Expert witness objectivity: hired gun, advocate, or unbiased?
An expert witness is not a member of the client’s legal team. The expert is not an advocate for the client that is the role of the law firm. Experts generally are not lawyers or legal experts; they should not be asked to opine on legal issues. Most important, quality expert witness is never a “hired gun” that will do anything or say anything for a fee. Few disputes that find their way to litigation involve “black and white” issues. They are normally various shades of gray. Neither party is completely right or completely wrong. Accordingly, it is not difficult for the skilled expert witness to find a way to support the opinions and goals of his/her client without compromising his/her integrity and objectivity. Nevertheless, if the expert witness finds that his client’s opinion or position has no defensible basis, that Expert should so inform the client and withdraw from the case.
Building a team of expert witnesses is analogous to building the litigation team. Depending on the situation, one might find that the most efficient method is to assign the task of managing the experts to a single attorney. Sometimes, in particular in large patent infringement matters involving multiple patents, it is most efficient to divide the tasks by relevant technology and assign attorneys and experts to the patents most relevant to their expertise.
Expert witness teams are frequently separated into background consultants and testimonial experts. Depending on the nature of the litigation these individuals may never meet or discuss or otherwise their respective work product or opinions. In cases where huge files of software code require analysis it is often more efficient to have a lead expert witness who is managing his own group of background consultants who perform the arduous task of code review and analysis. A similar approach can be taken to the analysis of large groups of patents, in particular, in pre-litigation patent infringement matters where large numbers of patents are analyzed to find those most likely to be infringed.