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The Litigators’ Guide to Working with Expert Witnesses

A Litigator's Guide to Jury Consultants

Attorneys who use jury consultants in high-stakes actions have a statistical advantage over those that do not. From pre-trial jury selection to post-trial surveys; a quality, data-driven consultant is a key member of your trial team. Read more >>

The History of the Expert Witness in The United States

The need for experts who could explain complicated details to a lay audience first became obvious centuries ago. As with much of the American legal landscape, we imported the initial idea of the expert witness from England.

How to Help Your Expert Maintain Credibility in Court

Your expert’s credibility must withstand scrutiny. They can have all the degrees, publications and talks in the world and still fold under pressure, blowing up your case during deposition or trial.

Understanding the Difference Between Attorney and Expert Responsibilities

Usually, the line between the role of the attorney and the role of the expert is obvious, but there are some points – perhaps based on type of expertise or the rules of the venue – where it can seem a little hazy. The ideal situation is one where the attorney and expert fit together perfectly. They know their roles and responsibilities, and they address those issues with conviction.

Preparing the Expert for a Dependable Outcome

While tempting to skip, prepping your expert for deposition, and direct and cross examinations is necessary.

Telling Your Story

In order for your client to have a successful outcome, the judge and jury need to understand and believe their story. It is worth your time and the expert’s time to make sure everyone is on the same page, follows the same script, knows their roles, and understands where the story is leading when you begin.

Report Writing: A Delicate Balance

There is a dance involved in report writing. Experts need enough time and information to create excellent reports; attorneys often want to review the reports, but need to be cognizant that any change requests not impact the expert’s opinion or voice; and in the background confidentiality and discovery lurk over all the communication, with rules dependent on the given jurisdiction.

Beyond the Paper Qualifications – Making an Expert Witness Match

When searching for an expert witness, creating the match between case requirements and personalities is a complicated process with a bit of art mixed in.

Expert Witness Testimony: Accuracy is Necessary, but Likability is Next Level

There are certain rules you must follow when giving testimony – to tell the truth, to be impartial, to keep to the rules of the court – but it’s important to consider demeanor and delivery as well. And, sometimes, a little levity and civility.

The Role of the Expert Witness: Finding & Filling the Holes in the Narrative

Rather than attempting to hire an expert who unquestioningly supports your narrative, using a very qualified expert as a sounding board will often bring benefits to your end client. Tapping their expertise — not just to support your case, but also to evaluate your story — can be the best strategy for your client.

Expert Witness Confidentiality & Privilege

Experts are crucial to a client’s case, but they may not understand the rules in effect for their particular matter. To avoid discovery pitfalls, it is important to set expectations at the beginning of the process. Experts should be asked about the confidentiality rules at the start of any discussion with a lawyer.

Expert Witnesses as Teachers

Expert witnesses play myriad important roles in a case, including among others evaluating cases and crafting strategy. Arguably the most important role is as a teacher – educating the attorneys, court and jury about the aspects of the case that fall within their expertise.

Working with your Expert: Creating the Story Together

Working with your experts to develop the story keeps everyone on the same page, helps ensure you have the most supportable case, and benefits experts, attorneys, and your client.

Body Language in the Courtroom: Winning Without Words

Body language, or the nonverbal cues and signals we give off through our movements and expressions, plays a critical role in the courtroom, often conveying more than words themselves can express.

Set Your Expert Witness Up for Success

To fully harness an expert’s value, establishing good channels of communication and setting expectations is key.

Cross Examination Preparation: Finding Your Voice in the Courtroom

Cross examination can be stressful for experts and cause them to inadvertently slip up, so many legal teams will spend significant time prepping an expert. Our experts shared some tips on how to be prepared.

How to Be Viewed as a Credible Expert in Your Field

Being viewed as an expert before ever stepping foot in the courtroom, or with little to no testifying experience starts with respect in the field. Active professionals are the most likely to achieve this level of notoriety through participation at industry-specific events and organizations, notable certifications, and written work in trusted publications.

3 Litigation Trends to Expect in 2023

2023 will undoubtedly be an interesting year for litigation. As we are further removed from the pandemic and technology continues to advance, the trends that emerge now will impact the industry for years to come.

Becoming an Effective Expert Witness: Knowing Yourself

While experience in your field is extremely significant to your success as an expert witness, other factors are crucial to truly being effective. Many of these factors fall under the umbrella of knowing yourself.

Preparing Your Expert Witness for Testimony

Legal teams can help position their experts for success by ensuring they are equipped with everything needed to be convincing and authoritative in the role. Even the most experienced experts need preparation prior to testimony.

Relationship Building is the Key to Expert Witness Searches

Experience and relationship building are still irreplaceable, especially in the expert witness search and referral industry.

5 Tips to Strengthen Your Expert Witness Report

Earlier this year, we had a conversation on our podcast with Insurance Claims Expert, Kevin Quinley. He shared some gems about how to write a successful expert witness report. He highlights timelines, navigating your first draft, breaking it into sections, proofreading and knowing your audience ahead of time for the draft.

Positioning Your Expert Witness for a Successful Deposition

Many unsuccessful expert witness depositions could have been prevented with the right preparation and support. This can be said for even the most seasoned experts, as it should never be assumed preparation is not required.

Tips for a Great Expert Witness Interview

Over the last 27 years, we have coordinated and participated in tens of thousands of expert witness interviews. We’ve seen it all, from perfectly executed interviews to missed opportunities for critical lines of inquiry. Our experience highlights the importance of approaching expert interviews with the right mindset and preparation. It’s easy to get caught up in the details and strategy surrounding the case and miss the chance to gain a better understanding of the expert’s strengths and weaknesses.

The Developing 5G Patent Race

The USPTO recently released a report that argues “no company or country leads in 5G patenting.” The data that underlines this report is pulled from 5G patents that were self-declared, meaning they were not checked for essentiality or validity. Regardless of the difficulty pinpointing a leader, the 5G patent race is becoming increasingly competitive, with 5G on track to become one of the most lucrative Standard Essential Patent (SEP) markets. An SEP is a patent that claims an invention that must comply with a technical standard.

The Broadening Scope of ESG Litigation

Environmental, Social and Governance (ESG) litigation has become dominated by climate lawsuits, most notably filed against global energy companies like Shell Plc and Exxon Mobil Corp. The scope of ESG litigation is expanding, as regulatory developments pose new potential risks for a wider range of organizations. These broadening risks can largely be attributed to the demand for mandatory reporting requirements coupled with current legislation in the area. Now, we are witnessing an influx of lawsuits against both governments and corporations based on ESG statements in securities filings.

Will Courtrooms Enter Virtual Reality?

VR presents an interesting opportunity in the courtroom, allowing juries to partake in a simulation of experiences that brings them closer to events being discussed. Depending on an expert’s practice area, some consider VR a powerful tool in the aid of testimony, helping relay complex information and factual issues.

Trends Impacting Patent Law in 2022

Continued uncertainty in supply chains and the attempts of regulators to catch up to innovation lead many spectators to believe that patent disputes will continue to thrive in the coming year.

Improve Your Remote Collaboration with Experts

The past two years have radically changed legal workflows, taking an already underway meandering course towards using remote collaboration tools and forcing it into a strong current. Historically, litigation preparation has included ample in-person meetings, collaboration processes, and court appearances. Now, for better or worse, virtual collaboration and communication tools are becoming a staple within litigation and increasing the need for remote collaboration protocols.

Proposed Amendments to Federal Rule of Evidence 702

Seemingly capricious applications of Federal Rule of Evidence 702, which establishes a standard for the admissibility of expert witness testimony, have caused frustration among some attorneys for years. Starting in 2017, a committee formed to address the issue and their recommendations are now out. These proposed amendments to Rule 702 could go a long way toward strengthening reliability and benefiting the justice system.

COVID-19 & The Continued Influx of Patent Litigation

The onset of the COVID-19 pandemic in 2020 brought about an influx of patent related litigation. Experts postulate that both the financial pressures related to the pandemic and the increasing strength of the technology sector sparked this increase in litigation. Now, almost two years after the start of the pandemic, this surge continues and could be considered a new normal.

Telematics & The Potential for Litigation

The automobile experience is undergoing drastic changes as improved safety, performance and entertainment options explode. Remember the jealousy of seeing your friend’s minivan with the DVD player? Now, streaming Netflix and playing video games are entering the market to assuage the boredom of rear-seat passengers. As cars become “smarter” and collect more data from users, many fear our privacy will be infringed, which could lead to audits and litigation.

The Overlooked Importance of an Expert Witness Retainer

Expert witness retainers and engagement letters are a staple within consulting and testifying engagements. They allow both parties to put the specific terms of their engagement in writing and avoid pitfalls or misunderstandings that could arise during the term of the contracts (frequently the length of the litigation). The aim is to clearly acknowledge critical terms and mitigate the potential for future issues.

The Continuing Evolution of Litigation Funding: Opening the Gates to Retail Investors?

“Initial litigation offering” (ILO) is a term that was recently coined by Apothio LLC, an agricultural research and commercial hemp company. This new concept is being spearheaded by Apothio to fund its response to officials in California who allegedly destroyed its billion-dollar hemp crop in 2019. The goal is to attract investors interested in a piece of the lawsuit filed against these California officials by launching a $5 million public offering.

MedTech & 5G Licensing Litigation

In an increasingly connected and digitized world, 5G is emerging as a driving force for innovation across industries such as medical technology (MedTech). As we are now in the early stages of the development and deployment of 5G technology, companies and legal teams in this space should be acquainting themselves with the specifics of 5g licensing, as it raises concerns about intellectual property litigation.

Information Technology Liability Litigation

Data breaches and cyber security hacks have been on the rise in the US, with reported cybercrimes up 300% since the start of the COVID-19 pandemic in 2020. Experts estimate ransomware damage costs will rise to $20 billion in 2021. The influx of businesses falling victim to data security breaches and IT attacks is resulting in increased litigation.

The University of Florida & The Role of University Expert Witnesses

University professors are a staple within the expert witness world, consulting and testifying for a diverse array of cases that match their expertise. Recently, University of Florida barred three of its professors from being experts against their employer, the state of Florida. This decision was met with swift criticism.

Supply Chain Management in Times of Disruption: Still a Broken System Almost Two Years Later

Disruption to the global supply chain opens the door to litigation for everyone from manufacturers to distributors to retailers. This situation raises questions about responsibility: Who is responsible if there are faulty products as a result of supply chain disruptions? What happens if the rapid restarting of manufacturing causes problems with product quality and liability? How will disruptions impact contracts, and how can they be renegotiated?

Preparation is Everything

Thorough preparation for hostile supervised source code review, deposition and testimony is vital. The best way for an expert witness to prepare is to over-prepare. Competent experts prepare until they get it right.

Trust, Winning and Losing as an Expert Witness

This article discusses what ‘winning’ and ‘losing’ looks like for a non-partisan expert, how that differs from how attorneys win and lose, why non-partisan experts can succeed against partisan experts, common business practices that affect an expert’s success, and preparing for testimony.

Expert Witness Mantra

It is essential for experts to be believable and easily understood. What I know, how I know it, and what it means to me is my mantra for providing value as an expert.

Empirical Truth and Probability

There are relatively few absolute truths. The findings of science and technology are empirical — based on evidence and/or observation and verifiable through evidence and observation — and empirical truths are typically nuanced. It is possible to compute the probability that patterns in software and data are random, and this result can be used to form an opinion.

COVID-19 & Therapeutics Litigation

While governments and corporations around the globe push forward with vaccine development and potential cures, therapeutics litigation is now receiving attention. Rapid developments in this area are leading to securities and derivatives violations.

Is Cryptocurrency Litigation on the Rise?

As regulation of digital currencies is still developing, and uses are still being explored, cryptocurrency litigation has been on the rise. We take a look at three current cases and what this can mean for future litigation.

Preparing Expert Witnesses for Virtual Litigation

While the role of an expert witness remains unchanged, the shift toward virtual operations requires a nuanced approach to preparation, as many experts, attorneys, and judges are still new to this change in litigation procedures and techniques.

The Semiconductor Shortage & Potential Litigation

The semiconductor chip shortage is starting to be felt by consumers, from automobile parts to smart phones. This is likely to lead to a plethora of disputes and litigations in the coming years.

Oil & Gas Valuation Issues Lead to Litigation

The U.S. domestic oil and gas industry is still reeling from the drop in demand and ongoing price uncertainty due to the pandemic. These unique circumstances have illuminated critical issues regarding the valuation of oil and gas reserves, which can be seen in the bankruptcies within the industry over the last couple of years. Despite how impactful the valuation process is, experts in the industry explain that it is subjective, leading to regular disagreements and litigation.

The Forensic Meteorologist as a Litigation Expert Witness

What happens when natural disasters such as tornados, hurricanes and other hazardous weather conditions cause significant damage to homes, businesses and entire communities? Who do you look to for these types of assessments? A forensic meteorologist is retained when disputed facts to hazardous weather conditions, such as hail occurrence, may or may not have caused a covered insurance loss.

NFTs & Intellectual Property

NFTs hold the power to improve processes associated with securing, selling, and licensing patents. However, NFTs could also result in litigation should owners of an NFT infringe on trademarks or copyrights.

Will Metamaterials Become a Focus of Patent Litigation?

With an eye towards the future, let us explore some of the areas in which we are seeing commercial product development activity using metamaterials. These product areas are currently seeing an uptick in the filing and buying of patents, which tends to serve as a good precursor to litigation.

Are Litigation Fees Tax-Deductible?

Can litigation fees be deducted as a business expense? Read more about a recent case study on this.

Emerging Litigation Around 5G Technology

“As more devices and tools become connected, smart cars, crop communication, machinery, etc. will be further developed by innovators to maximize incoming data.” Read on as we assess how 5G will impact businesses around the world and affect the subsequent influx of litigation surrounding this new technology.

How Can Defense Attorneys Prepare for Pre-Trial Publicity?

While some litigation receives little to no attention, allowing the proceedings to play out quietly, other cases catch the eye of the news or the public. When this happens, it is up to the defense lawyer to ensure a fair trial. Because of this, lawyers need the right toolbox to address pretrial publicity before it gets out of hand.

Differentiating Between Testifying & Consulting Experts

International law presents a unique challenge to lawyers, where every country and jurisdiction is vastly different. Because of this, the use of expert witnesses is vital for understanding and effectively navigating a tricky case. So, how can you find and use the right experts for your practice?

Are Cannabis Contracts Legally Enforceable?

The enforceability of a cannabis-related contract is determined by a variety of circumstances: What is the language of the state statute related to legalization? When was the contract formed, and was the conduct illegal at that time? No matter the circumstance, this challenge is one that cannabis businesses and their legal teams should prepare for.

An Emerging Solution for Litigation Finance

Commercial litigation can be a war of attrition with heavy legal expenses building over time. Some strong cases are never pursued because the company or firm lacks the resources to see it through. While litigation insurance can be helpful for recuperating losses, many cases still need funding to go to trial.

The Secret to Vetting an Expert Witness

With years of experience in the expert witness field under his belt, Ashish Arun specializes in the intersection of law and technology. As the Principal Owner of Expert Witness Profiler, Ashish provides detailed expert witness reports to attorneys so they can be more prepared in court. So, what kind of information do these reports provide, and why should you order one for your next case?

How to Prepare an Expert Witness for Trial

Working with an expert witness is a nuanced process. From search and retention to consultation and trial, there is no one way to ensure a smooth collaboration and successful outcome. However, some attorneys have really honed and refined this process. Recently, we spoke with Brian Weinthal, who is one of the world’s leading experts on…

The Importance of Pro Bono Work in 2021

Pro bono work is more important than ever before, and Round Table Group has had the honor of working with so many attorneys dedicated to representing their pro bono clients. On our podcast, Discussions at the Round Table, we recently sat down with Greg McConnell, the Senior Pro Bono Counsel at Winston & Strawn. Greg…

A Glimpse Into False Advertising Litigation

On occasion, we as business owners see advertisements from competitors that seem false. Remember back in the 1980’s when now famous commercials came across your TV for garbage bags that would leak, batteries that would die early, or someone would claim to have the lowest prices in the universe? False advertising has been an issue since…

Expert Privilege & Confidentiality Best Practices

H. Bernard Tisdale has been practicing employment law for over 25 years. During this time, he has covered a wide variety of cases—including those focused on employee safety and health—that have required the insight of an expert witness. In these cases, confidentiality and privilege are essential for protecting the expert’s work and, ultimately, winning the case. But, with varying rules around attorney-client privilege and work-product protection, how do you maintain confidentiality while still getting the most out of your relationship?

How Copyrights and Patentability are Impacted by A.I.

Artificial intelligence is one of the most bizarre, confusing, and astonishing staples of the 21st century. In fact, the entire concept of AI feels like it’s been pulled straight out of a sci-fi novel! However, AI is even more complicated and far-reaching than most people realize. In reality, it is impacting not just the tech industry, but also the legal field—among others. So, what do litigators, attorneys, or other legal professionals need to know about the increase of AI in 2021 and beyond?

The Nexus of Law, Entrepreneurship, and Philosophy

Are you an attorney, litigator, or legal professional looking for a meaningful cause to dedicate your skillset and services to? Do you want to give back to your community, but don’t know where—or how—to start?

Game Theory & Settlement Negotiations

Over 90% of cases settle, though it could take months or even years before settlement discussions become serious for all parties involved. There are methods to help legal teams expedite these discussions, and one of our renowned experts has pioneered a process using game theory that achieves just that.

Station-Keeping for Stratospheric Airships

A balloon or airship, floating in the stratosphere and providing communications or surveillance services to users on the ground, would be a boon to many users.

Helping Attorneys Achieve Success After an Expert is Placed

Round Table Group is the expert at finding and placing expert witnesses using its extensive database and network. But, what happens after an expert witness is placed? Does the team at Round Table Group remain involved in the outcome, or does it simply leave the rest of the process up to the client?

Finding the Perfect COVID-19 Expert with Round Table Group

Finding the perfect expert witness for your case is difficult enough—so how in the world do you find an expert on a never-before-seen virus during a global pandemic?

Placing Expert Witnesses & Case Evaluation Process

Finding the right expert witness for a case is like finding a needle in a haystack—and, as a busy legal professional, you just don’t have the time to sift through all of that hay. That’s where Round Table Group comes in.

The Origins of the Experts on Experts®

Why Round Table Group was founded, how we built our expansive network of experts, and the power of good conversation during the intake process.

Saving Truth and Good Will on the Internet

Dr. Heppe discusses how the problem of fake news and misinformation on Internet could be addressed through a solution of technologies, operating systems and creating certificates of status.

Expert Witnesses in Commercial Real Estate Settlement Discussions

Richard Williamson, a leading commercial and complex civil litigator, talked to us about the importance of settlement discussions in commercial real estate industry.

At the Round Table with Richard D. Williamson

We conversed with attorney Richard Williamson about commercial real estate litigation and when to rely on professional or academic experts for trial.

Stories from Industry: US Patent 6,961,018 and the Moving GPS-RTK Base Station

Dr. Heppe discusses how ScanEagle, a small, unmanned aircraft, was developed to provide precise GPS navigation and positioning.

5 Time Management Tips When Working with an Expert Witness

When attorneys have to suddenly shift their focus on a case, it’s important to keep their experts updated too. Read our 5 tips so you stay ahead of schedule and keep the case moving with your expert!

Authentication Features Needed for GPS

Dr. Heppe discusses his 40 year career span in GPS and how this technology developed, its vulnerabilities and necessary evolution.

How Publicly Traded Companies Can Avoid COVID-Related Securities Litigation

A rise in securities and other shareholder-related litigation is currently trending during COVID-19 pandemic. Read how retaining financial experts may help in upcoming litigations.

At the Round Table with Corey Wehmeyer (Interview)

We sat down with attorney, Corey Wehmeyer, to discuss how COVID-19 has changed legal hearings and how mastering video depositions and testimonies is a must.

At the Round Table with Thomas Maas (Interview)

We sat down with attorney Thomas Maas to talk about the common attributes among world-class expert witnesses, what he looks for when examining the experience of an expert, and where he finds his best experts.

How Much Should Previous Testifying Experience be Weighted When Choosing an Expert Witness?

When selecting your expert, should you choose an expert with years of testifying experience or one that is well-versed in topic but less courtroom experience?

Advice from Medical Expert Witnesses on the Transmission of COVID-19

How do businesses reduce transmission of COVID-19 so they can successfully open and operate? How can legal teams advise their clients on navigating this pandemic and avoid litigation?

How Governmental Intervention Can Control the Spread of COVID-19

How can local, state and federal governments work together on specific policies to control the spread of COVID-19? How can attorneys quickly find medical experts for insight and guidance so that they can better serve their clients?

Preventable Workplace Safety Mistakes During & After COVID-19

The rapid spread of a virus on the scale of COVID-19 has highlighted the role employers play in keeping illnesses from spreading in the workplace, and the risks (including litigation) that may arise. In order to help attorneys educate their clients on preventable workplace safety mistakes during and after COVID-19, Round Table Group has assembled…