We recently sat down with Thomas Maas, an antitrust, intellectual property and complex commercial litigator at Odom & Des Roches who specializes in matters involving the pharmaceutical industry. He considers his work with experts abnormal in that he handles expert witness relationships daily, whereas many of his colleagues rarely work with experts. This provides him with a unique perspective, as he has seen expert witness strategy from all sides and understands what is needed to prepare experts for success.
During our conversation, which we have highlighted portions of below, we discussed common attributes among world-class expert witnesses, what he looks for when examining the experience of an expert, and where he finds his best experts. The interview has been lightly edited and condensed for clarity.
Thomas: I’ve seen great first-time witnesses who haven’t done this before, who aren’t professionals, who just have that instinct to be really careful and precise. These types of experts come from different backgrounds. One of my favorite witnesses is a law professor and a former FDA attorney and just has that natural precision: very careful, very precise. I had a lot of faith in her right away because her other training provided the skillset and temperament that really makes her not just good at the substance, but great at staying in her lane, being careful, and not trying to be a hero.
The professional witness path is tough because you know it comes with a bit of a template. They might have opined on an issue a couple of different times. That can give you a head start on some of these issues, and some of the prep, however, like anyone else, they could come with some bad habits too.
Some of the professional witnesses are very obstructionist and that can be helpful on defense tactically to some degree, but it also has some impact on credibility. Even the most recalcitrant witness will have to answer a question eventually. Some of the professional witnesses I think have gone down the wrong path of refusing to answer anything that’s perceived as an unfriendly question. But even that tendency can be taken advantage of, especially if you’re not really focused and immersed in the substance and ready to defend your opinion as opposed to just stonewall. That technique and trend in the industry, I think, has been troubling and frankly not great for the witness or the other side’s case.
Thomas: I think a lot of the best experts kind of rise by accident. I’ve not seen a lot of people develop those skills with intentionality, at least before they’ve done their first expert witness gig.
That middle ground of someone who is a real professional, a real academic, a real consultant, or someone who’s in the weeds or in the thick of it — someone who is an actual businessperson who’s still practicing, still a lawyer, still a professor, still an engineer, whatever their specialty is — if they’re still a real practicing professional who also does this stuff on the side so often, I really like that sweet spot. I think they come off better to the jury. I think they are more relatable, especially for complicated cases. Jurors are there for common sense; they’re not there because they know the medicine or the regulations or the technical stuff. The reason we have juries is common sense and credibility determinations. I think there is something to someone who is still in the fight in practice.
My favorite experts are all in that vein. I like professors, professionals, or recently retired professionals who do a little expert consulting occasionally; experts who don’t make it an everyday thing for them. They do need some more coaching, as they don’t know the process as well as others. It’s a little bit more work for you on the prep side sometimes. Your preparation should be the same no matter what, but sometimes people can lean on the professional experts a little more because they’ve done it already. They’re familiar.
But for me personally, I really like that sweet spot in between.
Thomas: I have had success with both methods. I think frankly as long as the case is big enough, I like doing both. We live in a world where budgets are important, and your time is not infinite and, especially if you bill by the hour, you can’t waste time.
When searching on your own, you might be fishing in the same pond every time. When you bring in an outside firm, they are looking at new databases, new people.
Some people will get a consultant service, get a recommendation or two that they don’t like, and say, “well we’re not going to do this if they don’t get us the right people.” [If] you’re trying to find a pretty unique skill set, you should be willing to strike out a couple of times and, frankly, if you’re not learning from interviewing and talking to people that don’t quite fit what you need, you’re probably not paying attention.
I think casting a wide net is a no-brainer. If there is someone you like and trust on a similar issue and you want to use them again, that’s fine. But there is value in refreshing your stable of experts if you’re a repeat player and considering a lot of different people even if you go with your old faithful.
Experts these days are so important at trials, especially big complicated ones that I think you owe it to yourself and your client to cast a wide net. Diversifying your sources of how you look for these people and where you find them, I think is a no- brainer.
Intellectual property is a form of legal entitlement which allows its holder to control the use of certain intangible ideas and expressions. The term ‘intellectual property’ reflects the idea that, once established, such entitlements are generally treated by the courts as if they are tangible property. The most common forms of intellectual property include patents, copyrights, trademarks, and trade secrets.
Litigation is the process of legal action between two opposing parties who are working to enforce or defend a legal right. In most cases, the parties settle out of court by negotiating an agreement. Some cases go to court, where a judge or jury hear both side’s argument and determine how the case is settled.
In June 2018, The United States Patent Office issued its ten millionth patent using its current numbering system, which began with the Patent Act of 1836. It took 155 years (1836-1991) for the Patent Office to issue its first five million patents, but only twenty-seven years to issue the next five million. There were over 308,000 patents issued in 2018 alone.