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.

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