of a testifying expert in litigation. For the expert, litigation takes place in stages: discovery, reporting, deposition, and trial. While there are more general responsibilities ("bad news early") and techniques that apply to multiple stages, each task presents specific challenges.
I have been through all of these stages of litigation multiple times. I know the uncertainties faced by the neophyte. I have learned and developed approaches, methods and techniques appropriate to the overall role of the expert witness and useful for each stage of litigation. I can communicate technical-expert-to-technical-expert in a language that makes the new expert more effective.
Each report has a purpose. The expert needs to know the theory and narrative of the case in order to work effectively to create a report that best serves the intended purpose. The parties to the lawsuit, through their attorneys (and sometimes the judge), determine the issues to be argued in the case. Although the expert may suggest facts and arguments, the attorneys select which issues they want the expert to address in the report.
The expert is responsible for the statements contained in the report, as to both content and style. The "voice" of the expert is important. In particular, it is not the voice of an advocate. Facts and arguments used in the report should be restricted to elements of the specific disputes in the case. The expert has to consider each statement, reason, and conclusion within the report in the light of possible questioning at deposition. Every statement, reason and conclusion has to be tested against the strongest possible counter arguments and alternative points of view.
The key to deposition prep is fully understanding the landscape of a case, especially the limits that define pertinent questions - and the scope of a responsive answer. "Just answer the question asked" is not enough preparation. Technical people hear technical questions - and are prepared to answer the questions in order to show how smart they are. I have been the subject of 50 or so testimonial events, and I still hear the technical aspect of questions first. Only by understanding the context of the questions with respect to the case can a technical expert give an appropriately responsive answer to a deposition question.
Technical experts commonly assume that they are supposed to resist questions posed in deposition - that they are supposed to contradict any and all implications advanced by their interrogator. The easiest way to get an invalidity "concession" from an expert is to pose an infringement question. Automatic pushback by the expert could well surrender an unappreciated counterpoint. When experts understand the issues fully, their answers match the actual thrust of the question, avoiding pitfalls of disguised interrogation.
Consistent reasoning and consistent characterization of facts in the case are paramount for the expert when testifying at trial. Defensive hair-splitting on cross-examination undermines all other testimony. Once again, a matured understanding of the scope of the issues to be presented at trial is the best possible preparation. The expert cannot be a passive receptacle. Attorneys and experts alike should prepare with "steel man" arguments, testing and defining the boundaries of the case.
I see a lot of poorly written expert reports - just part of the reason for my enthusiasm for writing rebuttal reports. And I have seen quite a few poorly executed expert depositions - in person or just reading transcripts.
Call me. I can help you get the most out of your technical expert, whether neophyte or veteran. Because of my background and experience, I will be much more effective at communicating the substance of the role of testifying expert than any attorney-handlers can ever hope to be.
My 15+years experience as a testifying expert makes me very efficient in taking on new assignments.
Request a CV, recommendations from previous clients, a draft engagement agreement, or other available materials.
Experienced Testifying Expert
Infringement & Invalidity Reports
Rule 11 Research
Direct Examination Prep
The experience of over a decade and a half as a testifying expert makes me very efficient in taking on new assignments. One good way of determining whether I can assist with your case is to request a CV, recommendations from previous clients, a draft engagement agreement, or other available materials.