Best Practices for Using Experts When Trial Time Is Tight


Increasingly, courts are imposing time limits on trials. In patent cases, these time limitations can be aggressive. As a result, trial counsel must often streamline its presentation of complicated technical information while preserving its ability to present the evidence and testimony necessary to win.

Expert witnesses can help counsel achieve these competing objectives. When used effectively, experts can educate the judge or jury within the imposed time limit without jeopardizing the case. Presenting cogent, credible and understandable expert testimony in a concise manner plays a key role in the outcome, regardless of whether the case is tried before a judge or jury. Counsel should consider employing the best practices outlined below in any technology case, especially when faced with limited trial time.

Start the selection process early. Counsel should consider the selection of experts and develop the substance of expert testimony early in a case, preferably at the very beginning. Work with experts should not be relegated until the close of fact discovery. Developing a well-oiled team of inside and outside experts and testifying and non-testifying experts cannot be done overnight.

Carefully consider inside and outside experts. Many cases need both inside and outside experts. Selecting the right inside and outside experts for the case is vital. It is extremely helpful if the client can identify an inside expert to explain how the technology at issue relates to the client’s business. Make this inside expert a critical link to the client. Early on, engage outside testifying experts who specialize in the litigated area and use them to develop the case. Doing so increases the expert’s ownership of his or her report and helps the expert focus on the central elements to be presented to the court or jury when the trial date arrives. Non testifying experts can be useful to further develop and test the novel or risky case theories. Additionally, if the need or opportunity arises, non-testifying experts can be switched to testifying status. Develop a detailed and focus

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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