How to Be an Effective Expert Witness in Science & Technology Law Cases

By far the most important requirement for an expert witness is that you know the par­ticular subject matter in which you are testifying. Then, you must be able to document your expertise through academic credentials, peer reviewed publications, and in-depth actual experience. Finally, you must look and sound as if you know your stuff – you must be convincing, presentable, credible and unshakable. A tall order.

Prevailing in technical law cases often depends almost as much on the quality of experts as on the skill of attorneys. By quality I mean not only technical knowledge and credibility, but also such factors as stage presence, articulation, self-control, creativity, and confidence. These characteristics are especially important in court appearances.

The opposing counsel can challenge your qualifications as an expert witness in order to reduce the impact of your report, deposition and testimony. This challenge can range from probing questions intended discredit your technical option and skills, or to embarrass you or throw you off your stride. Frequently opposing attorneys will ask challenging questions about your university grades and degrees, your professional licenses, your prior employment credibility or your past expert witness work. There is no end to the list of tactics the opposing council will employ to discredit your impact. You can't get impatient, you always must remain calm and courteous and sometimes you just have to have a thick skin.

Recently I sat through a five-hour deposition while five attorneys were trying to discredit my credibility and testimony. The first 90 minutes was a tedious review of my back­ground, as well as irrelevant personal questions. This inquisition was clearly an attempt to show that I was a "hired gun" who could not be trusted. Later, they asked many questions related to the substance of the case in many different ways with the objective of finding contradictions.

You should testify only those cases in which, in good conscience, you can testify honestly and objectively. You should think of yourself as a teacher instead of an advocate for the party that retained you. You must always be honest and represent correctly the technical and circumstantial facts as you know them.

You must prepare yourself for writing a technical report, deposition, and trial. You should read everything thing your client attorney can provide about the case and ask any questions that may occur to you. Then, you should review everything you can find about the subject area involved in the case in order to be knowledgeable about recent developments or relevant reports. With your attorney, you should agree on key issues and the strategy of the case so you can support his/her arguments.

I can think of two cases in which extensive research and preparation made a big difference in the outcome of a case. While looking at the patented technology for a clothes deodorizer in a patent infringement suit, we found prior art in an out­ of-print book that was not picked up in the patent, academic, or trade literature. This facilitated a satisfactory settlement for the defense. Likewise, in a personal injury case, we unexpectedly found in the literature the probable presence of trace quantities of phosgene, a toxic chemical, when a commercial cleaner passed through an arcing electric appliance.

In a deposition, witnesses are questioned under oath by opposing counsel and their testimony is recorded and becomes part of the record of the case. In a trial, witnesses are questioned both by the opposing counsel and the counsel for whom they are appearing. It is most important that your trial testimony is consistent with your deposition testimony. At a trial you are usually appearing before a jury, so you must not only be careful of your spoken words but also your stage presence and believability. Jurors tend to base their opinions on which expert witness makes a better presentation and appearance, especially when the technology involved is complicat­ed.

It is important to tell the truth. Answer questions concisely with a "yes" or "no" when called for unless the question is unclear, in which case you should ask for a clarification. Don't answer until the attorney has completed asking the question. Never appear hostile, arrogant, or unresponsive.

You should dress conservatively. You should stay calm. You should look the cross-examiner in the eye and sit upright with good posture.

By participating in the legal process as a technical expert witness, you are serving a client and a legal system which needs your expertise. The experience can be productive, individually stimulating and professionally satisfying. I recommend it.

What do you think?

• Have I emphasized the most important points for being a good technical expert witness?
• What other points would you emphasize?
• Do you think it is worth the effort to subject yourself to tough attorneys and the legal process to serve as an expert witness?

Dr. Stanley Tocker, the author of this blog spot, is the Executive Vice President of The CECON Group Inc. and a member of CECON's technical staff. Dr. Tocker is a highly qualified and experienced expert witness and was named to the Delaware Environmental Appeals Board by the Governor of Delaware. A graduate of Johns Hopkins, he received his Ph.D. in Organic Chemistry from Florida State University. His specialties are organic syn­thesis, polymers, pesticides, formulations, and patent strategy.