The Trials and Tribulations of Locating Expert Witness Talent

A case lost, repealed or rejected because of experts is far more common than it should be, and is often caused by attorneys hiring inappropriate or underqualified experts to testify for e-commerce and other types of enterprises, or by hiring no experts.

That's right, not hiring experts.

Whether you face a class-action suit over privacy issues or copyright infringement regarding source code, it is important to have the best expert witnesses working on your behalf.

A perfect example of the importance of expert testimony is Oracle USA Inc. v. SAP AG, Case No. 07-1658 (N.D. Calif), a recent copyright-infringement case. In the end, Oracle was awarded $1.3 billion based in part on the testimony of its damages expert, who calculated Oracle's lost profits to be $1.6 billion. The opposing expert valued losses at $40.6 million.

Like many recent cases, Oracle was a highly technical case involving complex technology. The bottom line is that evolving technologies are forcing
attorneys to take a closer look at their cases to determine the experts they need.

Specialization Merits Special Attention

Because of specialization in the e-commerce industry, many attorneys are realizing the value in locating the best expert witness for a case. In some situations, the legal issues involved in e-commerce are the same as those that govern traditional commercial cases. Patent-infringement, breach-of-contract and business-dissolution cases between e-commerce companies are not much different from similar cases between bricks-and-mortar commercial companies. The experts used in these types of cases don't vary much from those used in other commercial litigation, either.

Other legal issues are exclusive to e-commerce. As mentioned in February's issue of e-Commerce Law & Strategy, a current hot topic in e-commerce law relates to collecting user data for behavioral-marketing purposes (see, “New-Use Tracking Tactics Capture Privacy Claims,” at www.ljnonline.com/issues/ljn_ecommerce/27_10/news/154766-1.html). Issues of user privacy, electronic contracts, digital-rights management and information security have resulted in legal battles that force lawmakers to consider the distinct differences between electronic and traditional commerce.

In the pursuit of a testifying expert witness, there are many qualities to consider. A discussion of the most salient characteristics an effective expert witness should possess follows, but the discussion is in no way a comprehensive list of desirable expert-witness characteristics.

Conflict Checks

The first step in determining the type of expert needed is to decide which experts cannot be used. This includes the opposition's experts, individuals with connections to involved companies and those with a financial interest in any of the parties.

Expertise

Determining witness expertise is often harder than it seems. For instance, consider:

• Should an expert have experience working in a specific industry or for a specific company?
• Will he or she be a member of a particular professional organization?
• Does he or she need to have industry experience during a certain time frame?

Knowing the answers to these questions will help you determine where to begin your search.

Certain qualifications can be found through industry associations. For example, if you need a Certified Valuation Analyst to calculate damages, you can explore the membership lists of the National Association of Certified Valuation Analysts.

In other situations, you may want to research former employees of specific companies.

Another question you must consider is how much litigation history the expert you need must have. Ask:

• Are you looking for an expert with extensive experience testifying in patent cases?
• Do you need an expert with knowledge in more than one area related to the case?
• Is the expert a court veteran?
• Is prior expert witness experience not an issue?
• In e-commerce cases, does the witness have or need particular e-commerce experience, either as a worker, an entrepreneur, a lawyer or a technician?

In the Oracle case, Oracle's expert had no prior litigation-support experience before his engagement on that case.

Education

Another criterion to consider is a potential expert witness's education. Although advanced degrees are a simple determinate of education, extremely successful computer experts often leave school with less than what would be considered a terminal degree in that field so that they can establish independent companies. These experts can be considered along with traditionally credentialed experts with master's degrees or doctorates.

For certain specialties, there are no degrees to obtain. Computer modders, who modify computers to enhance speed and appearance, learn their skills on their own. The winners of case-modding competitions often have unrelated careers during the day.

To determine whether your expert must have a degree, consider the type of case at issue. If it is a patent-infringement case, then you might need an expert with an advanced degree and prior patent experience. If the case relates to insurance or damages, then industry experience will likely be more important.

Presentation Skills

When experts testify, they are not only expected to understand the technical details of a case, but are also expected to communicate those concepts to a judge and jury. These two qualities are often at odds with each other, leading the most educated experts to be incapable of concisely explaining technical facts.

During an interview, an expert once said that “everyone understands wave modulation.” In a better situation, a telecommunications expert used the analogy of two tin cans connected by string to explain the complexities of modern-day cellphone technology. Because most jurors have a high school reading level, this simple explanation allowed the typical jury member to understand the patents at issue

One way of determining an expert's communication skills is through his or her speaking experience. Those experts who are university professors, who frequently present papers or give lectures at industry conferences, are often skilled at explaining complex details in a simple manner. However, being a professor does not always mean that one can teach. Occasionally, professors know their subject matter but are incapable of teaching these concepts to others. Therefore, it is the attorney's responsibility to confirm communications skills through a phone interview.

In an effort to appeal to the jury, it is also important to consider regional differences. If your case is taking place in Texas with a Southern jury, you may not want to put a fast-talking Northeasterner on the stand. In this situation, attorneys often ask for an expert wearing a cowboy hat and big belt buckle. When a case is located in New York, they look for suit-wearing individuals.

Accents, regional affiliations and socioeconomic factors will influence a jury's perception of the expert's credibility. An expert may think that $30,000 of stock as part of his investment portfolio is statistically insignificant, but this wealth will be perceived very differently by a jury that earns minimum wage in their jobs.

Daubert

Instead of trying to locate an expert with speaking experience, many attorneys will simply look for expert witnesses with prior testimony experience. In addition to suggesting an ability to communicate with a jury, these experts have the added advantage of having passed a Daubert hearing.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 589 (1993), the Supreme Court upheld the Federal Rules of Evidence, instead of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), as the standard for admitting expert testimony. Daubert set forth certain criteria for a witness to be considered an expert and charged trial judges with serving as the “gatekeepers” of expert testimony.

A subsequent case, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), applied the Daubert standard to the expert testimony of non-scientists, stating that the line between scientific and technical testimony was blurry at best.

Opposing counsel will often make Daubert objections at trial to discredit the testimony of an expert witness. For an expert witness to survive such hearings, he or she must prove sufficient education, industry experience and knowledge of the subject at issue.

Whittling Down the Options

After determining all the qualifications necessary for your expert witness, you may question the possibility of finding such an expert. There are two basic ways of locating expert witnesses. The first involves contacting people in your network to ask for recommendations.

Exploring your connections on LinkedIn and asking fellow attorneys for references will help you find an expert, but probably not the expert. Because of the many qualifications of an effective expert witness, many attorneys turn to expert-providers.

Expert-providers firms fall into two categories: the databases and the search firms. The databases will provide a searcher with a list of names and/or resumes; the attorney then must conduct dozens of conflict checks and vetting phone conversations. The search firms use a longer process to uncover the best talent for your case.

Whichever method you use to locate an expert, the process is hardly complete. Once these experts have been presented, an attorney still must execute two vital steps: reviewing the resume and conducting a phone interview.

When looking at a prospective expert witness's resume, an attorney needs to confirm that the expert possesses the list of specific required qualifications. Make sure to look for any projects that could be conflicts and any items that may be questioned in a cross-examination, or that may bring a Daubert challenge.

Interviewing Candidates

The phone interview is an opportunity for an attorney to get a better feel for the expert with whom he or she may work. In addition to confirming an expert-witness candidate's communication skills, an attorney should evaluate an expert's compatibility with the case.

Some possible interview questions include:

• What is your understanding of the case? This is a perfect opportunity to see whether the expert understands the needs of the case. It also allows you to see whether the expert has prepared for the interview. If the expert does not prepare for an interview, then he or she will probably not prepare adequately for deposition or testimony.
• What is your experience with similar cases? You'll want a fairly detailed accounting of the potential expert witness's experience in the type of case in which he or she will be testifying. You may find either that the potential expert witness has insufficient experience, or sufficient experience, plus additional knowledge that may well be useful to your client.
• How much time do you anticipate working on this case? As soon as an expert understands the details of a case, he or she should be able to estimate the amount of time it will take to perform each task. The length of time required for laboratory work, for example, will be very different from the length of time spent on patent evaluations. It is important that the attorney and expert agree on this point before any work begins, to avoid billing conflicts later.

At the end of the interview, consider how a jury would perceive this expert. Beware of experts who seem to be arrogant or appear to be too meek.

Conclusion

With millions of dollars at risk, it is worth the extra time and money to search for the best expert witnesses for your case. Not only should you consider education and industry experience, but also remember to locate experts with excellent presentation skills and an affable personality.

A case lost, repealed or rejected because of experts is far more common than it should be, and is often caused by attorneys hiring inappropriate or underqualified experts to testify for e-commerce and other types of enterprises, or by hiring no experts.

That's right, not hiring experts.

Whether you face a class-action suit over privacy issues or copyright infringement regarding source code, it is important to have the best expert witnesses working on your behalf.

A perfect example of the importance of expert testimony is Oracle USA Inc. v. SAP AG, Case No. 07-1658 (N.D. Calif), a recent copyright-infringement case. In the end, Oracle was awarded $1.3 billion based in part on the testimony of its damages expert, who calculated Oracle's lost profits to be $1.6 billion. The opposing expert valued losses at $40.6 million.

Like many recent cases, Oracle was a highly technical case involving complex technology. The bottom line is that evolving technologies are forcing
attorneys to take a closer look at their cases to determine the experts they need.

Specialization Merits Special Attention

Because of specialization in the e-commerce industry, many attorneys are realizing the value in locating the best expert witness for a case. In some situations, the legal issues involved in e-commerce are the same as those that govern traditional commercial cases. Patent-infringement, breach-of-contract and business-dissolution cases between e-commerce companies are not much different from similar cases between bricks-and-mortar commercial companies. The experts used in these types of cases don't vary much from those used in other commercial litigation, either.

Other legal issues are exclusive to e-commerce. As mentioned in February's issue of e-Commerce Law & Strategy, a current hot topic in e-commerce law relates to collecting user data for behavioral-marketing purposes (see, “New-Use Tracking Tactics Capture Privacy Claims,” at www.ljnonline.com/issues/ljn_ecommerce/27_10/news/154766-1.html). Issues of user privacy, electronic contracts, digital-rights management and information security have resulted in legal battles that force lawmakers to consider the distinct differences between electronic and traditional commerce.

In the pursuit of a testifying expert witness, there are many qualities to consider. A discussion of the most salient characteristics an effective expert witness should possess follows, but the discussion is in no way a comprehensive list of desirable expert-witness characteristics.

Conflict Checks

The first step in determining the type of expert needed is to decide which experts cannot be used. This includes the opposition's experts, individuals with connections to involved companies and those with a financial interest in any of the parties.

Expertise

Determining witness expertise is often harder than it seems. For instance, consider:

• Should an expert have experience working in a specific industry or for a specific company?
• Will he or she be a member of a particular professional organization?
• Does he or she need to have industry experience during a certain time frame?

Knowing the answers to these questions will help you determine where to begin your search.

Certain qualifications can be found through industry associations. For example, if you need a Certified Valuation Analyst to calculate damages, you can explore the membership lists of the National Association of Certified Valuation Analysts.

In other situations, you may want to research former employees of specific companies.

Another question you must consider is how much litigation history the expert you need must have. Ask:

• Are you looking for an expert with extensive experience testifying in patent cases?
• Do you need an expert with knowledge in more than one area related to the case?
• Is the expert a court veteran?
• Is prior expert witness experience not an issue?
• In e-commerce cases, does the witness have or need particular e-commerce experience, either as a worker, an entrepreneur, a lawyer or a technician?

In the Oracle case, Oracle's expert had no prior litigation-support experience before his engagement on that case.

Education

Another criterion to consider is a potential expert witness's education. Although advanced degrees are a simple determinate of education, extremely successful computer experts often leave school with less than what would be considered a terminal degree in that field so that they can establish independent companies. These experts can be considered along with traditionally credentialed experts with master's degrees or doctorates.

For certain specialties, there are no degrees to obtain. Computer modders, who modify computers to enhance speed and appearance, learn their skills on their own. The winners of case-modding competitions often have unrelated careers during the day.

To determine whether your expert must have a degree, consider the type of case at issue. If it is a patent-infringement case, then you might need an expert with an advanced degree and prior patent experience. If the case relates to insurance or damages, then industry experience will likely be more important.

Presentation Skills

When experts testify, they are not only expected to understand the technical details of a case, but are also expected to communicate those concepts to a judge and jury. These two qualities are often at odds with each other, leading the most educated experts to be incapable of concisely explaining technical facts.

During an interview, an expert once said that “everyone understands wave modulation.” In a better situation, a telecommunications expert used the analogy of two tin cans connected by string to explain the complexities of modern-day cellphone technology. Because most jurors have a high school reading level, this simple explanation allowed the typical jury member to understand the patents at issue

One way of determining an expert's communication skills is through his or her speaking experience. Those experts who are university professors, who frequently present papers or give lectures at industry conferences, are often skilled at explaining complex details in a simple manner. However, being a professor does not always mean that one can teach. Occasionally, professors know their subject matter but are incapable of teaching these concepts to others. Therefore, it is the attorney's responsibility to confirm communications skills through a phone interview.

In an effort to appeal to the jury, it is also important to consider regional differences. If your case is taking place in Texas with a Southern jury, you may not want to put a fast-talking Northeasterner on the stand. In this situation, attorneys often ask for an expert wearing a cowboy hat and big belt buckle. When a case is located in New York, they look for suit-wearing individuals.

Accents, regional affiliations and socioeconomic factors will influence a jury's perception of the expert's credibility. An expert may think that $30,000 of stock as part of his investment portfolio is statistically insignificant, but this wealth will be perceived very differently by a jury that earns minimum wage in their jobs.

Daubert

Instead of trying to locate an expert with speaking experience, many attorneys will simply look for expert witnesses with prior testimony experience. In addition to suggesting an ability to communicate with a jury, these experts have the added advantage of having passed a Daubert hearing.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 589 (1993), the Supreme Court upheld the Federal Rules of Evidence, instead of Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), as the standard for admitting expert testimony. Daubert set forth certain criteria for a witness to be considered an expert and charged trial judges with serving as the “gatekeepers” of expert testimony.

A subsequent case, Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999), applied the Daubert standard to the expert testimony of non-scientists, stating that the line between scientific and technical testimony was blurry at best.

Opposing counsel will often make Daubert objections at trial to discredit the testimony of an expert witness. For an expert witness to survive such hearings, he or she must prove sufficient education, industry experience and knowledge of the subject at issue.

Whittling Down the Options

After determining all the qualifications necessary for your expert witness, you may question the possibility of finding such an expert. There are two basic ways of locating expert witnesses. The first involves contacting people in your network to ask for recommendations.

Exploring your connections on LinkedIn and asking fellow attorneys for references will help you find an expert, but probably not the expert. Because of the many qualifications of an effective expert witness, many attorneys turn to expert-providers.

Expert-providers firms fall into two categories: the databases and the search firms. The databases will provide a searcher with a list of names and/or resumes; the attorney then must conduct dozens of conflict checks and vetting phone conversations. The search firms use a longer process to uncover the best talent for your case.

Whichever method you use to locate an expert, the process is hardly complete. Once these experts have been presented, an attorney still must execute two vital steps: reviewing the resume and conducting a phone interview.

When looking at a prospective expert witness's resume, an attorney needs to confirm that the expert possesses the list of specific required qualifications. Make sure to look for any projects that could be conflicts and any items that may be questioned in a cross-examination, or that may bring a Daubert challenge.

Interviewing Candidates

The phone interview is an opportunity for an attorney to get a better feel for the expert with whom he or she may work. In addition to confirming an expert-witness candidate's communication skills, an attorney should evaluate an expert's compatibility with the case.

Some possible interview questions include:

• What is your understanding of the case? This is a perfect opportunity to see whether the expert understands the needs of the case. It also allows you to see whether the expert has prepared for the interview. If the expert does not prepare for an interview, then he or she will probably not prepare adequately for deposition or testimony.
• What is your experience with similar cases? You'll want a fairly detailed accounting of the potential expert witness's experience in the type of case in which he or she will be testifying. You may find either that the potential expert witness has insufficient experience, or sufficient experience, plus additional knowledge that may well be useful to your client.
• How much time do you anticipate working on this case? As soon as an expert understands the details of a case, he or she should be able to estimate the amount of time it will take to perform each task. The length of time required for laboratory work, for example, will be very different from the length of time spent on patent evaluations. It is important that the attorney and expert agree on this point before any work begins, to avoid billing conflicts later.

At the end of the interview, consider how a jury would perceive this expert. Beware of experts who seem to be arrogant or appear to be too meek.

Conclusion

With millions of dollars at risk, it is worth the extra time and money to search for the best expert witnesses for your case. Not only should you consider education and industry experience, but also remember to locate experts with excellent presentation skills and an affable personality.