Attorney at Law Magazine Baltimore — Vol 1 No 5
Being An Expert Witness Part 2: In The Courtroom
I have worked as an expert witness for many years, providing soft ware, 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. In part one, 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 for which 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. She would then read them to the court to have the experts and the testifying witnesses answer.
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 so that the jurors had a positive last impression to think about that night.
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 significant 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 expert reports. I also had to understand all 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 myself, the 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 with the attorney as well as the jury. I knew that cases such as these are decided on the merit of the facts, but I also realized that the impressions of likeability by the jury also matter. Even as I was testifying under direct examination, I was planning ahead for the cross examination and I was careful to lay the groundwork during direct examination for questions that I knew would come up during cross.
I was aware that jury members were not experts in patent law, user interface or GPS issues and that one of my responsibilities as I testified was to simply 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.
The jury found that the plaintiffdid infringe on several of the plaintiff’s patents; however, they also found invalidity due to the substantial prior art that was presented. This finding of invalidity negated the finding of infringement. This case is probably not over and an appeal is likely.
After years of being involved in many dozens of cases that were settled before trial, it is great to see cases 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 legal team and being part of our legal system as justice was pursued. We worked hard and the stakes were high, but I felt that I was involved with something very important and much bigger than myself.
Dr. Craig Rosenberg is a highly respected entrepreneur, human factors engineer, computer scientist and expert witness with significant trial and deposition experience. He has been an integral part of many high-profile cases and advanced engineering projects for many large companies. Dr. Rosenberg has more than 25 years of professional experience in the areas of user interface design, human factors and advanced software engineering for mobile, desktop, Web and embedded devices.