The President's Column
Over the years as an expert witness I've worked with
a lot of lawyers. Most are really sharp, some are brilliant, and
a few... not so much. Most attorneys know the importance of treating
an expert right. First, it's the nice thing to do. Second, it's
the ethical thing to do. Third, we're the people who get up on the
stand, swear to an oath, present facts that can help your client,
explain complex concepts to a non-technical judge or jury, and ultimately
help bring justice. In this month's Scanning IP section
I talk about my guidelines for lawyers to deal with expert witnesses.
Send me your comments and critiques. I'm always interested
in hearing from you.
President, SAFE Corporation
Guidelines for Lawyers Dealing with Experts
Most lawyers know the importance of treating experts with respect.
Even if we turn out to be ignorant, arrogant, immature idiots, we
hold the keys to presenting the facts and the analysis that will
win your client's case or at least put it in the best light possible
given all of the facts. If we're going to testify, you want us feeling
good about it, about the client, about you, and about ourselves.
Most attorneys know this but some, in the emotion of the "battle,"
forget this. Here's a checklist to serve as a reminder.
- Have us give input into schedules. We know best how
much work an analysis is going to take. And some of us have lives
outside of work (not me, but I've heard that others do). Don't
give us a schedule without our input and expect us to meet it.
- Don't hire us just to keep us off the other side. I've
had this happen. It's flattering, but it's also unethical. I need
to make a living. Also I will never work for you again, and I
will warn my colleagues about you.
- Involve us with crafting the strategy. Don't let us work
in the dark and then complain, for example, that our invalidity
argument hurts the non-infringement argument or vice-versa. And
by the way, a great argument for one will always make the other
much more difficult to show.
- Involve us with claim construction. We have the appropriate
experience to figure out a decent claim construction. Too often
I'm called into a case where the claim construction makes little
sense to me. I need to be educated about how the claims are construed
and then I need to see if I can work with them. Sometimes adding
or removing a word from the claim construction would make things
significantly easier for me to understand and explain to the judge
- Give us enough time to do our jobs. Maybe this is a pipe
dream. Lately, cases have been more and more compressed and I'm
brought in later, probably to save costs. But it hurts the case
and stresses us out.
- Don't antagonize us. We're they guys who are going to
help your client by clarifying their position and explaining difficult
concepts to the judge and/or jury. You don't want us ticked off,
even if we really are stupid jerks. You want us in a good frame
of mind and happy about what we're doing. At least until we're
- Explain your positions to us patiently. If you can't
get us to understand it and adopt it, how can you get a judge
- Don't tell us we have to adopt your positions or we'll lose
the case. We're independent and unbiased. The threat of losing
the case is not a reason for us to support your position, and
stating this can come back to haunt both of us eventually.
- If things aren't going well, meet face-to-face. It's
easier to communicate about difficult subjects. It's easier to
wave hands, draw diagrams, point to things. And it's more likely
for both to see each other as humans, not someone being difficult.
- Don't expect us to understand all the legal issues. I've
met lawyers who didn't understand all the legal issues. I actually
do understand legal issues more than most experts because of my
experience and my writing on the topic. Yet there are still gaps.
And the lawyers can disagree. I've been in many long sessions
where lawyers argued about legal issues.
- Don't believe you understand all the technical issues.
Some of the lawyers I've met were once great engineers. Others
have no engineering experience whatsoever. Some will take my word
completely and others will fight me. I don't mind reasoned debatein
fact I enjoy it. But remember that my understanding of the technical
issues is ultimately what I will present in my reports and my
- Be clear in your instructions. We know you're in a hurry,
but this is critical to getting good information. I've had cases
where I got a quick call to do some analysis and then spent the
weekend setting up equipment, getting results, and writing a report,
only to find there had been a miscommunication about what was
needed. Sure I get paid per hour, but I'd still like to know I'm
doing something useful. I'm sure you and your client prefer that
- Have us sit in on depositions. We can add a lot of knowledge
and we can help craft the direction of the questioning. I was
in one deposition where, searching the Internet, I found an expert's
presentation slides promoting a software method while she was
testifying she would never ever use such an "unreliable"
method. I've also had lawyers call me after a "very successful"
deposition where they thought they'd uncovered some really useful
facts but were asking questions about the wrong technology.
- Don't write the reports and expect us to just sign it.
Our reputations and careers are on the line, not yours. Unfortunately,
some experts do this and collect their checks. I won't and neither
will any expert worth his or her hourly rate.
- Expect us to sleep some time. OK, the lawyers themselves
get little sleep during a case. Me too. I just prefer that you
act as though you care about my getting rest even though we both
know I won't. So don't tell me to be available at midnight, ask
me if I can please make myself available at midnight even though
you know it's a burden. It just sounds nicer.
- Pay us on time or be honest about any problems. Sometimes
clients run into financial trouble. I prefer to work for a client
who is honest about financial trouble than one who constantly
tells me "the check is in the mail." Usually this is
an issue with the client not the lawyer, but I've had lawyers
misplace my final invoice, simply because they had moved onto
other more pressing matters. My payment is a pressing matter,
and a late or missing payment means I'm unlikely to be available
the next time you need my expertise.
- Don't negotiate our fees after the case is over. This
is just poor business practice and makes me not want to work with
you again. The time for negotiation is before hiring me, not after
I've put in time on the case.
- Remember that our job is to be honest and unbiased.
Expect us to point out the bad along with the good. If we find
your client's case doesn't have merit, at least be happy we discovered
that before the other party's expert informed you at trial. You
can settle early or limit the damages or just know that you did
the right thing.
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