Litigators, Small Law Firms

Beyond Biglaw: 3 Tips For Happy Experts

Working with expert witnesses is enjoyable and rewarding -- but it can also be very difficult, for a variety of reasons.

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Working with experts, or as a former co-counsel called, them “the smart people,” is one of the better parts of being a patent litigator. At the same time, working with experts can be very difficult, for a variety of reasons. Not the least of which is the fact that many of the “smart people” are high achievers who are not necessarily used to taking direction. Especially from misguided attorneys who may think they are up to speed on the technical or damages issues that the expert has been retained to help with. For all the self-aggrandizement that patent attorneys engage in because of the fact that they have “technical backgrounds,” there is a serious difference between someone who has practiced at the top of their particular field for decades and a lawyer who obtained an undergraduate or graduate degree some time ago. No matter how strong a lawyer’s technical background is, it is highly unlikely that their knowledge even scratches the surface of what an expert knows.

In fact, the best patent litigators know that it is often folly to engage with an expert on cross-examination regarding broad technical issues. The better approach, rather, is to stick to only those very specific issues that affect the case, and hammer the opposing expert on the technical nuances that favor your side. And because retained experts are not litigation experts (no matter how experienced they are based on giving testimony in prior cases), attacking the opposing expert on “legal issues” can sometimes be productive. How best to cross-examine an expert, both at trial and at deposition, is fertile discussion ground.

For purposes of this week’s column, however, I want to focus on a skill set that is less glamorous but just as important to the ultimate success of your case, and thereby your client relationship: managing your own expert. And getting the best out of them. Because that might be the difference between winning or losing your case and your client.

I always found it interesting that because experts are one the biggest costs in any patent (and I am sure in other types of) litigation, the clients, in particular in-house folk, tend to take a “hands-on” approach in working with the experts. Many clients want to be involved in the process of selecting the experts, for example. And when there is a strategy session with the expert, many clients insist that someone in-house participate. Especially if the expert will be interfacing with technical or financial (for damages) personnel at the company. Likewise, in-house counsel are often found enjoying (or sometimes cringing at) the deposition testimony of their retained experts. So in addition to their importance to success in the case on the merits, how a litigation team manages its experts is often an important metric used by in-house counsel to measure the quality of the representation.

For example, I have been fortunate to work with some of the leading experts in their respective disciplines over the years. And I know firsthand that certain in-demand experts, particularly those that testify at trial often, can have a more direct line to in-house counsel than even trial counsel does (because many companies like to spread their litigation work around to various firms — for cost and conflicts reasons, among other considerations). But when it comes to a case that is going to trial, that same company will often insist that outside counsel work with experts that know the client’s business, and have testified for the client in previous cases. So outside counsel better do a fine job managing the expert, or in-house counsel will hear about it. And no one wants a client to hear that their firm was a “step below” the quality of other firms that the expert has worked with previously on behalf of the client.

There is another reason to impress your experts. Some of them have industry contacts, or especially in the patent arena, patents of their own. If they like working with you, and respect your litigation skills, they can be the source of referrals. So how do you make your experts happy? Indulge them. Bonus them. And spend time in a room with them.

First, indulge them. Not that all experts are prima donnas. But some are. And even the ones that are more down-to-earth are often lionized in their professional lives — by their students, their staff, and even by colleagues. You might think the expert is just a hired gun, or you might even be one of those lawyers who finds anyone not skilled in litigation worthy of condescension, but it is also important to respect the fact that experts are almost always accomplished people. Yes, you can say that they are now working “for you,” but that is often not the healthiest attitude to have. Better to realize that the experts are working “with you” and your team in the hopes of achieving a result for your mutual client.

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So how do you indulge an expert? It will obviously be different for every expert, but an example should be enough to illustrate the point. Once, I was working with an expert who liked to meet on Mondays. But only if we were willing to put him up for the weekend, so that he could both prepare for the meeting without the distractions of home as well as enjoy some downtime in a different locale. Initially, I resisted the idea of letting him fly into the meeting city a day or two early. I was concerned about the additional cost of an extra hotel night, and was also annoyed that myself and other co-counsel would have to travel out on Sunday for the Monday meeting — cutting into our own family time. But all it took was seeing the difference in the expert’s motivation and productivity when we indulged him, versus the time we made him fly in mid-week for a one-day meeting, to make it clear that allowing him his “weekend” was a good investment. So find something to indulge your expert with, and reap the benefits of better work product.

Second, remember that experts are not working with you for the privilege of engaging with one of the nation’s leading legal minds. They are doing so to get paid. For some experts, litigation support can be the sole or leading contributor to their livelihood. But even for tenured academics, an expert gig can be the difference between a three-day Bahamas cruise on Carnival with the family or a Mediterranean jaunt on the “Yachts of Seabourn” or some other fancy outfit. Incentives, particularly financial ones, can help coax out a winning performance from experts. So consider incorporating incentive-based bonuses into the expert compensation package you are entering into. It may just lead to a more motivated expert at an incrementally minimal additional cost.

Third, the importance of in-person meetings with experts is paramount (even if you are connected to your expert via WhatsApp, Facebook, Skype, and YikYak, and message them constantly). When real work needs to get done, you need to be in the same room. Make sure that the other lawyers on the team are participating as well. Especially lead trial counsel. Experts are human, and it takes time to build a rapport. So until “digital” relationships, or relationships with holograms, become more natural than personal relationships, building a rapport with your expert requires face-to-face time. When you do so, your expert will be more emotionally invested in the outcome of the case, and just might give a better performance. And you just may learn something from hanging out with one of the “smart people.”

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

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