In this episode…

Our guest, Stanley Gibson, sits down to talk to us about his experience as an attorney working with expert witnesses. He touches on how mock examinations are key to witness preparation, stating, “. . . I will have another attorney at my firm play the other side and do cross-examination for my expert, so they’re not used to the person.” He continues “. . . I think that process is very important to get the expert prepared properly. You want to make sure they are going to defend their opinion, and that they understand the best ways to do that.”

Other topics include ethics, confidentiality, and the vetting process. Stan emphasizes, “[I look for] someone who communicates well and is going to do a good job in testifying in front of the jury. [They should] be a good teacher and be clear and precise in what they are saying. I also think it is important that you like the expert you are working with.”

Episode Transcript:

Note:  Transcript has been lightly edited for clarity.

Host:  Noah Bolmer, Round Table Group

Guest: Stanley Gibson, Attorney at Jeffer Mangels Butler & Mitchell LLP

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and I am excited to welcome Stanley Gibson to the show. Mr. Gibson is a trial attorney and a partner at Jeffer Mangels Butler & Mitchell, where he focuses on Intellectual Property (IP) and entertainment. He has over 3 decades of litigation experience and holds a JD. From Duke, Mr. Gibson, thank you for joining me today.

Stanley Gibson: My pleasure. Thank you for having me.

Noah Bolmer: Absolutely. Let’s jump into it. You have an extensive background in litigation with a particular interest in technology. Has this always been a passion for you?

Stanley Gibson: When I was a kid, I started watching my dad try cases. Growing up, I dreamed of being a trial lawyer. I went to law school, became a trial lawyer, and helped other people, mainly entrepreneurs and inventors, fulfill their dreams and protect their intellectual property. That has always been one of my goals and desires, as practicing in the IP field is to help inventors and entrepreneurs protect the dreams, they have worked so hard to achieve.

Noah Bolmer: It is a noble field. Let’s go back to your early days. When was the first time you used an expert witness? Did you start using expert witnesses right off the bat or is that something that evolved in your practice?

Stanley Gibson: I have used expert witnesses in my practice for 30 years. I remember the first time I saw an expert give a presentation. A damage expert I have used frequently came in and gave a presentation. I developed a relationship with him over the years. He did a fantastic job presenting, making things understandable, clear, and concise. He was a nice guy, and I could tell he would be easy to work with. That was my first experience working closely with an expert, but that happened early in my career.

Noah Bolmer: Is that common where it is a word-of-mouth thing? How do you find expert witnesses?

Stanley Gibson: It can be word-of-mouth. I will look around the law firm and talk to my partners who have used experts but will engage in search services, particularly on the technical side. Intellectual Property cases, trade secrets, and patent cases where we need more specialized knowledge and not. Not everyone is going to have dealt with that kind of case before. That is common in over half of my cases. We reach out and use expert search services to find experts.

Noah Bolmer: Over half. What is interesting now is that over half of the cases use experts or over half of the cases overall.

Stanley Gibson: I would say over half of the cases overall, I do not have too many cases where we do not have experts. In the Intellectual Property field, unless the case gets resolved early on, I have experts engaged in every case. Usually, at least two. One on the technical side and one on the damages side. It may be more than two. I did a trial in June where there were 13 experts total in the case. A record for me with the most. Usually, there will be at least two on each side.

Noah Bolmer: With so many potential expert witnesses, how do you organize all of that? Do you divide the case into little bits and assign them parts they need to do? How do you manage that?

Stanley Gibson: You want to be efficient because experts get expensive for the clients. You want to make sure they are each doing their role. We will divide up those specific roles, which is easy when you have a damage expert and a technical expert. That is simple when dealing with an IP case. The damages expert will summarize the case, do damage analysis, and do calculations that keep them in their role. We will engage forensic people who do accounting work with the damage expert. You want to distinguish who is doing what. It is important to have group calls. I do not have problems having the experts on a single call talking so they do not overlap except where they need to. That is an important part.

Noah Bolmer: So, you have experts interacting with each other. How does that impact things like discovery? How do you deal with confidentiality and what they can and cannot say to you?

Stanley Gibson: It depends on where you are. If you practice in California and are in State Court, there is no privilege against having to produce information that you provide to experts or draft reports. All of that is fair game for discovery. It is a little more limited in federal court. You are not going to have drafts produced and you are going to agree that e-mails and things will not be produced either, whereas in California State Court, it is more far-ranging. You can get a copy of the expert’s file and that should be everything that they have created, whether it is drafts, notes, e-mails, and whatnot. It is important to make sure that you are providing the experts with information that has been provided to the other side in discovery. You do not want to provide documents that have not been produced in discovery. I think it is important to still let the experts have a conversation. It makes a free flow of information. It is a free discussion of ideas. I do not usually have the experts putting many things into writing early on. They will wait to do their report until they are further on. When doing their initial investigation, I think they should talk to the other experts, especially if they rely on those experts. There is no reason not to have those conversations early in the case.

Noah Bolmer: Let’s back up for a moment and talk about your vetting process. When you are deciding who to bring on as an expert, obviously you need to know that they know their subject matter. What else is important? Do you concern yourself with how they might appear in court, during a cross-examination, or a deposition? Or is it mainly how well-established they are in the field?

Stanley Gibson: Ideally, you get all those things. You have a different approach for different parts of the case, right? You need to get your expert through the Daubert Process or through a motion to exclude in state court. So, you want to make sure they are qualified and the more credentials they have for that process is important. When you get to the trial itself, the credentials are probably not as important if they are qualified to testify. I do not think the jurors distinguish that much based on where someone went to school and if they have relevant experience. Both sides probably have that. That is not what the case is going to turn on. You must find someone who communicates well and does a good job testifying in front of the jury. Someone who is a good teacher is clear and precise in what they are saying, and easy to understand. I also think it is important that you like the experts you are working with, and you find them enjoyable to work with, and someone who makes time for the case. We are not the client, but as the attorney working with the expert, a good working relationship and enjoying working together is important. You are going to spend many hours together, whether in person or virtually. So, I think you must look at the qualifications, the ability to testify well, and how easy they are to work with. You want to make sure that you can rely on that relationship. The best experts are going to go beyond just. testifying and giving an opinion. They are going to help you and with the other experts are going to come up with ways to attack the other side’s experts. That is important.

Noah Bolmer: Speaking of attacking the other experts, some expert witnesses have been working for a long time in their area. They have a massive amount of published work and sometimes opinions change over time. This is something I have heard repeatedly from interviewing long-time expert witnesses. They have been impeached for things they have said early in their careers that have been published. Do you actively research an expert to make sure that they see the facts or whatever the issue gels with what you are trying to get across to the judge or the jury? Is that something that you do not sweat too much?

Stanley Gibson: We will look at readily available stuff. We are not going to spend hours and hours digging that up before we hire an expert. That is not likely. You want to make sure you are working with somebody reliable and going to tell you what is out there. Most of the experts that I work with know if they are and they are not going to give a contrary opinion. They are going to tell you to look, if you want me to go this road you need to know that I have had these three other cases and two of them are published decisions or my opinions are laid out, and this may be contradictory to what I have said before, so, let’s talk about that ahead of time before you put the expert up and do the opinion. In terms of the vetting process early on, I am going to want the expert to tell me what they have done. We will search to make sure that the expert has not been excluded and those types of things, but when I spend tens of hours trying to do that, we are going to rely on the expert to tell us.

Noah Bolmer: Once you have vetted the expert, how do you prepare them? Do you do mock depositions? Do you do mock cross-examinations? What are the best tools in your toolbox for preparing an expert witness, especially a newer expert witness who does not have much experience in this?

Stanley Gibson: I think a mock examination is important, but if they have testified hundreds of times, they do not need as much of a mock examination, so you keep that to a minimum. New experts, especially on the technical side, will not have testifying experience. I think it Is necessary to walk them through both direct and cross-examination. I will have an attorney at my firm play the other side and do the cross-examination for my expert. They are not used to the person, and I find that to be a more helpful way to do it, as opposed to me doing both sides. They take it more seriously. It is unfamiliar if someone else is doing it. I think that process is critical to getting the expert prepared. You want to make sure they can defend their opinion and they understand the best ways to do that. They may have some safe places. They may go with some phrases. In a royalty case, the client had hired a leading music royalty expert not to testify but to do a royalty analysis to analyze if they were being paid fairly. He has not testified much. Most cases settle, so he was not a great witness to start with, but together with a colleague, we worked with him for three or four days and turned him into a fantastic expert. One of the ways we did that was to get him comfortable to say, “I relied on my procedures to do this analysis and the procedures I have been using for decades to do this kind of work.” He wrapped himself in his credentials and his credibility and he testified in front of the jury. I thought he was fantastic.

Noah Bolmer: Speaking of settling, I hear from many attorneys that the vast majority of cases these days are being settled as opposed to how it was in the 80s and 90s. Does this affect the role of expert witnesses? Do you still have to prepare each expert witness as though they are going to be in front of a jury or be cross-examined?

Stanley Gibson: You always should. I have seen the statistics and cases do settle more frequently today. I often get brought into cases that are close to trial and my cases do not settle as often. Certainly, by the time I am involved, I expect the case to go to trial and I prepare the experts as if it is going to trial. I do not want an expert giving a deposition and not thinking it is going to trial, even if they may have an experience where they testified 50 times and they have only gone to trial twice, I will tell them that most of my cases go to trial and I expect this is going to go to trial so they need to get prepared and be in the right mindset for that. I think it is dangerous not to do that and I have found throughout my career, that the more prepared you are for trial, the other side sees the more likely you are going to get a good settlement as opposed to trying to sell because you are worried about your case. Being prepared for trial and having your experts prepared for trial, I think, sends the right message to the other side and will promote a better settlement.

Noah Bolmer: One of the primary things that an expert will do regardless, but especially if there is not a trial, is a report. Do you provide an outline or do your experts develop a report whole cloth?

Stanley Gibson: It depends. I will usually ask that we have calls and discussions about what we think the report should cover and the client may be involved with that. Then depending on how long of a report we think it is going to be, I think the expert can outline it. We can outline it on a call together, but I like them to write their reports. I think they should. I think they are experts, and it should be their words. I do not believe in writing reports for experts. With the way the federal rules are now you can probably do that since drafts are not discoverable. I do not think in practice it works as well, and the expert needs to have done their report, and they understand it better. It is their work. They defended better at the deposition and a trial. I expect the experts to write their own reports. They will have input, and so will the client. Then things that we want to add can be added, but we expect the expert to do that work.

Noah Bolmer: That is a good segue into ethics. Experts are required to give their opinions on their areas of expertise. And I have heard that experts occasionally feel nudged by their attorneys to frame their opinions in a specific manner. Not necessarily something that they do not feel. Where is the line between expressing their opinion, be it in a report or a deposition or even on cross-examination that is truthful in their experience, but still pushes the case forward? How do you manage that kind of push and pull?

Stanley Gibson: I think the expert has to be expressing their opinion, not the attorney’s opinion. I do not want them regurgitating something the attorneys have told them. I think when that happens on the other side, I can figure it out, and it is going to hurt the expert’s credibility. I think one of the things that the jury system does well in evaluating a witness’s credibility. If it is someone else’s words or opinion, and that expert is uncomfortable with it, they are going to see that and not trust the expert. I do not think that is a good idea. You have the expert give his or her opinion. It cannot be something that the attorneys came up with. You may talk it through and find better ways to express it, but I do not think you should be telling the expert to give an opinion they are not comfortable with. It must be their opinion, or it is going to have implications. It is not the right thing to be doing. It is not going to work. Ultimately, there is going to be a problem.

Noah Bolmer: I have interviewed some experts who have said that a more proactive approach with their attorneys has been helpful to their careers and cases. Do you find that when experts take a more proactive role? They say when they think a case might be better if they frame something a certain way or get more involved in the case. Is that something that you prefer, or would you prefer them to stick to what they are hired to answer the questions as they are asked and fill out the report?

Stanley Gibson: I think it depends on what the experts are doing so if you have got an expert in a limited role, you want them to stay in that limited role and not to expand that. if they have questions about that, I want to hear what their thoughts and questions are. I do not want to get on something that is off or maybe on another expert’s topic. You must have close coordination. Overall, I do like it if experts are involved if it Is out of my IP area, but I do trials in other areas, too. I was brought in to try a fraud and a real estate breach of fiduciary duty case by a colleague. The expert was fantastic. He was our forensic accountant. He went through the books, the records, the e-mails, and pulled out things changing the nature of the case. We are critical to achieving a great result. After the jury returned with some questions favorable to my client the case was settled. That expert did a fantastic job digging in and doing a forensic analysis of not just the accounting documents but e-mails and putting together stories about what happened in the breach of fiduciary duty. I love it when an expert can do that within their role. He found things that we were not expecting.

Noah Bolmer: I found many experts find that they become invested in these cases and even after their part has wound up, they still take an active interest in whether the case is quote-unquote won or lost, or whether the best result in a settlement has been achieved for the attorney who they are working with side. Do you keep the experts abreast of a case as it proceeds or once their part is done, do you move on from there?

Stanley Gibson: I like to keep them informed of what is going on, whether the case. I mean, sometimes the case is subtle. It is confidential, so they cannot know the details of the settlement. They know it is settled, but I like to keep the experts informed within the first hour after getting a verdict. We let the experts know. what the verdict was? They know and they are on the same page because I agree with you, they do get invested in it and that is human nature, and nice to see as well. They may care about the client, and they want to know how it went beyond how they did their work. I like to give them feedback. I do not usually have time right after they are done testifying in court because they get up and leave the witness stand, and off they go into the hallway, and I am still in front of the jury. Once the trial is over, I am happy to talk with the experts, and I have had several of these trials. I did it in June. I had an expert call me to inquire about how we did. He could have done better. I think that it is fantastic to give that feedback. The feedback is good. I like to get it, so I appreciate it when they want to hear that too, Stan, do you?

Noah Bolmer: Have any last parting advice for newer expert witnesses or for attorneys who are dealing with newer witnesses before we wrap up today?

Stanley Gibson: I would say make sure you hire the right experts we talked about. They are easy to work with. They are good teachers. They are available. They have time for your matter, but they also have the competency to do it. If you are a new expert or a relatively new expert. You must check your work. Recently in another trial, a damage expert and his report looked great. For the defense, he whittled down the damage. We are trying to figure out what is happening and how to get the low damages. Finally, the CFO for the client started digging into the numbers. He had said he was going to use numbers in a certain date range and had gone beyond that date range and had thrown all his calculations off and made them much lower. Oh, Lord. Now he did not do it intentionally, but he did not have the right. People checked his work product, so we waited until trial and cross-examination, and he ended up having to retract his whole opinion and testify that all of his numbers should be higher. You do not want to have that situation if you hire that person. But the time to fix that is to make sure you hire the right person. If you are an expert, you do not want to make sure you are not caught up in a situation like that. It is embarrassing to be caught with your pants down in the middle of the jury trial.

Noah Bolmer: Sage advice, Stan, thank you for joining me here today.

Stanley Gibson: I appreciate it. Thank you.

Stanley Gibson, Partner, Chairman, Patent Litigation Group, Jeffer Mangels Butler & Mitchell LLP

Stanley Gibson is a trial attorney at Jeffer Mangels Butler & Mitchell LLP, where he focuses on IP and technology. He has over three decades of litigation experience and engages multiple expert witnesses in most actions. Mr. Gibson holds a JD from Duke.