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Interesting reading -- it is always interested to read commentary on cases where one has participated and actually been present at trial. What I can say is that it can be the case that what apparently speaks to a jury can be the difference in tone between an expert's response to direct and cross -- I think I would perhaps prefer an expert uninspiring direct and cross, than to have an expert bold and confident direct followed by a cross where the expert's responses are noticeably more hesisitant and cautious. Technical people sometimes reflect a lifetime of training whwere they are very careful and cautious when they fear getting caught in talking about detail and are mortified about being wrong on the slightest details -- this may sometimes compromise effective testimony.

I think one of the most difficult issues I've encountered is the issue of what must be identified and produced as having been reviewed (one standard) or having been relied upon (another) by the testifying expert in Federal practice. I have worked on cases where even emails between counsel and the expert were ordered produced. Thus, I am very very careful about what I write or provide to an expert. If for example, you wish to run a "test" or the like, you might consider carefully if and how you want the testifying expert to participate. As an interesting aside, there are cases which have stated that interactions with a nontestifying expert are protected by work product immunity (and atty-client priv.)

Another consideration, particularly in IP cases is whether and when to have the expert produce a new report -- in patent cases, issue by the court of a "claim construction" can render much of an experts report not applicable. The concwern then is what the court will allow the expert to testify to given the Rule 26 diclosure requirements, balanced against the use your opponent will make of the fact that an expert changed the expert'as report and the fact that it was counsel that caused the exoert to understand the need for the change. I've seen this scenario unfold in open court in front of the jury. All this is an outgrowth of the conundrum of expert reports under Rule 26 -- how detailed do should the disclosure be? If too detailed, the expoert has little flexibility to respond to new information etc. and perhaps might be a sort of give away -- too non-specific and the judge may not permit the expert to testify to details at trial.

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