Oracle America, Inc. v. Google Inc.

Filing 1803

ORDER RE GOOGLE MOTION IN LIMINE RE EXPERT VOUCHING FOR PREFERRED VERSION OF DISPUTED FACT (ECF NO. 1697) [re #1697 MOTION in Limine Google's #1 Summary MIL to Preclude Expert Testimony that is Recitation of a Preferred Version of Disputed Facts and Oracle's Opposition filed by Google Inc.]. Signed by Judge William Alsup on 5/3/2016. (Attachments: #1 Appendix Draft Jury Instruction on Expert Witnesses)(whasec, COURT STAFF) (Filed on 5/3/2016)

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DRAFT JURY INSTRUCTION ON EXPERT WITNESSES

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In this case, members of the jury, you will hear two types of witnesses. First, you will

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hear fact witnesses. These are people who were part of the story on trial and will testify to the

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facts they experienced firsthand. Second, you will hear so-called expert witnesses. Unlike fact

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witnesses who were part of the story on trial, the various expert witnesses have been retained by

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both sides after-the-fact to testify to opinions based on their specialized training or experience.

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To take an example from a more routine case, in a traffic case, a fact witness is someone who

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saw or heard the accident or were part of it, whereas an expert witness is someone like

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an accident reconstruction specialist who offers an opinion of the car’s speed based on skid

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marks.
In this trial, you will hear from more than a dozen expert witnesses, far more than the

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usual number, so I will now suggest some considerations for you as to evaluate their opinions.

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You may, of course, consider all of the usual considerations pertinent to fact witnesses.

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In considering the testimony of any witness, fact or expert, you may take into account:

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1.

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things testified to;

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2.

The quality of the memory of the witness;

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3.

The manner of the witness testifying;

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4.

The interest of the witness in the outcome of the case and any bias

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The opportunity and ability of the witness to see, hear, or know the

or prejudice;

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5.

Whether other evidence contradicted the testimony of the witness;

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6.

The reasonableness of the witness in light of the evidence; and

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7.

Any other factors that bear on believability.

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With respect to expert witnesses, the main reason we allow their testimony is because

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they may have specialized training and experience with insights that may help the jury

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understand a field of specialized knowledge and how it applies to the case at hand. Usually,

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these witnesses are paid by their respective sides in litigation. Two important caveats for experts

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are as follows:

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No expert witness should ever vouch for which side’s fact scenarios is

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correct. No expert was present at the events in question. None has firsthand

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knowledge. Experts may rely on particular documents and testimony and may

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make an assumption that the document or testimony is correct and then give an

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opinion based on that assumption, but the opinion is only as good as the factual

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assumption and that foundational fact question is always for you, the jury, to

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resolve, not for the experts. Put differently, experts should not invade the
province of the jury by purporting to tell the jury which side’s fact version is

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true.

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Similarly, no expert witness should attempt to tell the jury what someone

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had in mind or was thinking. The mental state and intent of the characters in our

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story on trial is for you to decide, not for the experts to decide. It is, however,

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permissible for experts to quote testimony or documents and then to assume that

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the statements therein were accurate and then based thereon to apply their

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expertise to render an opinion.

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With this in mind, I will now suggest to you some special considerations for your

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evaluation of the testimony of experts.
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To what extent, if at all, has the expert witnesses overstepped his

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role and tried to usurp the function of the jury by vouching for the truth of one

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side witnesses versus the other or by giving opinion on the mental state of the

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character involved in the case?

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2.

To what extent is the expert witness’ opinion actually anchored in

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his specialized knowledge and training as opposed to just argument, which you

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are just as qualified to make or reject as him?

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3.

To what extent is the expert witness’ opinion supported by facts

you find have been independently proven?
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4.

To what extent is the opinion contradicted by the facts?

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5.

To what extent has the expert witness relied upon a source of

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factual information that is biased?
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To what extent has the expert witness “cherry picked” the factual

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record to highlight material helpful to his opinion while downplaying the facts

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that undercuts his opinion?

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7.

To what extent has the expert witness forthrightly conceded points

versus stubbornly refusing to concede a point he should?
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To what extent has the expert witness been influenced by money

compensation paid by the side presenting him?

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For the Northern District of California

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These are merely considerations. It is always up to you, the jury, to decide how much

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weight to give, if any, to any testimony or evidence, including from expert witnesses.

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