Attorney at Law Magazine Baltimore Vol 1 No 5 : Page 9

Expert Witness Being an Expert Witness Part 2: In the Courtroom By Dr. Craig Rosenberg I “ as I testifi ed 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 especial-ly good teachers and can explain technical My primary responsibility was my testi-concepts to a non-technical audience. mony. I spent a lot of time preparing and am convinced that my success on the stand Th e jury found that the plaintiff did in-is because of the signifi cant preparation I fringe on several of the plaintiff ’s patents; did beforehand. I had to fully understand however, they also found invalidity due to all of the strengths and weaknesses of our the substantial prior art that was present-case and the defense’s case, so I reviewed ed. Th is fi nding of invalidity negated the I was in court for almost the entire trial all of the depositions (my own as well as fi nding of infringement. Th is case is prob-and when I wasn’t testifying, my responsi-those of the other experts and witnesses) ably not over and an appeal is likely. bility was to keep my eyes and ears open. and expert reports. I also had to under-I was the expert on the technical issues of stand all prior art patents that were at is-Aft er years of being involved in many the case for which I had to evaluate what sue in the trial. Just as important, I had to dozens of cases that were settled before I saw and heard based on that expertise ensure that I could testify eff ectively, so I trial, it is great to see cases to a trial. Every and advise the legal team accordingly. In role-played my testimony with myself, the day, as we drove to court, I looked forward particular, I focused on the defense’s ex-attorneys on my team, as well as studied to what would happen. I was excited and pert witnesses, evaluating their testimony several books, such as, “How to Become a invigorated to be part of it all. I enjoyed for accuracy and validity and looking Dangerous Expert Witness” by Seak, Inc. being part of a great legal team and being for holes in their logic. My observations My direct examination lasted about four helped to shape our team’s tactics, as well hours. I always kept in mind that even part of our legal system as justice was pur-sued. We worked hard and the stakes were high, but I felt that I was involved with something very important and much big-ger than myself. have worked as an expert witness for many years, providing soft ware, user interface, mobile and human factors expertise primarily for patent cases. Re-cently, I was involved in a patent case that actually went to trial (most are settled out of court), where I testifi ed in court. In part one, I introduced the case and discussed our legal team and the routine during the trial. Th is article will discuss some experi-ences and impressions from the trial itself. 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. Ž£¤“®“š‘ ’Ž&#1b;Ž¡“Œ¤ ¦¡“š‘¤’Ž¡“Š— ’Ž¬žŽ¡“ŽšŒŽ &#0c;£Žš¤Š—œ¤œ¤“˜Ž¡ŽŠ¡“š‘ŠšŠ˜Œœš¨“šŒŽ¤’Š¤ ˜­£¦ŒŒŽ££œš¤’Ž£¤Šš“£‹ŽŒŠ¦£Žœ¤’Ž£“‘›“Ŋ ŒŠš¤ ¡ŽŠ¡Š¤“œš&#0c;“‹Žœ¡Ž’Ššနဤ though an attorney was asking the ques-tions, 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 care-ful to lay the groundwork during direct ex-amination 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 the questions we would ask on direct or cross examination. We also watched the jury closely. Th eir 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 ques-tions by submitting them to the judge. She would then read them to the court to have the experts and the testifying witnesses answer. Th ere was a lot of subtle strategy behind what went on in court. For example, both sides wanted to control the tempo of the trial. Th is aspect of our strategy struck Dr. Craig Rosenberg is a highly respected en-trepreneur, human factors engineer, computer ZJPLU[PZ[ HUK L_WLY[ ^P[ULZZ ^P[O ZPNUPÄ JHU[ trial and deposition experience. He has been HUPU[LNYHSWHY[VMTHU`OPNOWYVÄ SLJHZLZHUK 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 ad-vanced software engineering for mobile, desk-top, Web and embedded devices. Vol. 1 No. 5 Attorney at Law Magazine ® Greater Baltimore | 9

Being An Expert Witness Part 2: In The Courtroom

Dr. Craig Rosenberg


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.

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 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 Verdict

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.

The Experience

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.

Read the full article at http://digital.ipcprintservices.com/article/Being+An+Expert+Witness+Part+2%3A+In+The+Courtroom/2573601/333974/article.html.

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