Dear Friends,

This issue of The Expert Advisor contains valuable advice from two of Round Table Group's experts with vast experience in corporate and patent matters. First, our Featured Expert, Prof. Douglas M. Branson, a renowned authority on corporate governance and securities regulation, provides litigators with 10 tips for use in preparing expert witnesses prior to depositions and trial.

An article authored by Philip L. Brooks, Managing Member of Brooks Consulting LLC, brings an insider's perspective to patent-infringement investigations. Phil explains how methods of investigation have changed over the last decade and notes that important data can be obtained by attending trade shows, speaking with employees and industry experts, and conducting Web research.

A third article highlights the U.S. Supreme Court's recent ruling that limits the ability of patent holders to demand royalties from companies at each stage of the production process.

Round Table Group is dedicated to providing our readers with assistance in locating, preparing, and utilizing experts. Please send your ideas for upcoming themes or articles to mswansiger@roundtablegroup.com.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc.

By Philip L. Brooks[1]

The VP of Sales for your company just returned from the industry's top annual trade show in Las Vegas with bad news. In addition to manning the company's exhibit booth and meeting with clients in a private hotel suite, she took a quick spin around the trade show floor. To her dismay, she discovered that a company, which none of you had heard of, was demonstrating a device with features eerily similar to your most recently launched product. Although the VP had attempted to strike up a conversation with the person at the "new" competitor's booth, he clammed up when he saw the corporate logo on her nametag.

Now what...?

In 1998, Jeff Moore, then a law student at Franklin Pierce Law Center, conducted an informal survey of law firms and companies in which he posed two questions:

1.      "How does an inventor know whether his process or method patent is being infringed?"

2.      "Where can an inventor go to have his IP protected on an ongoing basis by monitoring for illegal use?"[2]

Moore's report included the following observations: 

"The offensive search for potential infringers is targeted at finding infringers that can be forced to license or pay damages. Once an infringer is located the patent and literature searches may still be required to defend the patent and encourage a settlement."

"Companies have mostly relied upon internal resources to keep up on technology and identify potential patent infringers. Employees know the business, the key players, the technology, and often spot competitors that are infringing on process patents."[3]

Mr. Moore's comment that internal employees know the market best and are usually a more efficient and effective source for tracking down potential infringers might have been true 10 years ago. However, in 2008, his rationale appears to apply only in a fraction of patent-infringement investigations. Indeed, many clients are not really focused on such monitoring activities in the normal course of business--they have too many other things to concentrate on. Outside experts with industry, product, or patent-infringement experience are able to access information sources that may not be available to internal employees. Remember how the trade-show booth attendant clammed up when he recognized a competitor? 

Nevertheless, corporate employees are critical to the process because they can provide the retained expert with valuable information regarding the company's products and the industry in general. They are also helpful in defining the ways in which the claims of the patent might manifest in the features of products that your company does not currently produce.

One of the valuable side effects of patent-infringement investigations is the ability to obtain competitive and market intelligence, beyond the evidence of potential infringement. This information provides your company with valuable data that can be used going forward in day-to-day business activities.

Today, the volume of information available to businesses is much richer than it was in the past. Pertinent data can be gathered by attending trade shows, speaking with such parties as former employees and industry experts, and conducting Web research. In 1998, many companies (even very large ones) often had fairly static Web sites that consisted of only a few pages of text. Today, businesses often maintain multiple Web sites that offer deep content, multimedia informational sources, and links to third-party sources that provide supplemental information. This trend toward increased availability of valuable information shows no sign of slowing.

Retained experts may provide a valuable service in assisting your counsel in determining the liability aspects of patent-infringement cases. Product searches and investigations to establish potential infringement of your company's patent portfolio are conducted by:  

• Identifying businesses in your company's market and nearby markets
• Investigating companies and/or products that potentially infringe your patent portfolio using a detailed methodology, incorporating the latest Web-search technologies
• Identifying products of these businesses with features/functionality that potentially infringe upon your patents' claims



• Legally collecting documentation of this potential infringement
• Obtaining brochures, white papers, user's manuals, press releases, product reviews, financial filings, and other product or corporate document
• Developing questionnaires in conjunction with counsel to elicit information, through interviews and/or Web demos, that is relevant to the patent claim
• Attending trade shows and industry conferences in order to obtain product information
• Acquiring products for further technical evaluation

In "Patent Searching an Effective Tool for Competitive Intelligence," author Vinod Singh makes a very good case for why patent searching should be left to the experts--professional patent searchers.[4]   He discusses detailed steps--at least 13--that he considers essential for a complete search. He also points out that a skilled searcher should possess knowledge of search procedures, database limitations, technical tools, and software.

An early step in Mr. Singh's search process involves recordkeeping. He recommends that interested parties "[r]ecord the search words on a page in a project notebook and add other words as they come to mind or encounter them in other patents. Usually the word list becomes separated into groups of words covering different aspects of the invention."

This is excellent advice. When using search tools, you may end up following a number of different and often convoluted paths. Documentation of the keywords is essential to enable the researcher to explore all avenues and to revisit pertinent URLs using other search engines and/or tools. Moreover, the terminology used with respect to certain products or technologies often varies significantly in different parts of the world. Sometimes the variation may be as subtle as the use of acronyms, rather than complete word descriptions.

Also, while your company may rely on certain keywords to describe an invention, an expert may know that other members of the industry use a variety of keywords. In some cases, the infringement may occur in industries with which your company currently does no business. The expert's knowledge of the keywords applicable to other industries may lead to the detection of infringing products that your internal team would never discover. It is important to make sure that all relevant keywords are incorporated in your search--individually and in different combinations.

Back to the trade show...

Attendance at trade shows is a valuable tool in the expert's arsenal.  In the course of my patent-infringement investigations, I have uncovered some amazing details on products at trade shows.  Presented below are just a few of the insights I have gleaned over the past 12 years:

•  In addition to obtaining informational product brochures and white papers, attendees have access to demonstrations, cutaways, or components of products. Moreover, although the practice is not widespread, some visitors take digital pictures of booths and products. Thus far, I have not personally observed exhibitors discouraging people from taking pictures. [5]
• Salespersons are often more open to discussing product details in person than they might be over the phone.
• Conversations with other attendees can be a great source of information.
• Examining the exhibitor list before the show begins enables you to maximize the time spent at the show and to check out all companies that are of interest to you. In one trade show visit, my primary focus was on a specific company and its customers' booths. However, while reading the materials ahead of time, I noticed several businesses that were competitors to my target company, and I decided to stop by their booths. During the course of that show, I discovered eight to 10 competitors that had the potential of infringing upon my client's patents, and I subsequently shifted my primary focus to those entities.

Be sure to consider the role that an expert can play in your next patent investigation. You may derive significant value by retaining an expert to develop an ongoing infringement-monitoring program to protect your company's patent portfolio on a long-term basis. Having invested in the patents, you realize their true value only when you enforce those patents or seek out potential licensees.

The U.S. Supreme Court's recent ruling in Quanta Computer, Inc. v. LG Electronics, Inc. (553 U. S. __, Dkt. No. 06-937, June 9, 2008) limits the ability of patent holders to demand royalties from companies at each stage of the production process. In this case, LG Electronics (LGE) licensed its computer component patents to Intel Corp., which then sold microprocessors and chipsets produced using those patents to computer manufacturers. Both Intel and non-Intel components were used in combination in the computers. The manufacturers did not modify the Intel components and followed Intel's specifications when incorporating the parts into their systems.

LGE unsuccessfully argued that the manufacturers' combination of Intel and non-Intel products infringed upon its patents. The Court determined that the doctrine of patent exhaustion applies to method patents. Even though a patented method cannot be sold in the same way as an article or device, methods can be embodied in a product, and patent rights are exhausted upon the sale of that product. Because LGE's license agreement authorized the sale of components that substantially embodied the patents at issue, consummation of that sale terminated its patent rights with respect to the components. The terms of the license agreement did not restrict Intel's right to convey its products to third parties for use in combination with non-Intel parts.

Prof. Douglas M. Branson, the W. Edward Sell Chair in Business Law at the University of Pittsburgh and a permanent Senior Fellow of the University of Melbourne School of Law (Australia), has been on Round Table Group's list of experts since 1996, consulting and testifying in corporate law, corporate governance, and securities regulation cases.

As an expert witness in many high-profile cases[1] and a consultant/lawyer with respect to hundreds of major business transactions and securities offerings, Doug is an authority on the attributes that lawyers should look for when retaining experts. His tips for avoiding impeachment attempts to provide timely guidance on prepping experts prior to depositions and trial.

 

This Top 10 presentation, á la David Letterman, is a valuable checklist for litigators to follow:

10.  Make sure that your experts minimize the number of written drafts by editing their work product electronically whenever possible. In this way, the opposition will be unable to call attention to differences in drafts, changes in wording, and so on in an attempt to waste precious deposition time trying to make your witnesses look bad.

9.    Direct your experts to honestly relate their credentials or experience. Any good lawyer will detect embellishments and portray the witness as untruthful at trial. Knowledgeable, but inexperienced, witnesses will quickly build up experience; exaggeration of their qualifications is unacceptable.

8.    Caution your witnesses to remain calm and cool, regardless of potentially abusive conduct on the part of the opposition. 

7.    Tell your experts that although a sense of humor is acceptable at a deposition, they should never be flippant or sarcastic. Direct them to be pleasant, answer the questions, and go no further; it's not their place to argue with the opposition.

6.    Understand that experts, after repeated provocation, may push back with a show of anger against the opposition. Advise your witnesses to revert to calm and cool as quickly as possible after an outburst. Although the ostensible reason for discovery is to produce information, many lawyers are bullies who pride themselves on their ability to intimidate and embarrass. Occasionally, witnesses have to show their tormenters that they are made of firm stuff.

5.    Clarify that it is not the experts' job to win the case for your side; they are merely cogs in a wheel. Make sure that your witnesses have a well-defined role in the proceedings and that they stick to that role.

4.    Advise your experts that you will steadfastly defend them in the proceedings. Reassure them that you will request recesses when it appears to be necessary or ask that the proceedings end for the day if they seem to be tiring. Make it clear that you will be actively representing them and will stick up for them whenever possible.

3.    Direct your experts to be modest, but to push the envelope on their opinions to the extent possible. Discuss tactics before the deposition.

2.    Coach your experts to be effective teachers when testifying at depositions or in court. They must explain things in clear and simple terms and provide the jury with a comfort level in a field that is otherwise alien to them. This may be their highest and best use in the litigation.

1.    Finally, work with your experts to ensure that they will clearly present their opinions. Advise them to remain strong, stay firm on what they agreed to say, and stick to it. There is nothing worse than a wishy-washy expert witness.

When screening possible experts, attorneys should look for witnesses with firm opinions and insight into how they can aid in the development of the case. If they lack familiarity with an area or sub-area, they should tell you outright, rather than "faking it until they make it."

Using an expert who has done exactly what your case entails (for example, a proxy contest at a large bank or an IPO for a biotech company) may be counterproductive because many parties with personal experience in a given area may not want to be witnesses or experts for your side. You're better off finding somebody who has a good overall experience level and is honest with you, rather than someone who is second rate but "spot on."

Meet Doug Branson

Our Featured Expert, Prof. Branson, graduated cum laude from Northwestern University School of Law and later pursued a Master of Laws at the University of Virginia, where he specialized in corporate and securities law and finished first in his class. After teaching for 22 years at Seattle University, he was recruited by the University of Pittsburgh in 1996. He authored the first U.S. treatise on corporate governance,[2] as well as 10 books on corporate law.[3]  He wrote numerous law review articles for prestigious legal periodicals in the United States, Europe, Singapore, Hong Kong, and Australia. Doug is generally considered to be among the top U.S. scholars on corporate governance and securities regulation.

Branson has served as a visiting professor at Cornell University, the University of Oregon, and Washington University. He has been the Charles Tweedy Distinguished Visiting Professor at the University of Alabama, a Fulbright Scholar at the University of Ghent, and the Paul Hastings Distinguished Professor at the University of Hong Kong. He has lectured in numerous venues around the world. Additionally, he was a U.S. State Department-sponsored consultant on corporate governance and capital markets law four times in Indonesia, twice in Ukraine, and in Slovakia.  

by Lisa Fields

Your client believes that a competitor's new product infringes upon its patent. You need to find an expert witness to determine whether or not the allegations are true. How can you find a top quality expert with the specific knowledge you need?

Dennis Crouch, an Associate Professor of Law at the University of Missouri, recently conducted an analysis regarding patent litigation.  His findings indicate that our fictional product infringement description above is a very real problem for many practicing patent attorneys.  He observed that the number of patents being litigated has substantially increased over the last 20 years. "More complaints are being filed and more patents are being asserted with each complaint."    

One way to help ensure that your patent cases reach a successful conclusion is to seek help from an expert witness referral firm such as Round Table Group (RTG).  Round Table Group fulfill requests for patent experts more often than any other type of expert, says RTG's Nick Zafran, who has been researching and compiling the company's extensive billing data.

RTG's research has shown that patent experts bill for more hours than any other category of expert witnesses. "A medical expert often reviews a single person's medical file," says Zafran, "but for patent experts, there can literally be hundreds or thousands of pages of documents to review."

Top-four fields and their rates

When seeking a patent expert, consider billing rates for the top-four fields:

1.    Computer scientists.

They examine computer systems, Internet protocols, software source code and operating systems--and earn an average of $425 per hour, according to Round Table Group data.

"They're the most in demand, and the stakes involved in these cases are a lot higher," says Zafran, "so they feel that their rates can be higher."

2.    Biomechanical engineers.

These experts review cases dealing with medical devices like heart valves and stents and earn an average of $386 per hour. "It's a very big area now, especially for us," says Zafran.

3.    Electrical engineers.

They consult on cases that involve electrical devices, among them circuit boards, semiconductors and electronic power systems. These experts earn an average of $353 per hour, according to RTG data.

4.    Mechanical engineers.

Cases typically involve mechanical devices such as pulley systems or automotive components, and engineers earn an average of $291 per hour.

Technical jargon translation

Patent cases usually settle, says Zafran, but attorneys nonetheless seek experts who can translate technical jargon into layman's terms. Round Table Group can make this step of the process easy.

"We can set up a phone interview so an attorney can get a sense of how well someone speaks," says Zafran. "If you went to one of the standard free lists to find an expert, you're not going to get that."

Attorneys also seek experts who have some--but not too much--experience. "They prefer experts that have specific expertise without appearing to be a hired gun," says Zafran.

"Finding someone who has experience with your product who doesn't go from case to case is hard to find on your own."

It is important to note that expert services firms commonly present a rate higher than what an expert demands. The amount varies but is typically around $100. In exchange for this, expert services firms locate and vet hard-to-find experts in all specialties. These experts, at the top of their field, are often not listed on any free "expert" databases.

Predictions for expert billing rates

This concludes The Expert Advisor's series on expert witness billing rates, but we'd like to leave you with a forecast for the future of the topic at hand.

The following trends should surface in the coming months or years, according to Round Table Group research:

•    Billing rates should start moderating.

Expect expert witnesses' rates to stabilize or even drop slightly, says Zafran. The main reason? "Competition for jobs," he says. "That's going to keep rates where they are or bring them down a bit, across all categories, except maybe very high-end surgeons with specific expertise."

•    Lending experts will be in demand.

More litigation surrounding mortgage lending should surface in the near future, says Zafran. "Experts who at one time worked in high-level lending positions are going to be fairly high in demand," he says.

To learn more about expert witness billing rates, or to source an expert witness for a case, get in touch with Round Table Group by calling 312-280-1930 or emailing expertadvisor@roundtablegroup.com.

by Lisa Fields

When seeking an expert witness, should you set your sights on someone local, or should you search nationwide? Of course, there's no right answer: Your decision will vary depending on the details of your case.

Regional or Nationwide: How do you decide?

Distant experts can be just as accessible as regional ones, says Round Table Group's Aaron Yoho, because "there's been a change in the way that people conduct business.  People take flights daily for their jobs, so it's not out of the realm of reason for experts to travel to see their clients."

Money might not be a factor, either, Yoho says, since faraway expert witnesses often don't charge more than regional ones--except those from major metropolitan areas.

But, there are reasons beyond money or accessibility for choosing an expert witness in your immediate geographical area.

Consider the following points to determine whether geography makes an impact on your case:

Narrow your search to your geographical area if:

Having someone closer to the scene would be an advantage.

"If it's an engineering case, the expert may want to look at a bridge or building in person instead of relying on pictures," Yoho says.

Juries in your state prefer hometown experts.

"Some jurors perceive expert witnesses from different locations as condescending," says Round Table Group's Phil Davis. "If you choose expert witnesses with local flavor, the juries may relate to them better."

Rules require that expert witnesses are from your region.

"A law in Tennessee states that you have to be a resident of Tennessee, or a contiguous state, if you're going to testify," says Yoho.

"There are also instances where the expert witness needs to have a state's professional engineering license to understand the regulations of a case."

Search for your expert nationwide if:

There's no concrete reason why the expert would have to be local.

"The vast majority of expert witness' work gets accomplished in their own offices," says Yoho. "If they need to go on location, the cost is of no consequence in the long run, considering how inexpensive it is to fly nowadays."

You seek someone with credentials from a notable university.

"In a medical malpractice case, a jury might like someone from Johns Hopkins better than just a local hospital," says Yoho.

Limiting Scope Can Be Daunting

Finding an expert witness on your own can be time-consuming and difficult, especially if you limit yourself to a tiny geographical region, or you're not sure where to start when searching on a nationwide scale.

"We find experts all day every day," says Yoho, "so we're much more expedient and efficient. Our network leads to our success. There's a lot of overhead for attorneys to make the connections we have, and for them to do it four or five times a year, it's not worth their time."

Round Table Group is well-versed in regional and national searches for expert witnesses. "If you're limited by local rules and regulations, we understand those kinds of searches," says Yoho. "If you're looking on a wider scale, we search in a way that makes sense for you: Most of the researchers at Round Table Group start at your location and spiral outward from there. We pride ourselves on finding the best experts."

Dear Friend,

With this issue, we continue our examination of billing rates. Number one on Round Table Group's list of most expensive expert witnesses: doctors.

Our Medical Expert Witness Billing Rates article de-mystifies the criteria for the top five requested specialist categories. Make sure you get the best possible medical expert for your case--for the right price--by comparing your budget to our statistics.

Then, take a look at 4 Ways to Avoid Spoliation With Expert Witnesses. Document spoliation could result in preclusion of testimony--or worse. By knowing the expert witness' role in spoliation prevention, you have a leg up on the other side.

Please let me know if you have any ideas for upcoming themes or articles. Email me with your comments. As always, our mission is to provide readers with an edge in locating, preparing and utilizing experts.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc.

by Lisa Fields

You need a physician to testify as an expert witness in an upcoming trial, but not all doctors charge the same hourly rate. Will you know enough about your expert's specialized field to be able to negotiate her fee?

Round Table Group (RTG) can help. It has determined which specialists are most often requested and what they charge per hour, on average, based on RTG's client-expert pairings from 2006 and 2007.

"Doctors rank number one as far as what our expert witnesses charge," says Round Table Group's Nick Zafran, who has been researching and compiling the company's billing data.

"The average hourly rate for doctors is $551. Practically all of the doctors are specialists, since they're needed more often than general practicing doctors."

For billing insights, review the following details about the Round Table Group's top-five most requested physician-specialist categories:

1. Surgeons

These doctors are requested most frequently by RTG clients. Surgeons are almost exclusively sought after as expert witnesses for medical malpractice cases, and they average $625 per hour, according to Round Table Group data.

"This figure includes some brain surgeons and heart surgeons," says Zafran, "which may explain the high rate."

2. Cardiologists

Medical malpractice is also the top reason why heart doctors are sought after by attorneys, according to Zafran. Cardiologists average $560 per hour, although their rates (as well as all physicians' rates) fluctuate by geographic region.

3. Oncologists

Some--but not all--cases for which oncologists are requested are medical malpractice lawsuits. Oncologists average $580 per hour, according to Round Table Group data.

4. Psychiatrists

Per Zafran, most psychiatrists who are matched with clients through Round Table Group are asked to determine whether individuals are considered mentally stable. Psychiatrists average $423 per hour, according to RTG.

5. Infectious disease experts

These experts are sought after less frequently than the above-mentioned specialists, says Zafran, but the infectious-disease specialty sits squarely in the top five.

There is no clear litigation category for which these doctors are requested; cases seem to vary. Infectious disease experts average $508 per hour, according to Round Table Group data.

It is important to note that expert services firms commonly present a rate higher than what an expert demands. The amount varies but is typically around $100. In exchange for this, expert services firms locate and vet hard-to-find experts in all specialties. These experts, at the top of their field, are often not listed on any free "expert" databases.

Hourly rate increases with uncommon knowledge

Physicians' hourly rates tend to rise within specialties, says Zafran. Uncommon knowledge tends to command higher rates.

"The more specific a case is, the more expert witnesses can charge," explains Zafran. "If an attorney needs someone to be familiar with a specific rare medical procedure, the expert will charge more than a generalist, since fewer people would have such expertise. This is true even among the specialist categories."

Other reasons why physicians may charge higher-than-average rates: They're well-seasoned expert witnesses with extensive courtroom experience who feel they're worth more to attorneys--or they have extremely busy hospital or academic schedules and feel it isn't worth their while to consult for less money.

 "But everything in this business is negotiable," says Zafran, "so look through experts' CVs and choose someone you want. Round Table Group is willing to work with you on fees."

The series continues

In our next issue, we'll focus on billing rates for expert witnesses who testify about patents. Of note:

• The number-one expert-witness request that Round Table Group fields is for patents cases.
• Most frequently, patent attorneys seek electrical engineers or computer scientists with academic posts to determine whether products infringe on patents.
• Attorneys also seek expert witnesses who can determine whether their clients' projects are legitimate, especially those who can evaluate electronic devices or source code for computer software.

by Lisa Fields

It's critical that expert witnesses understand the rules about the discoverability of expert materials and spoliation, says Paul Veith, a partner at Sidley Austin LLP, who recently gave a presentation on the subject at a Law Seminars International event in Chicago.

Why?  Document spoliation could result in preclusion of testimony--or worse.

Ways in which spoliation could occur

Dr. Fred Cohen, Research Professor at the University of New Haven in forensic sciences, a member of Round Table Group's network of 95,000 experts, and founder of Fred Cohen & Associates, says, "The problem of spoliation starts with the fact that it's latent evidence.  One way or the other, the only thing the jury is going to see is a representation, which may not fairly represent the actual evidence."

Digital forensic evidence has many chances for spoliation along the way.  Here's an example: Traffic on a network exists for only a very brief time period, Cohen says.  That data could be forged, encrypted, or not collected in a timely manner.  Various audit trails might exist, so many separate logs might need to be accessed to collect all of the needed information.  "If you don't act to retain audit trails, all you have is the file on the computer, which might have been broken into or otherwise altered."  The longer the data sits, the more opportunity there is for spoliation.

The expert witness' role in spoliation prevention

Some documents created by expert witnesses (including drafts of their reports) must be furnished to the opposing legal team unless both sides decide otherwise. If such discoverable documents are destroyed by your expert witnesses, whether intentionally or unintentionally, there may be consequences, Veith says.

"If there is spoliation found, you could potentially face preclusion of the expert's testimony in whole or in part," he says. "You might face an order compelling you to attempt to forensically recover any deleted materials on computers. Sometimes a judge will instruct a jury that the deletion of a document should lead them to infer something unfavorable about the deleting party. And in some cases, spoliation can lead to the dismissal of a claim or defense."

To avoid problems, consider Veith's advice on spoliation when you begin working with a new expert witness:

1.  Make an agreement.

"One common practice is coming to an agreement with the opposite party governing the discoverability of expert materials," says Veith.

"You make clear the dos and don'ts about what will be discoverable."

You may decide, for example, that rough drafts of expert reports won't exchange hands. "Attorneys may say, 'We know we'll each help our experts get their reports into shape because engineers don't write like attorneys,'" says Veith. "An agreement says: 'We'll do our work and you do yours without worrying about the paper trail.'"

Agreements can also dictate that written communications between experts and attorneys  won't be produced by either side.

2. Limit your experts' writing.

It's not always possible to agree to alter the basic rule of discoverability, and sometimes an agreement doesn't make sense, says Veith.

In the absence of an agreement, "you have to be very careful that no documents are created that you wouldn't want the other side to see," he says.

You'll need to carefully explain to your expert witnesses what types of documents are off-limits.

3. Limit your own writing.

If drafts of reports and written communications with experts will be discoverable, be sure your written comments don't reveal your impressions of the case at hand.

"The attorney work-product doctrine generally protects the mental impressions of attorneys from disclosure," explains Veith, "but when an attorney contributes something to an expert's work that is fully discoverable, the attorney's thought then becomes discoverable. That's why attorneys like to enter agreements; they'd rather not expose their input to the light of day."

4. Spell out the rules to everyone involved.

Don't just tell your expert witness your expectations about discoverable expert materials; make sure he passes along the message to everyone who works in his office.

"Stress that the junior people on his team and your team are reading from the same hymnal," says Veith. "You might have a perfect understanding with the lead expert, but if your associate and his associate start communicating in a different way than had been agreed upon, it's all for naught."

Many of Round Table Group's expert witnesses have experience working with attorneys, so they should be familiar with the rules of discoverability. But even a seasoned expert can benefit from hearing your expectations about spoliation particular to your case.

Digital Forensics Experts

Cohen, a Round Table Group expert witness, stresses that you should seek digital forensics experts who meet the same high standards you would expect from a medical expert witness, for example.  "You should look for someone with a great deal of specialized experience.  The top tier should have a PhD, 30 years of experience, work with education and technology--but there are very few experts who meet those qualifications."

Round Table Group can help litigators seek out competent experts who have proper training and background in this arena.

Dear Friend,

Without a doubt, you want the best possible expert witness on your case. If money wasn't a controlling factor, you'd choose an expert with the best credentials and the most courtroom experience. But, there's strategy behind finding the best expert to fit the needs of the case--and your client's budget.

That's why we're presenting a new series on expert billing rates, to demystify the process and help you get the right expert at the right price. Our first article concentrates on the seven factors that affect expert witness billing rates. Next issue, we'll take a look at rates for the medical field.

We also examine some of your war stories in which prominent lawyers share their experiences with expert witnesses. From the initial search to the stand, you can see how these lawyers have adjusted their expert witness strategy to accommodate those lessons. Read Expert Witness Washouts for details.

As always, our mission is to provide readers with an edge in locating, preparing and utilizing experts. Please let me know if you have ideas for upcoming themes or articles by emailing me.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc.

        

7 Factors That Affect Expert Witness Billing Rates: Get the Best Deal

With so many variables, it can be difficult to accurately assess an expert's worth. Accordingly, The Expert Advisor presents a series on billing rates. This first installment addresses the determining agents in experts' billing rates. If you understand the factors involved in billing, like courtroom experience and geography, you'll know what kind of fees to expect. Future installations will delve deeper into specific industry billing rates.

Discover how experts set their rates.

 
Expert Witness Washouts: 3 Lessons Learned

Two lawyers share their stories of expert testimony gone awry, and speculate on lessons learned. Lesson One: A free expert could cost you. Shell Bleiweiss talks about an expert who agreed to testify as a favor--but didn't say the same things during the trial as he did during the informal interview with opposing counsel.

Avoid the pitfalls.