Being an Expert Witness Part 1: Working with the Legal Team

TASA ID: 3587

I've been an expert witness for many years now, providing software, user interface, mobile, and human factors expertise, primarily for patent cases. This has been extremely interesting work. One interesting fact that many people do not realize is that expert witnesses seldom actually testify in court, because patent cases are almost always settled before they go to trial. That said, I was recently involved as the technical testifying expert in one of the few cases that did go to trial. In this two-part article series, I would like to share some observations from that experience. This article will discuss what it was like to work with the legal team during the trial. Part 2 will provide some observations from the trial itself.

The Trial

I was an expert witness for the plaintiff and the defendant was a manufacturer of GPS equipment and provider of location-based services.  The plaintiff had brought suit over infringement of four user interface patents that the plaintiff authored and owned, meaning that the plaintiff believed the defendant had copied elements of their user interface without obtaining a licensing from them. These were patents that had been granted to the plaintiff by the United States Patent and Trademark Office; they were not patents he had purchased. The case was tried in federal court and took two and a half weeks. My involvement in this case had begun in mid-2012.

The Team

I was part of a team consisting of five attorneys (two of whom were senior attorneys), three paralegals, two trial graphics specialists, and an additional expert witness, who testified on the damages (i.e., the financial harm). The defense team was much larger than our team; they had approximately 14 attorneys and support staff.

Four of the attorneys on our team were active in court, with different attorneys being responsible for different witnesses.

Effective visual presentation of information in court is very important, therefore the graphics specialists had very important roles. One was a graphic designer and the other was a presentation specialist, who ran the audio-visual equipment. Courtroom audio-visual equipment is sophisticated and specialized.  In addition to allowing for information to be quickly displayed (with capabilities for panning, zooming, and highlighting) as the attorneys are speaking, it can provide other capabilities that are important in the courtroom, such as recording what is presented and even allowing the judge to override something so that the jury does not see it if necessary.

The Routine

The trial began on a Monday. I arrived the weekend before the trial so that I could spend Saturday and Sunday on final preparation.  The entire team stayed in the same hotel, where we set up a large suite as a “war room” with everything we needed-- computers, printers, networking gear, documents, files, office supplies, and so on. There was a lot of camaraderie among the team; we got along well. That was important, because we spent a lot of time together.

Jury selection begun on the first day, and then we moved to opening arguments. As plaintiffs, we presented our case first, starting with opening arguments. That took about a week. Then the defense presented their case. Closing arguments followed, then the verdict.

In the jury selection process, known as voir dire, both teams of attorneys and the judge questioned prospective jurors to determine if any of them have hardships that would prevent them from participating on the jury or are biased and would not be able to deal with the issues fairly. These jurors can be dismissed for hardship reasons or cause. In addition, attorneys each have a fixed number of preemptory drops, which are used to dismiss jurors for any reason at all.  The attorneys use these preemptory drops to dismiss jurors that are likely to be unsympathetic.  Voir dire is also an opportunity to get to know the jury in a small way, in order to figure out how best to present the case to them. From a pool of 45 total jurors, we selected eight.

During the trial, we worked very hard. Sixteen hour days were the norm, and we worked weekends as well. The days settled into a routine. Our team met for breakfast at 7:00 AM, and we headed to the courthouse (a 20-minute drive) by 8:15 AM. Court began at 9:00 AM, and we were usually done around 5:00 PM. We had an hour for lunch, and one brief break in the morning and one in the afternoon.

The evenings were quite busy. We sometimes took about 60 to 90 minutes for dinner, then were back to work by 7:00 PM.  On busier days, we would order in room service.  The two legal teams were in frequent contact after hours: by 7:00 PM, each team had to disclose to the other team what material they were presenting the next day and then we had a call at 9:00 PM to review the material to determine if there were any objections. We tried to resolve those objections on the 9:00 PM calls; if we could not, then we would present to the judge the next morning, and she would rule. The teams would often bargain on these calls to resolve any objections, one side making concessions in return for something else. The preference was not to put an objection before the judge unless we had to. Our interactions with the defense attorneys were always professional. We were usually done by midnight, although some days we were working as late as 2:00 AM.

All of this work was in preparation for our time in court, which I found to be a unique, exciting experience. I'll discuss that in Part 2 -- my role in the courtroom, what it was like to testify, and some observations on how the legal process worked.

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The expert is an entrepreneur, human factors engineer, computer scientist, and expert witness. You can learn more about him by contacting TASA.

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