How does one become an SEO Expert Witness?

A Search Engine Optimization Expert Witness, or “SEO Expert Witness”, needs to have a number of characteristics in order to be considered qualified to work as a testifying expert in litigation. I have been asked a number of times about what it takes to be an SEO Expert Witness, so I thought it would be helpful to people who are developing their careers if I provided some information.

The first time I served as a type of expert witness whas in about the 2008 timeframe when I was approached by an attorney working for the U.S. Department of Justice. There was a review going on to assess both the Microhoo deal (a proposed search engine service syndication deal between Microsoft and Yahoo! that also included advertising), as well as the Google-Yahoo! advertising deal that was happening in the same timeframe. The D.O.J. apparently approached a number of thought-leaders within the search engine marketing industry to explore how those cooperative agreements between the major search competitors might play out in terms of impact to both consumers and advertisers. The attorneys were trying to decide whether there might need to be anti-trust action taken. There was some widespread concerns about the obvious reduction in marketplace competition as these deals were emerging. I agreed to testify in an informal hearing among the D.O.J. attorneys, and I answered their questions to the best of my abilities. As a result of the D.O.J.’s determinations and communications with Google and Yahoo!, the two companies abandoned their plans for the cooperative agreement. (The outcome does not necessarily reveal my testimony nor recommendations.)

While that very limited intro into the role of expert witness was my first work in this niche, it was not until a couple more years later when I really whet my teeth at an intensive expert witness project.

I had earlier written a number of articles about how I seriously questioned the Yellow Pages Association’s periodic industry usage statistics which seemed to buoy the concept that print hardcopy yellow pages books were still seeing stable or even growing usage while internet usage just kept growing by leaps and bounds. As a longtime veteran of the internet side of yellow pages at that time, I had cause to suspect these statistics were incorrect, and after I dug into them deeply I discovered they were likely very skewed because their polling of consumers was skewed towards landline users which were a dwindling demographic comprised of increasingly older people. I established very strongly that the Yellow Pages print directory usage was declining. By contrast, the polling tended to miss the younger demographic of consumers who were less likely to have landlines and more likely to conduct internet searches to find businesses rather than use print yellow pages. (In fact, my analyses further indicated that the concept of “yellow pages” itself a was rapidly fading from the awareness of younger consumers, based upon the zeitgeist as reflected by Google Trends.)

Those series of critical articles about Yellow Pages brought me to the attention of lawyers who represented a couple of blue-collar pension funds that had decided to sue the former exectives of R.H.Donnelley corporation, the largest and oldest yellow pages company in the United States. The lawsuit claim asserted that the Donnelley executives knowingly decieved stockholders into thinking that the print usage was fine and would remain stable into the conceivable future, despite the reality — this deception resulted in substantial losses for the pension funds, and harmed many retirees. (The pension funds involved were “Local 731 I.B. of T. Excavators and Pavers Pension Trust Fund”, the “Private Scavenger and Garage Attendants Pension Trust Fund”, and the “Textile Maintenance and Laundry Craft Pension Fund”.)

I spent a number of weeks writing an in-depth expert report that carefully and precisely established how executives throughout the Yellow Pages industry were highly aware that the more lucrative and larger side of the industry — print yellow pages advertising directories — were going into decline in terms of usage, while the internet was growing. Unfortunately for Yellow Pages companies, their internet ad products were not growing at the same rate of losses on the print advertising side — in large part because of competition from many other agile internet competitors — particularly the large search engines. This was aligned some with a common-sense observation: if you could find everything you needed in a search engine, then why would you refer to a less-fresh and more inconvenient thing like a printed book — or, for that matter, why would you go to specialized business directory websites like internet yellow pages? All of the major yellow pages industry analysts clued-into the writing on the wall, and provided executives throughout the industry with statistics and predictions that very overtly shouted the fact of the oncoming paradigm-shift apocalypse. 

Unfortunately, I believe some yellow pages companies played a bit of a game with stockholders, perhaps under the belief that if they could delay the realization that the print YP juggernaut was about to plummet like the Hindenberg, then it might buy them time enough to get their internet products robust enough to offset the losses as advertisers bailed-out of spending thousands of dollars yearly on a product that they began to realize was not translating into sufficient business referral promotion. 

The exposure for the R.H.Donnelley executives was large, and my report was perhaps one of the most devastatingly effective ones I’ve done. In the timeframe spanned by the complaint, the R.H.Donnelley CEO, David Swanson, had also served as Chairman of the Board of Directors of the Yellow Pages Association, which I had critiqued so heavily in my earlier Search Engine Land articles. After the report was disclosed to the defendants’ attorneys and various other discovery exercises had been conducted to uncover a lot of related evidence, the two sides agreed to settle very favorably for the pension funds, with the shareholders receiving a $25 million settlement. I was disappointed that I did not get to testify — even in deposition — and my carefully built research report would never see the light of day. However, after the settlement was agreed-upon, the defendants’ attorneys did confide to the plaintiff’s counsel that they had not looked-forward to potentially trying to counter me in the courtroom, ha-ha!

That experience was something of a turning point for me. It made me aware that legal work as an expert witness could be profitable and personally rewarding. The payments for the work provided me with enough capital to go independent and launch my own business. It also made me realize that I apparently could now emotionally handle the contentiousness that comes with court fights. When I was younger, I think I would not have been able to handle the stress involved, and would have hated to have to repeatedly dived-into arguments. But, the pension fund case also gave me satisfaction at helping people who had been victimized to some degree, and I felt I had helped to fight an injustice. So, I was then open to do more.

It was not until a bit later that I participated in a legal case once more — a lawsuit where PODS Enterprises sued U-Haul for trademark infringement. That was a case that used my technical background in SEO and Analytics to help build a case and help establish a model for damages. It was also very satisfying, because U-Haul was something of a big bully in the moving industry, and they had thrown their weight against what had been a much smaller, family-owned company, PODS. U-Haul had earlier attempted to acquire PODS, but after some months the negotiations had broken down, and PODS was acquired by others. After that point, U-Haul defacto decided to launch their own competing container moving products, and blatantly began using the word “pods” in branding their competiting products as though the word was not a the registered trademark they knew it to be — U-Haul tried to genericize the PODS trademark by brute force.

My work helped to establish that U-Haul had incorporated the PODS name in multiple places throughout their website code, making it appear on tens of thousands of pages, including in their Search Engine Optimization (SEO) work. The incorporation of the “pods” word in their Titles and Meta Descriptions meant that the mark appeared not only for users who arrived on their website, but ALSO to people searching for “moving pods” in search engines, and each time the mark was used inappropriately by U-Haul comprised another discreet instance where people could see the improper trademark. Each instance where a consumer viewed search engine pages as well as when they viewed the U-Haul website’s pages, comprised a “misimpression”. My work with the analytics helped to count up misimpressions, and these statistics were used to help determine the damages that U-Haul should pay PODS for the blatant trademark infringement. 

The PODS v. U-Haul case was my first gig as an “SEO Expert Witness”, and the course of the case and the court proceedings were fairly dramatic. U-Haul threw something like eleven expert witnesses to counter the four of us who were PODS’ experts. Along with me, there was a marketing professor who testified about trademarks and how corrective advertising could provide relief for PODS, a psychologist who was expert in surveying necessary to establish that PODS was a nationwide recognized brand name, and a forensic accountant who could testify about PODS’ losses due to the infringement as well as profits made by U-Haul on the products that infringed. Since I was testifying on the SEO and Analytics knowledge and work that I have focused upon in my career, this project was highly satisfying to me. The work with the attorneys and other experts was highly educational to me, and I was able to testify at a grueling, 7.5 hour deposition as well as on the stand in federal court in Tampa, Florida. PODS prevailed in their lawsuit, and the jury awarded PODS $62 million.

Thus I became an SEO Expert Witness. 

While I focus upon SEO, I also provide expert witness service in cases involving online reputation management, defamation, trademark infringement, social media, and internet analytics. (I’ve done even more beyond these topics.) I’ve since provided expert witness service to GoDaddy, Starbucks, Versace, and other prominent companies. My most gratifying case was done pro bono — assisting a porn revenge and human sex trafficking victim obtain a $7.25 million judgment against her abuser.

Because there are a lot of lawsuits that involve internet usage, websites, internet technology and search engines, I believe there is room for competition amongst those of us that work in this niche. So I am sharing a little of my experience and understanding of how it all works here.

First and foremost for becoming an SEO Expert Witness, attorneys and judges will look at your background to see whether they would believe you are qualified. Merely knowing SEO is probably insufficient in of itself. Courts would like to see that you have a mixture of background education and experience to be considered knowledgeable in the field. So, your education might help establish this, and having a sufficient work history that reflects that you would know what you are talking about would be necessary. As part of this, other details would augment the assessment, such as if you have had SEO articles published on prominent industry websites, or had an SEO book published. Other factors might also help augment the assessment, such as if you have been invited to speak at industry conferences over time, and if you have worked for prominent companies in performing Search Engine Optimization. Holding certifications in Google Ads, Microsoft Ads, and Google Analytics would also help.

One other factor is very key to many attorney’s decisions: whether a candidate has experience in testifying in cases in the past. This is obviously something of a chicken-or-egg dilemma, because if you desire to be an SEO expert witness, then it is a bit harder to break into if you have not previously testified — but, how do you get experience testifying if you have not done so before? Probably the solution to this is to promote yourself as an expert, and get experience with a number of smaller, local cases in order to break into it. Attorneys highly desire one to have experience not only at writing expert reports, but particularly some experience in providing testimony at depositions as well as in court itself.

Once you get selected to serve a client, I strongly suggest that you work carefully to maintain a good degree of objectivity. It can be very challenging at times because one wants one’s clients to prevail in their litigation. But, some plaintiffs and defendants have been in the wrong at times, and there is no way to make a silk purse out of a sow’s ear. I tend to prefer to represent clients that I feel are in the right, or that are being taken advantage of, but I’m not averse to giving professional representation to those who are in the wrong in order to help them get a fair shake. For instance, I once represented a store owner that created a fake website pretending to be a competitor’s company, and while it was clearly a joke website, he made defamatory representations on it. That website was only live for a few weeks in a very small town, but the other company sued him, and their “expert” cited a shady statistics source that credited his website with getting over a million pageviews in the brief time it was up! My client was in the wrong, but was being sued with an expectation of such huge damages based on the shady statistics source that it was not going to be a fair shake. I was able to trace the backend data source of the statistics to show that it was highly erroneous — a very unique situation where I was essentially able to “prove a negative”, and the two parties settled on a reasonable basis. So, even if your client is in the right, do not cheat or be negligent about the work you provide on their behalf or you may do harm to your own reputation.

Obviously it helps if you are highly knowledgeable about SEO. Depth of SEO knowledge is table-stakes. Be sure to be familiar with past issues and functionality of the search engines, since some cases can stretch back for years. But, also stay up-to-date on recent changes and developments in search engines as well. One mark of expertise is being able to practice the discipline as opposed to merely resting on one’s laurels. Having authored an SEO book years ago likely does not reflect SEO know-how nearly as much as ranking prominently and sustainably for years for Google searches for “SEO Expert Witness”. 

Expert witness work in search engine optimization issues can be tricky as well. Be very solid in knowing the various pros and cons in search engine functionality — a background in information retrieval, computer science, and experience in hardcore programming all can come in handy. Search engines continue to be “black boxes”, in that those of us working outside of the search engine companies do not necessarily have direct knowledge of how things work under-the-hood in the algorithms. But, there are areas that are fairly unequivocal in terms of how they function, such as the impact of having proper keywords in well-formed HTML titles, and how snippets in search results pages frequently are likely to appear based upon Meta Descriptions. Even things that we know do not impact rankings, such as presence of a Meta Keywords tag, or placement of keywords within HTML comments are not used by engines for ranking determinations — while these things have long been established to not have ranking impact, they can provide evidence of intentionality on the parts of the website developers, such as in the cases of trademark infringement — a naive webmaster who thinks that hidden keyword tags are still important may include a trademark in a Meta Keywords tag, thus revealing an intentional effort to rank for terms that they do not have the rights to use in such a manner.

When deciding if you would like to work as an expert witness, it’s also important to realize that you need to have some schedule flexibility to provide required documents when they are requested, time to prepare and meet with counsel in preparation for trial, a day to testify in deposition, and to travel (if required) and spend hours waiting for your moment to testify in court. In this pandemic year, many or most court activities for SEO expert witnesses have involved meeting and testifying via video conferencing, so travel requirements have far reduced for the time being.

There are a number of other skills that are useful to the SEO Expert Witness as well, but you may explore them elsewhere, as the general expert witness skills are outlined in many other books and webpages. Learning the formal formats for affidavits and expert reports, knowing the pitfalls of providing testimony in depositions, and how to be effective on the stand in a courtroom are all things that one should read up on.

If you are considering working as an SEO Expert Witness, I hope you found this article helpful. Be sure to let me know in the comments if you have had any interesting experiences in providing expert witness service involving search and internet marketing!