So Oracle won its big battle with Google. Sort of. In Phase I of the fight over whether Android made inappropriate use of Java, a jury ruled today that Google did, in fact, use Oracle's copyrighted products without authorization. The jury could not, however, determine whether Google did anything wrong because it could not rule on fair use. Was it fair or improper for Google to use Java as it did? We don't know. And since what Oracle really wanted was damages, it's not clear how to proceed with the damage assessment phase (which might be Phase II, or might be deferred until after the patent component of the case).
If the jury couldn't determine the fair use issue, it stands to reason that the two sides were equally persuasive--or unpersuasive. Whose job is it to get this information out? Typically, that task falls to an expert witness.
Many people think that expert witnesses are merely credentials for hire--and I suppose that in many cases, they are. But those of us who take pride in our work, and who retain our professionalism, approach the challenge quite differently. For us, the work proceeds in two phases.
A good litigation expert--which is what we are before we become witnesses--conducts technical or economic analyses on behalf of one party to a dispute. That analysis should help counsel and client guide strategy, both informing settlement discussions and approaching litigation.
Once the testimonial part of the work begins, the primary task shifts from analysis and advising to education. Courts allow expert testimony for only one reason--to explain complex technical matters to "triers of fact," meaning juries or judges lacking deep technical training. An expert witness, then is first and foremost an educator.
I don't know who conducted the expert work on behalf of either party (though I suppose I could find out). And I cannot comment on the quality of either the analysis or the advice. But both parties to this dispute could afford to hire the best--and when it came to education and communication, they both seem to have failed.
Something to ponder next time you contemplate the meaning of "expert witness."