A seasoned litigator in patent disputes shares advice for engineers about how to testify-and how not to testify--in a deposition.
Many top trial lawyers believe that patent lawsuits are won or lost in depositions, many of them given by engineers. But in my experience witnesses are understandably nervous because the process is unfamiliar and unnatural.
Witnesses often fear that they will be tricked or slip up and say something that results in their company losing a lot of money or even being enjoined from selling the very product they spent so much time developing. Itís true that testifying is hard work, but it also can be interesting and successful if you spend some time demystifying the experience.
If you are chosen as a witness, you probably will be asked to search for relevant documents and your business emails will be searched. Months may go by before a meeting with your companyís lawyers to prepare for the deposition.
In most patent cases, the patentee wants an inventor to be the witness who tells the jury about the problem solved by the invention, the creative thinking and hard work that went into the invention--and perhaps even how the company learned of the defendantís accused products or processes. The company accused of infringement, likewise, needs a likeable, articulate technical witness to testify about the independent work that went into the development of its own product.
Your deposition testimony should not be inconsistent with what you will say on the witness stand at the trial. If you worked on a project a long time ago, however, and you donít remember a lot, it is better to admit that you do not remember something than to guess about it or try to reconstruct your previous knowledge from your old emails and notebooks.
Itís human nature to try to answer a question even if you donít really know the answer. Practice to avoid that tendency.--Elizabeth Rader is a Silicon Valley based attorney in the intellectual property litigation group of Alston & Bird LLP.
What would help is a better interpretation of the phrase "jury of peers". If the subject is engineering the jury should be engineers and the court officials should be experts in the field. This incidentally is practiced in many developed countries mostly with good results ...
It is sad that we live in the age of litigation. Granted none of us engineers are as savvy as one of the ex-USA presidents (who debated what the meaning of the word "is" is...!), I do feel that many of us lack the gift of gab to explain what we mean clearly. What Brian opines above makes much sense in such circumstances.
I have one piece of advise, and yes, I have been in this situation several times. Answer only the exact question you were asked. As engineers we are trained to be helpful - stop it. don't. You wont be thanked for being helpful. Make sure you really understand the question, and don't help them to clarify it. Make them do the work until they have given you a question that you can answer with confidence.
I can only imagine the pressure on the engineer before and during questioning. Engineers like to get it right but also want to not say the wrong thing that might be twisted. I have not been involved in a patent case but would want to spend a lot of time preparing with both the source documents and practice lawyers before giving a deposition.
Anyone had the experience and would be able to comment?
re: "Even the most unpleasant, harrowing deposition has to come to an end."
Patent Litigation is Exhibit A for the case that pre-industrial decision systems are grossly inadequate for the technology-centered post-industrial economy -- let alone for the impending digital economy. The jury/legal system is a misfit in the specialized field of intellectual property, by denying that intricate technology issues require seasoned judgement of experienced specialists. What is needed is technology-centric processes that help achieve the economic benefits from inventions and innovations, without getting mired in unproductive legal procedures.