According to Michael J. Abernathy in IMS Expert Services' Bullseye Experts Rag, the two most frequent mistakes intellectual property lawyers make while working with an expert witness are 1) the lawyer who relies too heavily on the expert for technical help without reviewing the technology himself, and 2) the lawyer who micromanages the expert until his credibility is damaged.
"Your job as a lawyer is to take information and synthesize it and have it comport with your case themes," Abernathy explains. "Often that which may be important to the expert does not comport with the theme, is not easy to understand and is not persuasive."
Abernathy believes there are two keys to achieving the right balance. The first step is to bring the expert into the case early, while the second is to involve the expert throughout discovery.
Too often, lawyers fall into a predictable pattern while working with experts, he explains. The lawyer is deeply involved with the expert at the outset when the expert is retained, but as discovery progresses, the lawyer lets the expert sit on the sideline. Then, when the time comes for expert depositions, the expert again regains prominence in the lawyer's mind. "The care and feeding of an expert should be constant and should be at a very high level so that the expert is an integral part of the process and knows where the lawyer's thinking is at all times," Abernathy suggests.