Legal teams need to observe Expert’s fatigue & concentration

 

Summary

This was a significant and well reported patent case which was determined in the Intellectual Property List within the High Court last autumn.   

The technical aspects of the case required significant expert input from the panel involved.  The cross-examinations performed by leading Counsel for the parties were lengthy and complicated.  This led to confusion over what evidence was given when the transcripts were re-visited on subsequent trial days. The case shows how consideration should be given to experts who are being cross-examined so not to overload them with questions and information on the stand.

Learning points for experts

• Experts owe a duty to the court whilst been cross-examined.

• Giving expert evidence can be a tiring process and this is something to bear in mind and express concern as necessary.

• If as an expert you believe you have given incorrect answers in cross-examination, then you should have the opportunity to correct it, but you should not abuse this opportunity and give 'replacement answers'.

• When working with an instructing party, be clear what you can recall from memory and what you can report on with reference to sources (e.g. textbooks).

Learning points for instructing parties

• Don’t leave the Judge to disseminate lever arch files full of scientific materials.

• Aim to address matters succinctly and use the right approach to expert’s written evidence.  This will avoid the need to remedy unclear points in cross-examination.

• Use the time for cross-examination wisely so not to cause the expert to become over tired and lose concentration.

• Consider the timetable for the day at trial. When are the breaks likely to take place?

• Legal teams should carefully observe their witnesses and speak up at trial if they detect that an expert witness is becoming tired during cross-examination.

• When preparing an expert’s report consider what the expert can accurately recall from memory.  Will extracts of the report cause suspicion if not backed up with references? Such references can be to textbooks for example.

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