In this episode… 

Keeping legal conclusions out of expert opinions is an important skill, according to Professor Michael Risch. This is significantly more difficult for attorneys who become expert witnesses, but it is crucial, regardless of background. Opposing counsel will jump at the opportunity to impeach legal conclusions couched as expert opinions, he advises.  

Tune in for the full episode, including our discussions on levity in the courtroom, consistency, and relatability in court.

 

Episode Transcript: 

Note: Transcript has been lightly edited for clarity. 

Host: Noah Bolmer, Round Table Group 

Guest: Professor Michael Risch, Vice Dean at Charles Widger School of Law, Villanova 

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome our guest, Professor Michael Risch. Professor Risch is the Vice Dean at Villanova’s Charles Widger School of Law. He’s well-published in IP and Internet Law, and he has a full-service IP consultancy. Professor Risch has a J.D., from the University of Chicago and an A.B. from Stanford. Professor Risch, thank you for joining me here today at the Round Table. 

Michael Risch: Thank you for having me. 

Noah Bolmer: You have an extensive legal background from practice to academia. How did you first get involved in expert witnessing? 

Michael Risch: It was a random call. Somebody called and said, “We’re looking for an expert in this area.” And it turned out that I had the expertise. I had up until my first engagement turned down several opportunities, but when one fit, I accepted. 

Noah Bolmer: When you say you turned down several opportunities, what is that calculus? What are the things that you’re looking for as an expert witness and as an attorney? What are the things that you’re looking for in an expert witness to decide not only that they have the subject matter knowledge but also that you’re going to be a good fit for an engagement? 

Michael Risch: That’s the question. Well, there are three. Number one: Do I have the expertise that they’re looking for? Am I going to hold up to cross-examination? Number 2: Based on what I’ve heard about the case, is my opinion in line with the side of the case giving me a call? Number three: Is this an opinion I can give that can be admitted, or is it a legal conclusion? I’m happy to give a legal conclusion, but it may not fit what’s needed for the case with respect to an expert.

Noah Bolmer: How much of the case is divulged to make that call during those initial calls? 

Michael Risch: Typically, in IP most folks will send a complaint and maybe an answer. That’s usually enough, in IP, because you can see what the claim is with the case. You can see what the IP type is, what the claims are going to be, and you get a sense quickly for what the arguments are going to be and where the request for the expertise is going to be. Sometimes, you don’t even get that far. On the phone somebody says, “We’re looking for somebody who’s an expert in trademarks who can talk about when a trademark becomes generic” or something like that. 

Noah Bolmer: How about some of those intangibles? You’ve decided, “I have the subject matter knowledge.” What about the intangibles? How do you decide if this is a person that you want to proceed with? 

Michael Risch: Can they pay their bills? That hasn’t been a problem. Beyond that, not a lot. It is not like this is a criminal case where this person is guilty. Am I worried about it? For me, the intangible thing is [whether] I am representing somebody where the outcome will come out, and I would be sad they won. The reality for most IP cases is that it is not an issue where an expert witness is needed. There are some IP cases where I do care about the out. Those are not the cases calling me to be an expert witness about something. For the most part, I just want to get a sense of whether my expertise will be helpful. Do I care enough about this issue that I wouldn’t be sad if this client won? As a starting point, that’s typically enough for me. 

Noah Bolmer: Do you have to turn down many cases for one reason or another? 

Michael Risch: I’ll say I probably turn down over half the calls I receive. If not three-fourths or more. I don’t get that many calls. I’m not 100% affiliated with any group. It’s catch as catch can. There’s not a huge market for attorney-type expertise. The fit must be right, and it’s often not. 

Noah Bolmer: As an attorney, you have a perspective that most expert witnesses do not. How do you approach expert witness work as an attorney, simultaneously working for an attorney? How’s that dynamic been? 

Michael Risch: It’s hard because, as an attorney, I want to argue and say, “This is what we should be doing” but that’s not my job. I try to step back and say, “This is not my case. I’ve been asked to give an opinion, and I will give it and say where I can’t give an opinion.” From there, I do the best I can. That said, I typically ask a lot of questions, and I ask for a decent number of documents in a particular area. As an attorney, I know what I would be asking for to prove particular facts. I will try to get all the details I can about the arguments are going to be, so I understand where we’re going.  

Another hard thing to do is to not pay attention to the other parts of the case where I’m not an expert because that can be costly for the client, for me to be reviewing many documents that have nothing to do with what I’m testifying about. You have got to do a little so you can get a sense of where the arguments are and what’s going to happen. You can’t do too much because it winds up being irrelevant to your work, and you don’t want to charge the client for work you’re not doing. 

Noah Bolmer: Do you find there is a good deal of push and pull in terms of how much you want at the outset? How big is that initial information dump? 

Michael Risch: It depends. Some lawyers want to give everything, and some say, “Here are a few documents to get you started.” I will work with both if the attorney understands I’m limited by the documents I see. I don’t love being surprised at a trial or deposition. I want to ensure I’m getting everything that might possibly come up that I can be asked about that would be relevant. If counsel doesn’t want to give it to me, and I get surprised, it’s their case, not mine. That’s a choice they have to make about what they will give to me. And that leads to one other question, which is when I’m taking a case, the other reason I wind up turning down cases- I forgot to mention this earlier- since I have written a lot, and I will often think about what I have written about this issue. Sometimes, I will tell the client. “I’m happy to do this but you should know I’ve written articles XY and Z. You should look at those articles and see what I’ve said.” And sometimes they read those articles and say, “You’re not the right guy for us.” Or they’ll read those articles and say, “Okay, will your opinion be consistent with those? What’s your answer for those?” Having opinions consistent with my past publications is an important issue. 

Noah Bolmer: That’s a big topic, especially for someone as well published as yourself. In fact, you’ve been cited by the Supreme Court. Is that accurate? 

Michael Risch: It is, it is. It’s been a little while, but I still ride on that. 

Noah Bolmer: Let me ask you, how do you keep track of every little thing that you’ve ever said and published since the start of a long and illustrious career? 

Michael Risch: There are two things. Number one, I’m relatively consistent in my views. I have been questioned about things I’ve written and none of them have been inconsistent with what I was testifying. They might have gone the other way but there’s always a footnote that says, “But if the facts went this way, then you would see a different outcome.” I’m able to say, “Well, the facts are a different way. This is what I was saying.” You’re missing the nuance there. I remember what I’ve said in my articles, but I sometimes Google my blog posts and see blog posts that I have no recollection of writing. I read it and go “Wow, that was pretty good, but I don’t remember writing it.” Once I read it again, I was like, “Maybe I should publish that. Wait, I already did.” Even then, what I wrote at the time, I think is good because it’s very consistent with my viewpoint. Maybe that’s bad. Maybe I should change my views and adapt over time. The reality is other than a few areas where the law is changing, and in those cases, I recognize and say, “What I said then is different because the law has changed.” I’m relatively consistent over time.   

Noah Bolmer: Have you done a lot of work for the plaintiff and defendant side as an expert witness? 

Michael Risch: Probably about half and half, maybe a little bit more for the defendant, which is interesting because I represented plaintiffs more in practice. It all depends. As an expert, I have represented both.   

Noah Bolmer: Is there a significant difference in the way you approach those two types of engagements? 

Michael Risch: No, not at all. 

Noah Bolmer: Is the process different when you’re writing a rebuttal versus an initial report? 

Michael Risch: Yes, because with the rebuttal I have somebody else’s- well it depends, if it’s a rebuttal but there is no expert, if I’m the first expert but it comes later, then it’s the same process. If it’s a rebuttal, I have my own opinions, but I want to respond to the opinion of the opposing party’s primary expert. I want to recognize where [in the report] they are wrong or incomplete. Or where they rely on what I believe is a faulty assumption, note where I agree with them, and get to the point where we disagree. I don’t believe in wasting time and having everything obfuscated. If we agree on points, we should make that point and get to the point we disagree. 

Noah Bolmer: Many expert witnesses find themselves working on teams of various sizes. Have you been in situations where you are working on a team with other expert witnesses, and if so, what is that interface like? How much work do you do with them and how much are you on your own? 

Michael Risch: I have not been on many teams. I have been on cases where I was an expert, and there was a damages expert, but the damages expert did not rely on what I was saying. If there was liability let’s say. But then they went off on a tangent of assuming there was a liability and determined what the damages were. I have not done many. I know sometimes technical experts will do this with reasonably royalty analysis and the technical expert will say, “Yes, the infringement is on this one little part” and then the damages expert will say, “Based on what the expert is saying about this one little part, how it interplays with the other parts, what is going on the industry, this is what I say the royalty is.” I don’t give that type of opinion. There’s not much of that teamwork. 

Noah Bolmer: When you’re writing your report, do you have a strategy that you use? Do you typically index things, or do you have a method that you use to get organized when you’re writing your expert report? 

Michael Risch: I’m organized by the end. I use headings but I typically write as I think. As I review a document, I will go to the section I’m writing about, do my writing then, I move on to the next part. At the end, I go back and massage it into shape. 

Noah Bolmer: Many people don’t use a well-defined system. It’s interesting to hear the different methods experts [use] to write reports. I want to move on to something that’s interested me lately, which is court demeanor. As an attorney, how do you recommend that experts, for lack of a better word, act in front of a deposition or a jury? How do they keep themselves together? For instance, should they interject levity? How do they keep themselves relatable and how do you train on something like that? Is that an innate characteristic or can it be taught? 

Michael Risch: Those are all good questions. I wish I had good answers. For me, I have no idea what the attorneys who hire me want, I prefer that experts come across as relatable, and it’s a fine line. You want them to have expertise but also be able to communicate with the fact finder and that’s a hard skill. There are damages experts I’ve seen who say, “Here’s a spreadsheet and this is my damages number. There’s the bottom line, and I’m done.” I just hate that style. But I’ve seen many plaintiff’s lawyers use that and win money that way. That may be the way to win because the juries don’t know how it all adds up. I don’t need to understand it. It all depends, but at least on the technical side, I feel there’s got to be some explanation. For example, when I was doing patent cases, you had people testifying about who is the person having ordinary skill in the art. I used to like to find experts who were ordinary people skilled in the art rather than somebody who was a Ph.D. saying, “Well, I am the super expert but let me tell you what a person with an ordinary skill in the art was.” I preferred having people who were like, “I’m an ordinary guy let me tell you what I know, as an ordinary skill.” That’s different from true experts where I need to know the entire field. I think levity is okay when I testify, and I’ve tried to inject it. 

Noah Bolmer: Can you tell me more about that or give me an example of that? It’s a topic that’s fascinating to me. 

Michael Risch: Small jokes here and there. Typically, I try and do more self-effacing but not so self-effacing that it diminishes my expertise. 

Noah Bolmer: Okay. 

Michael Risch: I think that works best. Levity at the expense of the questioner doesn’t work as well. 

Noah Bolmer: That’s great advice. That’s exactly what I’m looking for. 

Michael Risch: That’s my view. It’s more in the moment, I mean that’s the key. Having it canned doesn’t work. Being able to do it in the moment allows you to have the connection with the fact finder in a way that comes across as being sincere about what you’re doing. That’s the goal. It’s not somebody being paid to tell the story the party wants you to tell, but instead, somebody who has real expertise in an area and is doing their best to provide information and happens to get paid to do it. 

Noah Bolmer: Without any specifics, do you have a pivotal case or two that describes how you go about being an expert witness or an attorney and changes the way you think about expert witnesses or the way you utilize expert witnesses? 

Michael Risch: The first time I was deposed, I realized how awful my expert report was. It was not detailed, and I learned a lesson about being detailed. My reports are still not detailed enough, but I’ve gotten better at it. Also, when you get deposed, especially when you’re an attorney expert, the questions are reminders of all the things you have not done in your life. As many things as I’ve done, I am asked, “How many cases have I not tried? How many clients have I not had? How many awards have I not won?” The first time that happened it was a bit of a blow. Now, I’m ready for it, and I can live with it, but the first time it was rough. 

Next, was our first arbitration hearing where the arbitrators were saying some testimony was more legal conclusion than not. At least some of it. That also was a lesson about how to do the report and testify to make sure that what I’m testifying is not a legal conclusion and making sure that I’m on the same page as counsel about the where the risks are, norms, and legal conclusions. My opinion in that case was that I was testifying about industry norms, and they were taking them to be legal conclusion. I think that was wrong, but that is another story. It was a lesson in how you have to pitch it. Since then, I’ve consulted with colleagues who’ve done more testimony than I have about ways to clean that up. 

Noah Bolmer: Do you find that you’re treated differently in court as an attorney than a typical expert witness by the deposer, the judge, the jury, and the opposing counsel? 

Michael Risch: Certainly, the cross examined because they want to portray me as a hired lawyer getting up to give a closing argument. The goal is to have the arbitrators not view you that way, so, that’s a risk when you’re a lawyer who’s been hired. I’ve been hired as an expert to testify about norms in the industry so, I can say, “I’ve read about thousands of negotiated agreements and I’m going to testify about the norms of what these agreements look like generally.” Opposing counsel [will suggest] you’re just testifying about best practices for writing an agreement. That’s the push-pull you have, which is the difference between our industry norms and trade usage versus what’s legal conclusion. 

Noah Bolmer: Lawyers work for their clients, but expert witnesses their duty is to the truth. What does neutrality mean to you and what is the role of neutrality in expert witnessing? 

Michael Risch: It allows me to sleep better at night, which is nice. One of the reasons I got out of full-time litigation was I did not like the arguing back and forth and the high stakes of the litigation. It wasn’t something that made me feel good, that I wanted to do with my career. Expert witnessing is some of that. I still get exposure to disputes and try to help resolve them, but in a way that is much more focused on the facts of the case which is what I like to do. As a professor, I focus on the truth and learning from reality, and I try to bring that perspective as an expert. That’s what that means for me. I hate [being] an expert for a client who doesn’t win because I get to like them over time. You give your testimony because you believe you’re on the right side of things, but It’s not the same as if your livelihood depends on winning this case for the client. 

Noah Bolmer: As somebody who is involved in academia, how important is it that you continue to grow your knowledge? How do you remain an expert in your field? 

Michael Risch: It involves going to conferences, and I go to conferences where my colleagues talk about their experiences, and we all share stories about the people we’ve talked to. It involves going to conferences where people in the industry, that is lawyers, talk about what they do. I learned it involves reading cases. I’ve done multiple empirical studies of case law where it’s just a matter of reading thousands and thousands of cases. When I testify, for example, about the norms in a malpractice case, if I testify about the norms of what patent lawyers do, I’m frequently- the cross-examination is often “You didn’t try that many cases.” My response is, “Yes, but I’ve read thousands of cases, thousands of orders, and I’ve read thousands of motions, so I know what lawyers are doing.” I’ve talked to lawyers, and I have a sense of what they are doing in these cases, more than the many cases I might have tried because I’m following what everybody is doing and not what one person is doing. The difference between being a professor and being a lawyer with respect to experience is the lawyer sees what they see, and the professor if they’re doing the job right is learning what everybody sees, not quite with the same depth for those few cases, but with the breadth of all of them. 

Noah Bolmer: Before we wrap up. Do you have advice for newer expert witnesses or attorneys working with them? 

Michael Risch: Number one, review documents to get ready for that deposition, and stick to your opinions and be confident. Try and be cognizant of the things you’ve said before, I guess that’s number two. 

Noah Bolmer: Mr. Risch, thank you so much for joining me here today at the Round Table.   

Michael Risch: Thank you. It’s been fun. 

Noah Bolmer: Thank you to our audience for joining me for another Discussion at the Round Table. Cheers. 

Professor Michael Risch, Vice Dean at Villanova’s Charles Widger School of Law

Professor Michael Risch is the Vice Dean at Villanova’s Charles Widger School of Law, where he is a well-published author in Intellectual Property (IP) and Internet Law in numerous law journals and has a full-service IP consultancy. Professor Risch holds a J.D. from the University of Chicago, and an A.B. from Stanford.