What is an Expert Witness?
In 1996 I was a technology consultant and author—I’d recently written the second edition of the best-selling Complete Idiot’s Guide to the Internet—when I received a phone call (or was it an email?) from an attorney working for Microsoft. I don’t recall whether this was an in-house attorney or a law firm working for the company (hey, it’s a quarter of a century ago), but in any case, I was informed that they needed an expert witness to review some documents and write a report.
It turns out that Microsoft was being sued for patent infringement. Why? Because they had recently released Internet Explorer (this was the early days of the Web), and that browser had the ability to play actual sounds. Remarkable, eh? (Again, this was a quarter of a century ago, playing sounds on a computer was still something special. The MP3 format wouldn’t begin its meteoric rise until the summer of 1998.)
Microsoft needed a report written about the use of sounds in browsers (they wanted to know about what’s called prior art, technology that pre-dates a patent). I wrote it, sent it in, they sent me a check, and I never heard back about the case again. But that’s what got me started in the wonderful world of expert witnessing.
So, what exactly is an expert witness? I’ve spent many hours this explaining to friends and new acquaintances…let me explain it to you.
An expert witness is a person with some kind of technical knowledge that could be useful to one side or the other in litigation; usually experts are involved in civil litigation, someone suing someone else. Now and then they are also used in criminal cases; you’ll see experts on those true-crime shows that US TV is so full of, explaining to a jury how a “bite mark” proves the accused is guilty, or burn patterns show how a fire must be arson. (Both of these are forms of junk science, by the way—the first is almost always nonsense, the second frequently so—but that’s another issue.)
In the quarter of a century since that Microsoft case, I’ve worked on more than a hundred cases, but only a couple of them were related to the prosecution of crimes. (And in one of those I never got to testify because the prosecution claimed that what I had to say was not relevant…which wasn’t true, but the judge bought it and I was kicked off the case).
Experts may have experience in all kinds of disciplines. Brain surgery, road accidents, oil-field drilling…take a look at SEAK’s directory, for instance, to get an idea of the huge range of different areas in which expert witnesses work. My particular expertise is in the area of Internet technology and digital marketing.
Now, I’ve testified in cases related to trademarks, copyrights, patents, trade secrets, defamation, unfair business practices, fraud, and more. These are what attorneys call “practice areas”; they are different types of law. One attorney might do only trademark cases, another focuses purely on patents, and so on. But I’m not an expert in any of these practice areas per se, my expertise is in, as I mentioned, Internet technology and digital marketing. So, I can work in these practice areas if there’s some aspect of the case that needs interpreting by an expert … in Internet technology and digital marketing.
For instance, I’ve worked in patent cases related to Web-development, SEO, and PPC patents. I’ve worked in defamation cases related to the posting of defamatory statements on Web sites and social-media sites. I’ve worked in trade secrets cases in which one company involved in digital marketing of some form accuses another of stealing trade secrets.
So what makes one an expert in some arena? You don’t need to be a “world expert,” you don’t need to be “the best in your field”…in fact, the bar is surprisingly low. Now, my resume is very strong. I’ve been working in technology since 1979, with software development teams since 1981, online since 1984, on the Internet since 1993…I’ve written around 60 technology books—mostly about the Internet and related issues—started a dotcom funded by one of the world’s largest VC firms, consulted with Amazon, Zillow…I won’t go on.
But I’ve seen law firms using “experts” with a fraction of my experience. So in order to be an expert witness you don’t have to be a world expert, here’s what you need. And I’ll quote, directly from the US Federal Rules of Evidence (which you can read here if you’re interested).
You need to be someone who, based on their “knowledge, skill, experience, training, or education [can] help the trier of fact to understand the evidence or to determine a fact in issue.” (The “trier of fact”? That’s just legalspeak for the judge and jury.)
That’s it. So, to summarize, if you have some kind of “knowledge, skill, experience, training, or education” that the average Jane or Joe on the street doesn’t have, and having this means you are able to explain an issue to the judge or the jury, so that they can understand the evidence being presented and determine what really happened in the case, then you meet the minimum qualifications as an expert.
That doesn’t mean attorneys aren’t often looking for more, though. They may want someone who’s been through the mill before, in particular who has testified in deposition and in trial multiple times before. They may want someone with an advanced degree, someone with Dr. before their name or Phd. after it, or someone with a particularly strong CV in the area of expertise. But as far as meeting the basic qualifications, that’s it.
However, there’s a problem with the basic qualifications. When the other side deposes you (I’ll get to that) they’re going to try to make you look unqualified—worse, to look like an idiot—so if you’re just “lightly” qualified (even if you have enough “knowledge, skill, experience, training, or education” to explain something to the judge and jury), it may not be enough to convince an attorney to take you on. (But again, I’ve seen some experts that were so lightly qualified I thought they’d float away!)
Now, experts are hired by one side or the other; in civil cases, by the Plaintiff or the Defendant. Which means, you might imagine, that you are supposed to plead that side’s case. Well, it’s more complicated than that.
First, the expert should not have a “dog in the fight.” The expert is supposed to be unbiased, to simply examine the evidence and opine on it honestly. And, by the way, the expert cannot be paid based on performance. The expert can be paid by the hour or by the project, but not based on the outcome of the case. Win or lose, the expert gets paid the same.
However, it’s clear that some experts will say whatever you pay them to say. Search Google for bite mark expert testimony and look at some of the “bite-mark” nonsense that’s found its way into the nation’s courts if you don’t believe me. If you dig deep enough, you may also be able to find videos of experts in other arenas saying one thing in a deposition in one case, and the complete opposite in another.
What happens most often, though, is that lawyers go shopping for experts. They interview various expert witnesses and pick the one they feel is not just the most credible, but also most likely to say what they need to help their case. I’ve lost plenty of gigs because it became apparent to the attorneys that I wasn’t willing to say what they needed. And I’ve turned down cases in which I believed the attorneys were looking for testimony that wasn’t correct.
I will say, though, that none of the attorneys I’ve worked with have tried to pressure me to say something I didn’t want to say, something that would suit their case but wasn’t true. I’ve had people ask me if I could say x or y, and follow up with “of course if that’s not true you can’t say it.” I have had a couple who told me what they believed the evidence showed when it really didn’t, but when I explained to them why they were wrong they backed down.
So, what exactly does an expert witness do? No, it’s not just testifying in court. I fact only one case in a dozen has resulted in me testifying in front of a judge or jury. Different areas of the law will work a little differently, but here’s how it goes for me.
In most cases I’m asked to write a report. It may be an initial report, in which I’m providing opinions about the background to the case, or a rebuttal report, in which I’m responding another expert’s report. The purpose of the report is to clearly lay out one’s opinions in the case, so you need to be careful that you get everything down. Forget something and if you do end up at trial, you won’t be allowed to express that opinion; you can only testify related to what you said in the report.
In some cases I may just be writing a declaration, which is really like a small report, though it’s used in a different manner in the litigation process. For instance, it may be used early in the process to convince the court that a plaintiff really does have a case.
The next phase is often a deposition. That’s when the other side’s attorneys put you in a room and grill you, for up to seven hours. They’re going to ask questions about your education and experience, and about your opinions in the case. They’ll also ask what appear to be utterly pointless questions, such as how long you’ve been working on the case, when you first spoke to an attorney involved in the case, who suggested you looked into issue x and question y, and so on.
The overarching goal of the deposition is essentially to discredit you. You’re not adequately qualified; you’re not very smart; you didn’t spend enough time researching the case; you don’t really understand the case; the report wasn’t written by you, it was written by the attorneys; your opinions are not based on “based on sufficient facts or data…[and] the product of reliable principles and methods,” and so on. They’re looking for ammunition they can use to go to the judge and get you excluded from the case, and, failing that, statements that could be used at trial to discredit your testimony—contradictions, for instance. (You said x in your report, but conceded y in your deposition.)
As you can imagine, then, depositions can sometimes be quite stressful, depending on the aggressiveness of the questioning attorney and the complexity of the case. And attorneys can sometimes be pretty aggressive. I’m usually pretty calm in depositions, but in one recently I found myself wagging my finger at the questioning attorney, telling him I didn’t have to put up with his rudeness. (There is a limit to the abuse an expert has to accept!) In another recent deposition the attorney said to me “we’re going to challenge your testimony…I don’t want you to be allowed to testify.” (My retort: “I’m sure you don’t!”)
Once the deposition is over, here’s what’s most likely to happen: the case will settle so it’s all over! In a few cases you may end up testifying at trial, perhaps for just ten or fifteen minutes…but that could be a year or more later in some cases.
The wheels of justice turn slowly, they say…it’s absolutely true!