Expert witnesses are critical to trial success in patent cases. While fact witnesses lay foundation, establish case themes, and can generate sympathy for one side or the other, it is usually the experts who give the jurors the raw material they need to reach an ultimate decision on liability and damages. The credibility and thoroughness of an expert’s testimony—on direct, cross, and re-direct—can thus have a significant impact on the outcome of a patent case that makes it to trial. The following best practices can help parties find the right experts and prepare them to deliver a standout performance.
Move Quickly to Retain Experts
As a plaintiff, line up technical and damages experts before filing suit. As a defendant, begin the expert search in the days (not weeks) after a suit is filed. Not infrequently, the technical field is narrow and the number of highly qualified technical experts is limited. When representing one of multiple defendants, there are important tactical reasons to retain key experts quickly. Being the first to develop a rapport with an expert who will ultimately testify for multiple defendants can increase an attorney’s influence in strategic decisions about that expert’s testimony. Sometimes, early retention of a particularly strong expert can even lead a plaintiff to consider a favorable settlement in hopes of taking that expert “off the market” before other defendants execute a joint retainer agreement with him or her.
