A seasoned litigator in patent disputes shares advice for engineers about how to testify-and how not to testify--in a deposition.
It’s harder to prepare if you are the designated witness for a topic. This kind of witness cannot say “I don’t know” or “I don’t remember” too many times, even if that is the truth, because the other party will complain that the company’s witness was unprepared and may ask the Court for a new designated witness.
So if you are chosen as the person most knowledgeable, you have to become knowledgeable. This may take days of reviewing documents and then more days with your company’s lawyers practicing answering questions. The preparation is not to memorize lines but to get in the habit of listening carefully to the question and then thinking about your answer before you start speaking.
It is not cheating or coaching to prepare, so do not feel like this is anything to hide. You can and should answer how much time you spent, whom you met with, where was the meeting and how many times did you meet. Take credit for your hard work!
Generally, questions from the opposing lawyers are designed to bring out what you would say on the witness stand. Other questions are to “lock in” your testimony so you cannot say something different at the trial. Some questions are seeking testimony to persuade the court to order additional discovery or to decide aspects of a case before trial. Some questions are just to try to identify possible other sources of information to explore.
Often, a lawyer will use terms from a patent claim in questions, hoping to get a nice clear statement that your accused product meets the claim’s requirements, or that an earlier patent discloses exactly what your patent claims as a new invention. These questions will sound like straightforward fact questions that you can answer with a yes or no, but the meaning of the words in the question may be hotly disputed between the parties and decide the outcome of the case.
You should be prepped so you know what claim terms are disputed. It is often a good idea to answer a question in your own words, even if you think the answer is yes.
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.
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 ...
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?
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.
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.