This excerpt is from Chapter 6, The Art and Practice of Presenting Testimony as an Expert Technical Witness in
A Guide to Forensic Testimony written by Fred Chris Smith and Rebecca Gurley Bace, and published by Addison-Wesley. You can download the entire chapter here for free.
A Failure Analysis: Examples of Ethics-Challenged Experts
Perhaps the best way to demonstrate how the failure of foundation components affects the stability of structures is to use the time-honored technique of failure analysis. The entire edifice of trial by advocacy relies on the common-sense rules of professional ethics and the cardinal principles of professional conduct. Here our failure analysis will consist of analyzing what happens when the violation of these ethical rules causes the structure of an apparently successful litigation to fail. We'll begin by examining two cases in which the courts found that the experts failed to act ethically. In these cases the failure of the technical experts to testify truthfully cost the parties that employed them judgments of over $100 million. In each case, the expert had determined that a patent or family of patents was valid and enforceable against another party that had been alleged to have wrongfully benefited from the infringement of the original patents. These were, in essence, high-stakes legal duels in which the persuasive testimonies of the respective technical experts were the keys to the kingdom -- and to the large judgments rendered by the respective juries.
While these stories require you to consider the proceedings that gave rise to the questionable testimony of the experts in some detail, in doing so you can also better understand how experts can yield to the temptation to become advocates. Remember that by becoming an advocate, the expert witness violates basic ethical rules. Although limiting your perspective to one side of the controversy might appear to resolve ethical conflicts and might furthermore make it far easier to deliver the most persuasive testimony, these advantages come at a premium. For the price of advocacy is most often surrendering your ability to deliver the most truthful and useful information. In particular, you sacrifice your ability to deliver appropriate information both during discovery, for the benefit of the attorneys for the other side, and also at trial, for the benefit of the fact finders.
You might naively believe that telling the truth is a concept that any qualified expert can comprehend without a special code of instruction. However, in the heat of the legal battle, the expert can begin to believe that winning is all that matters. Furthermore, this flawed premise may spawn the attitude that it is up to the people on the other side to do their own due diligence to determine whether the expert is testifying truthfully. Such beliefs set the stage for the kinds of disasters these two stories describe.
By understanding the context of patent infringement litigation, you can follow the path of the experts in these two patent cases and in the process learn a good deal about how both diligent discovery techniques and blind luck can combine to reveal the false testimony of a technical expert witness. In both stories, the experts were the key witnesses in their respective cases. In the first story, the questionable testimony concerned the circumstances surrounding a crucial test. The expert's opinion that led to the $100 million verdict against the defendant was based on this testing. In the second story, unknown to the court or the attorneys for the defendant, the plaintiff 's expert was conducting a parallel expert witness engagement—and simultaneously rendering a conflicting expert opinion on similar issues that had arisen in another pending patent infringement case. The expert, however, testified in his deposition that this was not the case and repeated this testimony at trial.
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