For Expert Witnesses: Building Your Business

Recent Expert Witness News & Links

Sat, 21 Jan 2012 21:15:24 +0000

Westlaw Round Table Group continues a monthly review of notable recent expert witness news & links from around the internet...

Pursuing truth in puzzles of evidence
1/18/2012, Washington Times
An Interview with Dr. Herbert Leon MacDonell forensic scientist.

Florida expert witness standards bill advances through House
1/1/12, News Service of Florida
Bill HB 243 seeks to replace a decades-old stanrd that judges use in determining whether to allow expert testimony. Supporters say the bill would make Florida's standards similar to what are considered in federal courts and help prevent expert testimony that is sometimes described as "junk science."

District Court Holds "It is an Abuse of Discretion to Permit a Witness to Testify as an Expert on the Issue of Non-infringement or Invalidity Unless that Witness is Qualified as an Expert in the Pertinent Art"
1/5/12, patentlawyerblog.com
Two potential experts in Degelman Industries Ltd. v. Pro-Tech Welding and Fabrication, Inc. case were precluded because neither was an expert in the particular subject matter of the patents.

What Should an Expert Witness Look for in an Attorney or Law Firm
1/2/12, duiexpertwitness.wordpress.com
5 things about the person who hires you to be an expert which can make the difference between a healthy relationship and a disaster...

Attorney Customer Service Survey Contest Rules

Wed, 11 Jan 2012 15:25:02 +0000

These are the rules for the random drawing in 2/15/12. Entry must be via the survey invitation sent on 1/26/12

1. No purchase necessary.

2. Contest starts on 1/26/12 and ends no later than 2/15/12.

3. Thomson Reuters Expert Witness Services reserves the right to discontinue the contest at any time.

4. Void where prohibited by law.

5. Participants must be residents of the United Sates of America.

6. Contest open to those 18 and older.

7. Participants are bound by the Official Rules.

8. Entry is limited to recipients of our survey

9. One entry per person and each entry must be made separately.

10. All prizes will be awarded by TREWS as independent judges and the independent judges' decisions will be final.

11. Employees of Thomson Reuters and affiliates and family members are not eligible to win.

12. "Odds of winning will be determined by the total number of entries received."

13. The prize will be re-awarded if original prize winners forfeits.

14. Prizes are non-transferable and no substitutions or cash redemption will be made.

15. For a winners list, please check our blog posting dated 2/15/12, titled "Attorney Customer Service Survey Contest Winner

16. The estimated value of this prize is approximately 600.00.

17. Entries are the property of TREWS and none will be returned, including copyrighted material that shall become the property of TREWS.

18. Only one prize per person.

19. Not responsible for lost, late, illegible, misdirected, mutilated, incomplete or postage due mail or electronic or computer delays or malfunctions.

20. Winners may be required to sign an affidavit of eligibility and release from liability within 10 days of notification of any award or upon redemption of prize. Entry in the contest constitutes permission to use winner's name and likeness for publicity purposes, without further compensation, where permitted.

Industry Spotlight: Toby Edwards on 2012 Trends

Tue, 06 Dec 2011 14:58:21 +0000

Throughout 2011 I have been working with experts one-on-one, in small groups, and via large scale surveys to better understand how the expert witness industry has been evolving, and how Westlaw Round Table Group can best respond and adapt to these shifting issues. Several key trends are abundantly clear.

1st: With so many new experts entering the expert witness market, there is a growing need to provide them training in the fundamental ideas and concepts of being a witness, the specialized vocabulary of some litigation areas, and such skills as how to write a good report and how to prepare for a deposition or court room testimony. Expert education is a growing field, only barely acknowledged in the litigation industry. Additionally, we have been responding to a growing call from new and seasoned expert witnesses for assistance in starting, building and managing the expert witness business.

2nd: Shifting pressures from our attorneys' clients. As they are getting more involved in aspects of the expert witness search, retention, and billing activities, our attorney's clients are making a significant impact on the business of expert witness referral and placement. Clearly, adding another 'voice' to the process can complicate matters, especially when they are party to a retention agreement. This can require deft and attentive coordination to ensure everything runs smoothly.

3rd: Consolidation within the industry. Expert witness firms are merging to better address more of the expert witness industry's challenges. Thomson Reuters' acquisition of WRTG in 2010, and our recent acquisition of Silicon Valley Expert Witness Group in August, 2011, are indications. And we are also seeing more strategic partnerships, as smaller firms recognize that our industry is changing, and they pool resources to expand their appeal, and geographic reach. A national presence is rapidly becoming the norm for expert referral businesses. This has some positive implications for experts, as 2012 will see a movement towards expert witness referral firms expanding their traditional offerings into new fields, such as education, business development, marketing, and professional development.

In 2012 (and beyond) look to WRTG to be at the forefront of our industry, setting the trends in expert witness referral, education, and professional development.

Working With Attorneys: 7 Things Every Expert Should Always Do, Right Away!

Wed, 16 Nov 2011 14:19:11 +0000

We want to make sure you have a strong working relationship with your attorney client. The single most important thing you can do to is to communicate clearly and frequently. Below is our suggested checklist to help our experts and attorneys have a strong, productive working relationship.

1: Have a phone conversation with the client about the attorney-client privilege and discovery. Make sure you understand how the client wants you to send communications that could be included in a discovery request from the opposing side. Some attorneys do not want sensitive information to be emailed.

2: Check in with the client at your earliest convenience before starting work so that you understand the client's expectations regarding timelines, deadlines and workload. Clarify the scope of work if you have any questions. Spending your time performing work that the client does not need may end up as an invoice dispute later on.

3: Routinely follow up with client as the work progresses and let them know before beginning any large blocks of hourly billing and be willing to provide hourly estimates to the extent possible. Thomson Reuters Expert Witness Services has dedicated professionals to assist you with budget management if your engagement is through one of our referral services.

4: Notify the client ahead of time about any large out-of-pocket expenses you expect to incur (travel, testing costs, etc.) and consider asking the client to pay these expenses directly during the contract negotiation period. Remember that most clients will not pay for your time spent "getting up to speed" on a subject or for items considered overhead (e.g., secretary services).

5: Update clients as often as necessary about the conclusions you reach. Remember that the client may not want you to email this information.

6: Let clients know of any expected or unexpected unavailability as soon as possible and coordinate your schedules.

7: If your referral is through Thomson Reuters Expert Witness Services, please contact your Case Coordinator with any questions about invoices.

Intellectual Property Vocabulary

Wed, 16 Nov 2011 13:39:39 +0000

Many of our experts (and our attorneys!) have noted that witnesses new to intellectual property cases are often lost in a jungle of jargon and terminology alien to them. Aside from the communication challenges this causes between an expert witness and an attorney, valuable time is also spent by attorneys teaching expert witnesses what the various intellectual property litigation terms mean.

We asked our intellectual property experts and attorneys to send us key terminology they commonly used in intellectual property cases, with which they thought an expert witness, new to intellectual property litigation, should be familiar.

We'd love to add more vocabulary for this list. Send them to toby.edwards@thomsonreuters.com.

Claim Element: The scope of a patent is defined by its claims. The claim lists all the essential elements of the invention. Only if a product has all of these elements does it infringe a patent. The rights conferred by a patent need to be defined clearly, so as to put others on notice regarding what is and is not covered by the patent. To this end, every patent contains one or more "claims," which provide a definition of what is covered by the patent. Only things that meet the definitions of the claims infringe the patent.

Claim Construction: The outcome of an attempt at patent enforcement commonly hinges on claim construction, which is the court's accepted definition of specific terms used in patent claims. Claim construction disputes arise over both the definition of technical terms and semantic interpretation. Patent litigants often spend a lot of money on claim construction as it usually determines two root issues of every patent case: whether the plaintiff has a valid claim; and whether the defendant infringed the patent. A pivotal ruling regarding claim construction came from the Supreme Court in Markman v. Westview Instruments (1996) where the court ruled that the key question of claim construction was one of law within the sole province of the judge, not a jury.

Claim Chart: In a patent infringement lawsuit, the inventor must prepare a patent claim chart that describes how the accused product infringes the patent. Infringement claim charts, which are often referred to as "claim charts," typically show the language of a patent claim on the left side and a description of the infringing activity on the right side. Any given patent claim is only infringed if all of the characterizations on the left side are matched by (accurate) information on the right side.

Dependent vs Independent Claim: There are two basic types of claims:
•    independent claims: claims that stand on their own; and
•    dependent claims: claims which depend on a single claim or on several claims and generally express particular embodiments as fall-back positions.

Independent Claims are typically written with very broad terms, to avoid permitting competitors to circumvent the claim by altering some aspect of the basic design. A dependent claim further clarifies the independent or parent claim. In practice, dependent claims are often used to hone in on the inventor's preferred embodiment of the invention (e.g., the actual product design that the inventor intends to use.) Essentially, an independent claim broadly describes the invention, while dependent claim #1 describes the invention in a narrower aspect that more specifically describes the preferred embodiment, dependent claim #2 is narrower still, etc.

Prior Art (also known as state of the art): Prior art constitutes all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality. If an invention has been described in prior art, a patent on that invention is not valid. Information kept secret (for example, a trade secret) is usually not prior art, provided that employees and others with access to the information are under a non-disclosure obligation. Prior art is generally expected to provide a description sufficient to inform an average worker in the field of some subject matter falling within the scope of the claim. Prior art must be available in some way to the public, and in many countries, the information needs to be recorded in a fixed form. Prior art generally does not include unpublished work or mere conversations.

Priority Date: (also known as a right of priority) This is a time-limited right, triggered by the first filing of an application for a patent or a trademark. The priority right allows the claimant to file a subsequent application in another country for the same invention, design, or trademark effective as of the date of filing the first application. When filing the subsequent application, the applicant must "claim the priority" of the first application in order to make use of the right of priority. The right of priority belongs to the applicant or his successor in title.

The Doctrine of Equivalents: is a legal rule that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention. The Second Circuit Court of Appeals described its purpose as being to "prevent an infringer from stealing the benefit of the invention". Royal Typewriter Co. v. Remington Rand, Inc., 168 F.2d 691, 692 (2d Cir. 1948). See non-literal infringement.

Invalidity: An important limitation on the ability of a patent owner to successfully assert the patent in civil litigation is the accused infringer's right to challenge the validity of that patent. In order to obtain a patent, the invention must be useful, novel and non-obvious. Useful means that the invention is capable of serving a useful purpose. Novelty means that the invention was not fully disclosed in a single prior-art reference. The obviousness standard refers to the invention not being obvious to one skilled in the art to which the invention pertains on the basis of a single reference or a combination of references. If a patent is not useful, novel or non-obvious, it is invalid. In the United States, a patent is presumed to be valid. However, this presumption is rebuttable. One of the principal ways of overcoming the presumption of validity is to find prior art which is more relevant to patentability of the claims. Such prior art may, for example, take the form of prior patents or publications. Another approach to invalidating a patent is to prove that the invention was in public use or on sale in the U.S. more than a year prior to the date of the application. If one can prove that the invention was known or used by others in the U.S. or patented or described in a publication in any country before the invention thereof by the applicant, the patent is invalid. Furthermore, patent law requires that the specification disclose the invention in such a manner as to enable any person skilled in the art to which it pertains to make and use the same. It further requires that the disclosure reveal the "best mode" contemplated by the inventor of carrying out the invention. Failure to comply with either of these disclosure requirements can result in the patent being invalid.

As an initial step in evaluating the validity, it is frequently desirable to obtain a copy of the United States Patent and Trademark Office's "file wrapper," which contains a copy of the application and the communications between the applicant and the Patent and Trademark Office resulting in issuance of the patent. A review of the file wrapper frequently enables one to determine what rejections of claims were made by the patent office examiner, on what grounds those rejections were made, and what prior art was made of record. This generally provides some insight into what the examiner felt was patentable and what concessions or representations were made by the applicant.

Enablement: Enablement refers to the requirement that a patent application must disclose a claimed invention in sufficient detail for a person skilled in the art to carry out or create that claimed invention. The disclosure requirement lies at the heart of patent law. An inventor is granted a monopoly for a specified period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention. If a patent fails to contain such information, the patent is unenforceable or can be revoked.

Obviousness: (or non-obviousness) One of the main requirements of patentability is that the invention being patented is not obvious, meaning that a person having ordinary skill in the art would not know how to solve the problem at which the invention is directed by using exactly the same mechanism. The Graham Factors, as set forth by the United States Supreme Court, help determine if the claimed invention is non-obvious. The Graham factors include:
1.    the scope and content of the prior art;
2.    the level of ordinary skill in the art;
3.    the differences between the claimed invention and the prior art; and
4.    objective evidence of non-obviousness.
In addition, the court outlined examples of factors that show "objective evidence of non-obviousness:"
1.    commercial success;
2.    long-felt but unsolved needs; and
3.    failure of others.
Graham et al. v. John Deere Co. of Kansas City et al., 383 U.S. 1 (1966).

Markman Hearing: A Markman hearing is a pretrial hearing in a patent infringement case in which a federal District Court judge examines evidence from all parties on the appropriate meanings of relevant key words used in a patent claim. The U.S. Supreme Court has held that the language of a patent is a matter of law for a judge to decide, not a matter of fact for a jury. A Markman hearing is sometimes referred to as a "Claim Construction Hearing." The evidence considered in a Markman hearing falls into two categories, intrinsic and extrinsic. Intrinsic evidence consists of the patent documentation and any prosecution history of the patent. Extrinsic evidence is testimony, expert opinion, or other unwritten sources. Markman hearings are important, since the court determines patent infringement cases by the interpretation of claims. A Markman hearing may encourage settlement, since the judge's claim construction finding can indicate a likely outcome for the patent infringement case as a whole. Markman hearings are before a judge, and generally take place before trial, but may also be held after the trial begins before jury selection.

Means-Plus-Function: A means-plus-function claim is a claim including a technical feature expressed in functional terms. For example: "means for converting a digital electric signal into an analog electric signal." A variant known as a "step-plus-function" claim style may be used to describe the steps of a method invention.
Prosecution history (or prosecution history estoppel) - Prosecution history estoppel is a term used in patent law to indicate that a person who has filed a patent application, and later makes narrowing amendments to the application to accommodate the patent law, may be precluded from invoking the doctrine of equivalents to broaden the scope of their claims to cover subject matter addressed by the amendments. With regards to prosecution history estoppel, the U.S. Supreme Court stated that it preferred a presumptive bar approach to the doctrine of equivalents. Under this approach, when a claim is amended, "the inventor is deemed to concede that the patent does not extend as far as the original claim" and the patentee has the burden of showing that the amendment does not surrender the particular equivalent. To succeed, then, the patentee must establish that:
1.    the equivalent was unforeseeable at the time the claim was drafted;
2.    the amendment did not surrender the particular equivalent in question; or
3.    there was some reason why the patentee could not have recited the equivalent in the claim.
Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U. S. 722 (2002).

Method Claim: A method claim (sometimes referred to as a "process claim") is a process, or series of steps or acts, for performing a function or accomplishing a result. Under a method claim, a patent is only infringed when a person or entity practices all claimed steps. Neither a physical device, such as a product that can be used to practice the method, nor instructions for practicing the method are infringing until they are used by a single person to perform all the steps together.

Apparatus Claim: An apparatus claim defines the invention in terms of its components or in terms of what the invention is as opposed to what it does. An apparatus claim describes a device that usually has active components. An apparatus claim may also be defined with means-plus-function elements. An apparatus claim differs from a method claim, because an apparatus claim generally describes the components of the device or system in terms of physical or structural characteristics. An apparatus claim is infringed by the actual device or system.

Field of Endeavor: For an invention to be eligible for patent protection, it must fall within a permitted field of endeavor. Historically, patents could only be obtained on technical inventions (physical arrangements, devices and apparatuses) while non-tangible or non-concrete inventions (for example, those related to games, medical treatment, algorithms, computer software and methods of doing business) were not patentable. This is no longer the case, especially in the United States. U.S. patents can now be obtained for anything made by man, provided that it produces a useful, concrete and tangible result, rather than just an abstract idea. As a result, computer programs and methods of doing business are now patentable. Other countries, most notably the European countries that are members to the European Patent Convention, are rather hesitant to allow patents in these fields.
Defining the "field of the endeavor" is not always an easy task. Simply being part of the same industry does not render an invention part of the same field. In order to provide guidance to the inventing community, the Federal Circuit has held that in considering whether a reference is from the same field of endeavor, one may look to explanations of the invention's subject matter in the patent application, as well as "embodiments, function and structure of the claimed invention."

Relevant Field of Art (or Field of Invention): A very broad description of the area of technology/industry into which the patent falls. This statement may include a paraphrasing of the applicable U.S. patent classification definitions. The statement should be directed to the subject matter of the claimed invention.

Analogous Art: For an application to be considered obvious, it must be "analogous" to prior art (a previous invention). A prior art reference is analogous only if it addresses the entire problem solved by the patent at issue. Two separate tests define the scope of analogous citable prior art:
1) whether the art is from the same field of endeavor, regardless of the problem addressed; and
2) if the reference is not within the same field of endeavor, whether the reference is still reasonably pertinent to the particular problem with which the inventor is involved.
Under the second test, a reference may be "reasonably pertinent" if it "logically would have commended itself to an inventor's attention in considering his problem." In Re Klein. In other words, if it has the same purpose as the claimed invention and relates to the same problem, it would be considered analogous art
.
Anticipation: Anticipation occurs when a prior art reference or event discloses all the features of a claim and enables one of ordinary skill in the art to make and use the claimed invention. In this situation, the claim is then said to lack novelty. The Federal Circuit Court defined anticipation as "a patent defense that must be based on a single prior art reference. For a claim to be anticipated, each claim element must be disclosed, either expressly or inherently, in a single prior art reference, and the claimed arrangement or combination of those elements must also be disclosed, either expressly or inherently, in that same prior art reference." 35 USC §102. Anticipation requires only one step to prove if a single prior art reference is available. If a single document teaches all elements of a patent, in the same arrangement, the single prior art reference can invalidate the target patent.

PHOSITA - Person Having Ordinary Skill In The Art (at the time of the invention) (also referred to as the person of ordinary skill in the art, the skilled addressee, person skilled in the art or simply the skilled person): The PHOSITA is a legal fiction unique to patent law, similar in concept to the fictional "reasonable person" used in tort and negligence actions. A PHOSITA is a person considered to have the normal skills and knowledge in a particular technical field, without being a genius. He or she mainly serves as a reference for determining, or at least evaluating, whether an invention is or is not non-obvious. If it would have been obvious for this fictional person to come up with the invention while starting from the prior art, then the particular invention is considered not patentable.
Additionally, the person skilled in the art is also used as a reference to determine whether an invention is sufficiently disclosed in the description of the patent or patent application (sufficiency of disclosure is a fundamental requirement in most patent laws), or in order to determine whether two technical means are equivalents when evaluating infringement.

Equivalent: If an invention (or prior art) performs the function specified in a claim, is not excluded by any explicit definition provided in the specification for an equivalent, and is an equivalent of the means- plus-function limitation, the prior art is an equivalent. Factors that will support a conclusion that the prior art is an equivalent are:
(A)    the prior art performs the identical function specified in the claim in substantially the same way, and produces substantially the same results as the corresponding element disclosed in the specification;
(B)    a person of ordinary skill in the art would have recognized the interchangeability of the prior art element and the corresponding element disclosed in the specification at issue;
(C)    there are insubstantial differences between the prior art element and the corresponding element disclosed in the specification;
(D)    the prior art element is a structural equivalent of the corresponding element disclosed in the specification. In other words, the prior art element performs the function specified in the claim in substantially the same manner as the function is performed by the corresponding element described in the specification.
A showing of at least one of the above-noted factors by the USPTO Examiner should be sufficient to support a conclusion that the prior art element is an equivalent.

Equivalent Structure: Equivalent structure has a very specific meaning in a means-plus-function setting. In order to identify an equivalent structure, the claimed function of a means-plus-function element and, the structure described in the patent specification that performs the function must be determined. Once this threshold determination is complete, only then can an equivalent structure be identified in the art relative to that of the patent specification. The factors discussed above in the discussion of "equivalent" set forth the required analysis for determining equivalence.

Literal Infringement: Literal infringement occurs when every element in the patent claim (each limitation) is found in the allegedly infringing device or process. If a claimed element is missing, then literal infringement is avoided. A "literal" construction of such a limitation may encompass only the disclosed structure and its equivalents. In the case of a claim with a "means plus function" element, the element is met literally when (i) an accused device performs the same function recited in the element, and (ii) the accused device embodies the corresponding structure, material, or acts described by the specification or an equivalent thereof.

Non-literal Infringement (also known as the Doctrine of Equivalents): Non-literal infringement (also known as the Doctrine of Equivalents) exists where there are no substantial differences between the infringing product and at least one claim in the original patent. The non-literal infringement requires that there be an impact on every limitation of at least one claim in the given patent, although they may not be precise and literally the same. If even one element within the patent claim did not have an element of being infringed, it would not qualify for the Doctrine of Equivalents. In other words, even if there is no literal infringement, a claim may be infringed under the doctrine of equivalents if some other element of the accused device or process performs substantially the same function, in substantially the same way, to achieve substantially the same result.

Abstraction-Filtration-Comparison Test (AFC): A method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied. The AFC test was developed by the United States Court of Appeals for the Second Circuit in 1992 in the case Computer Associates Int. Inc. v. Altai Inc. The AFC test is a three-step process for determining substantial similarity of the non-literal elements of a computer program. First, the court must identify the increasing levels of abstraction of the program. The purpose of the abstraction step is to identify which aspects of the program constitute its expression and which are the ideas. By what is commonly referred to as the idea/expression dichotomy, copyright law protects an author's expression, but not the idea behind that expression. In a computer program, the lowest level of abstraction, the concrete code of the program, is clearly expression, while the highest level of abstraction, the general function of the program, might be better classified as the idea behind the program. Second, at each level of abstraction, material that is not protectable by copyright is identified and filtered out from further examination. Third, the defendant's program is compared to the plaintiff's, looking only at the copyright-protected material as identified in the previous two steps. It is then determined whether the plaintiff's work was copied.

Inventor: The person or persons who contribute to the claims of a patentable invention. An inventor has "intellectual domination" over the inventive process, and is not merely one who assists in its reduction to practice. The courts explain that "[t]he threshold question" of inventorship is "who conceived the invention." "Joint inventors" or "co-inventors" exist when a patentable invention is the result of inventive work of more than one inventor. Joint inventors exist even where one inventor contributed a majority of the work. Absent a contract or license, the inventors are individuals who own the rights in an issued patent. Status as an inventor dramatically alters parties' ability to capitalize on the invention. In the United States, a patent application must be filed in the name of the inventor(s). Intentionally failing to name, or incorrectly identifying inventors, can result in a patent being held invalid.

Conception: "the complete performance of the mental part of the inventive act", and "the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is thereafter to be applied in practice.." An idea is usually not "definite and permanent" or "complete" where changes result from experimentation. In this case, other individuals who contribute to the formation of the "definite and permanent" idea are co-inventors.
The naming of inventors is very important for the validity of the patent. Ordinarily, the courts presume the named inventors are the inventors so long as there is no disagreement.Inventorship is a much more precise legal term. It is, obviously, the quality or state of being an inventor, but what differentiates an inventor from an author? The American Heritage Dictionary defines an "inventor" as someone who has produced or contrived (something previously unknown) by the use of ingenuity or imagination. The United States Patent and Trademark Office (USPTO) defines an inventor as someone "who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor...."

Author: An author is someone who contributes to the final product. To determine authorship on a paper or article, the finished product and all who contributed to the creation of the article or paper should be examined. Thus, authorship will include the researchers who conducted the subject study, of course. It will also include anyone who contributed algorithms, equations, or figures used during the research. The term author is not synonymous with inventor. An inventor is someone who participates in the inventive step. An author might imagine an outcome or a solution, while an inventor shows the steps and mechanisms necessary to get there.

Conception: Conception is "the complete performance of the mental part of the inventive act" and it is "the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is thereafter to be applied in practice[.]" Townsend v. Smith, 36 F.2d 292, 295 (CCPA 1930). "[C]onception is established when the invention is made sufficiently clear to enable one skilled in the art to reduce it to practice without the exercise of extensive experimentation or the exercise of inventive skill." Hiatt v. Ziegler, 179 USPQ 757, 763 (Bd. Pat. Inter. 1973). Conception has also been defined as a disclosure of an invention which enables one skilled in the art to reduce the invention to a practical form without "exercise of the inventive faculty."

Reduction to Practice: The embodiment of the concept of an invention. The date of this embodiment is critical to the determination of priority between inventors in an infringement case. There are two ways that an invention may be reduced to practice:

(1)    By producing a physical embodiment of the invention, which is referred to as actual reduction to practice. For example:
•    for an item of manufacture, provide a prototype or model of the invention;
•    for a method, perform the method and confirm the results;
•    for a composition of matter, synthesize or otherwise produce the composition.

(2)    By filing a patent application, which is referred to as constructive reduction to practice.

Actual Reduction to Practice: requires that the claimed invention work for its intended purpose. The filing of a patent application serves as conception and constructive reduction to practice of the subject matter described in the application. Thus the inventor need not provide evidence of either conception or actual reduction to practice when relying on the content of the patent application. A reduction to practice can be done by another on behalf of the inventor.

Preponderance of the Evidence: The standard of proof required to establish invalidity of patents. Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.

Clear and Convincing Evidence: In patent infringement cases, juries must find that "clear and convincing" evidence exists in order to invalidate a patent. This is an unusually high standard for a civil case, but is a lesser requirement than proof beyond a reasonable doubt applicable in criminal cases. Clear and convincing evidence is a higher level of burden of persuasion than a preponderance of the evidence. Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions governed by the preponderance of the Evidence standard.

Ordinary Meaning: The ordinary (or customary) meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention (i.e., as of the effective filing date of the patent application). Unless an express intent to impart a novel meaning to the claim terms exists, the words are presumed to take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art.

Definiteness: Patent law states that in order for a claim to be valid it must: (1) set forth the subject matter the applicant regards as his inventions; and (2) particularly point out and distinctly define the metes and bounds of the subject matter that will be protected by the patent. The Supreme Court's standard for interpreting the definiteness requirements is met only when the claims clearly distinguish what is claimed from what went before in the art and circumscribe what is foreclosed from future enterprise. This standard ensures distinction between prior art and the claim itself.

Abstract: The abstract is part of the patent application. The purpose of the abstract is to enable the United States Patent and Trademark Office and the public generally to determine quickly the nature and gist of the technical disclosure. A brief abstract of the technical disclosure in the specification must commence on a separate sheet, preferably following the claims, under the heading "Abstract" or "Abstract of the Disclosure." The sheet or sheets presenting the abstract may not include other parts of the application or other material. The abstract in an application may not exceed 150 words in length.

Specification: The description, drawings and claims of a patent application. The specification must include a written description of the invention or discovery and of the manner and process of making and using the same, and is required to be in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which the invention or discovery pertains, or with which it is most nearly connected, to make and use the same. The specification must set forth the precise invention for which a patent is solicited, in such manner as to distinguish it from other inventions and from prior art. It must describe completely a specific embodiment of the process, machine, manufacture, composition of matter or improvement invented, and must explain the mode of operation or principle whenever applicable. Additionally, the inventor must set forth the best mode contemplated for carrying out the invention.

Drawing: A figure filed as part of a patent application to describe and explain an invention. At some point in the proceedings, the drawings must comply with the patent office requirements for formal drawings.

Claim: An inventor/applicant shall particularly point out and distinctly claim the subject matter which he or she regards as his or her invention. A claim is the definition of a monopoly right that an applicant is trying to obtain. This is an important part of the application, as it is the definition of that for which protection is granted.

Reexamination: The process where a third party or inventor can have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. To have a patent reexamined, an interested party must submit prior art that raises a "substantial new question of patentability." A request for a reexamination can be filed by anyone at anytime during the period of enforceability of a patent. To request a reexamination, one must submit a "request for reexamination," pay a substantial fee, and provide an explanation of the new reasons why the patent is invalid based on prior art. Copies of the prior art must be provided, and the party making the request has to let the owner of the patent know that a request has been filed. If the USPTO finds that the request does raise a substantial new question of patentability, the USPTO orders a reexamination. Inventors themselves may also file requests for reexamination. Such requests may be filed before the inventors sue another party for infringing the patent, to make sure that the patent is valid in light of any prior art they may have discovered since the issuance of the patent. The patent office itself may initiate "director initiated" reexaminations, for example, when there is reason to question the validity of the patent. Once a reexamination is ordered, a new examiner is assigned to the case, and the patent goes through another examination similar to the examination it received the first time around.

Trade Secret: Information kept secret by an organization or business entity for the purpose of maintaining a competitive advantage.

November 2011 Expert Witness News & Links

Mon, 07 Nov 2011 22:16:05 +0000

Westlaw Round Table Group continues a monthly review of notable recent expert witness news & links from around the internet...

Credit Reporting Expert Witness: Experience or Research... Which is Better?
11/10/11, creditexpertwitness.com

A credit expert witness ruminates about the criteria attorneys use to hire experts.

Serving as an Expert Witness an Eye Opener on Litigation
My Deposition as a Securities Expert Witness
Participating as an Expert Witness at a Securities Trial
11/8/11, Ernest Badway, Fox Rothchild

A series of blog postings from a lawyer & securities expert serving as an expert witness, including preparing for trial, being deposed, and testifying in court.

Once upon a time I was an expert witness...

11/7/11, Fire Wife Katie

Usually, we want folks to consider being an expert witness, but this is an interesting story about why it might not be right for you!

Expert Witness Testimony Not Limited to Expert Report Content
11/4/11, blogs.findlaw.com

Expert witness testimony is not limited to just the content of the expert report, says First Circuit Court of Appeals.

The Biggest Mistake by Expert Witnesses: They Use the Wrong Benchmarks to Calculate Damages
11/3/11, Marks Paneth & Shron

To estimate losses and lost enterprise value, expert witnesses make unjustified assumptions and often rely on financial valuation metrics that don't reflect business reality. The result: cases are lost and experts are excluded on Daubert Challenges.

"Experience"-based expertise may not be enough for a Medical expert witness
11/3/11, Westlaw Insider

Become An Expert in Expert Discovery

Fri, 14 Oct 2011 14:54:06 +0000

WRTG has previously posted about the changes to Rule 26 of the Federal Rules of Civil Procedure, which went into effect on December 1, 2010.   As a result of the amendments to Rule 26, full discovery of draft expert reports or broad disclosure of communications between attorneys and expert witnesses is no longer permitted. Instead, draft expert reports and communications between counsel and expert witnesses are now protected by the work-product doctrine. While protection afforded by the work-product doctrine is solid, it is not impenetrable. However, the work-product doctrine does not extend to communications pertaining to (1) compensation for the expert's study or testimony, (2) facts or data that the party's attorney provided to the expert and that the expert considered in forming the opinions to be expressed, and (3) assumptions that the party's attorney provided to the expert and that the expert relied on in forming the opinions to be expressed. The third exception alone is vague and could open the door to discovery of attorney-expert communications.

            As an expert, you should be aware of the discovery rules which affect your role as an expert witness in pending litigation. An excellent article about the parameters of expert discovery in light of the amendments to Rule 26 can be found here.
            The expert witness who understands his role and how to effectively navigate through discovery is a true asset to an attorney and everyone involved in the litigation process

The Most Important Expert Witness Cases of 2011

Thu, 13 Oct 2011 22:23:21 +0000

      As an expert, it is essential that you stay informed about current litigation trends which may affect your role as an expert witness. Following is a discussion of some notable cases from 2011, all of which have direct implications on expert witnesses or were greatly impacted by the contribution of expert witnesses.

1.         Sherwin-Williams Co. v. Gaines

            The Mississippi Supreme Court reversed a $7 million verdict in favor of the Plaintiff, who alleged her son had been poisoned by lead while living in a residence painted with product supplied by Sherwin-Williams. The jury found in favor of the Plaintiff, but Sherwin-Williams filed a Motion for Judgment Notwithstanding the Verdict, asking the court to enter a judgment in its favor despite the jury's verdict. In granting Sherwin-Williams' motion, the Mississippi Supreme Court concluded that Plaintiff's experts relied on speculation and contradicted themselves and each other. "This opinion was not based on some epidemiological study calculating the likelihood of elevated blood levels based on the levels of paint in the home. Neither was it based on Trellvion's medical records. The basis for [the experts'] causation testimony -- that Trellvion was ingesting and being poisoned by lead the entire time he lived in the house -- was mere speculation and inadmissible." Because Plaintiff relied on these experts to prove causation, the Court found there was insufficient proof of causation and reversed the jury's verdict.

2.         Guinn v. CRST Van Expedited, Inc., et al.

            A federal District Court judge in the Western District of Oklahoma allowed an adverse party to use the opposing party's expert witness at trial, reiterating that an expert witness does not belong to a party but is there to assist the Court and jury. The Plaintiff filed this wrongful death action asserting a products liability theory. Plaintiff initially retained an expert in the trucking industry and listed him as a testifying expert. The expert prepared and submitted his report and was deposed by the Defendant. Both parties filed pre-trial reports and listed the expert as a potential trial witness. Both parties later filed amended pre-trial reports; however, only the Defendant identified the expert as a potential trial witness in its amended report. In holding that the Defendant could use the expert's testimony in its own case, the Court noted that the Defendant could not retain a trucking industry expert without delaying the trial, and Plaintiff did not omit the expert until she filed the amended pretrial report. The Court ruled that the expert's testimony was to be presented by reading portions of his deposition at trial and prohibited any mention that Plaintiff initially retained him. The Court further allowed the Plaintiff to call the expert as a live witness to combat any possible prejudice.

3.         SEC v. Lisa C. Berry

The United States District Court for the Northern District of California slashed the hourly rates of two experts (an economist and an accountant), finding the fees to be unreasonably high. The underlying litigation had reached the expert discovery phase, and a disagreement arose regarding who would pay expert witness fees incurred at a deposition. In ruling that the SEC should pay the expert fees as the party seeking discovery, the Court took issue with the reasonableness of the fees. While the experts' education, training and experience were impressive, the Court found their rates were considerably higher than those of other comparable experts (including other experts involved in the same case), and, more importantly, were even higher than recent fees the same experts had previously charged. Specifically, the Court noted that one expert had served as an expert for the SEC less than ten years ago and was paid approximately $600 per hour, while the other expert testified on behalf of the SEC in 2007 and was paid approximately $500 per hour. The Court saw no justification for the significant increase in fees when the levels of expertise, education, and training were the same, as was the complexity of the cases. As a result, the Court reduced one expert's fee from $950 to $750 per hour and the other expert's fee from $1,600 to $800 per hour.

4.         Rosenfeld v. Oceania Cruises, Inc.

            The Eleventh Circuit reversed the ruling of a federal district court, which had prohibited the Plaintiff from presenting expert testimony, and remanded the case for a new trial. Plaintiff slipped and fell while on a ship and suffered injuries. She sued the operator of the ship and submitted the testimony of a floor-safety specialist expert. The district court precluded the expert's testimony, holding that Plaintiff "has not established that the proposed liability expert will provide helpful analysis to the Court in understanding a matter of scientific, technical or specialized expertise. Instead, the liability expert intends to testify that the floor where plaintiff fell is unreasonably safe for its intended use. Such conclusions are properly left for the Court or jury to decide." The case proceeded to trial, and the jury returned a verdict in favor of the Defendant. In overturning the district court, the Eleventh Circuit noted "it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence ... Quite the contrary, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Further, since the jury was not allowed to consider expert testimony about whether the slip resistance of the flooring posed a danger to passengers aboard the ship, it could not have found in Plaintiff's favor with regard to her main negligence theory. Accordingly, the district court's decision to exclude the expert's testimony was not harmless error, and the Plaintiff was entitled to a new trial.

5.         Amanda Knox

            If ever there was a case highlighting the importance of experts, the Amanda Knox case is it. Knox's murder conviction was almost entirely based on DNA evidence. Knox and her former boyfriend and co-Defendant denied their guilt and asked for an independent review of the DNA evidence. Too little DNA evidence remained for experts to retest, so independent experts were engaged to assess the accuracy of the original testing. These forensic experts were able to show that the DNA evidence used to convict Knox was unreliable and, quite probably, contaminated. Experts also showed that DNA testing fell below international standards, and the genetic profile of the victim was unreliable and could not be attributed with certainty. Additionally, international procedures for inspection were not followed. One exhibit, the bra clasp of the victim, was not even tested until 46 days after the crime "in a context that was highly suggestive of ambient contamination." Based on the findings of these experts, Knox and her co-Defendant are now free and back in the United States.

The Top Five Money Makers of 2011. . . Part I

Thu, 13 Oct 2011 02:26:19 +0000

There were many newsworthy cases this year in which experts were heavily involved. Large verdicts were returned in intellectual property, patent infringement and products liability cases. Part I of this article discusses five of this year's largest verdicts from a monetary perspective. Part II will round out the discussion with the top 10 verdicts of the year, at least so far.

1. Pacesetter, Inc. v. Nervicon Co. Ltd., April 22, 2011

A Los Angeles County jury concluded that a former employee of Pacesetter, Inc., a division of St. Jude Medical, Inc., stole the company's trade secrets relating to medical equipment such as pacemakers and defibrillators. The former employee used that information in his newly formed Chinese business, Nervicon. The jury ordered the former employee to pay $1.47 billion and Nervicon to pay $868 million for a whopping total of $2.3 billion. Interestingly, the final award was actually more than St. Jude initially sought. The jury felt that St. Jude's damages expert was too conservative in his estimation of damages.

2. E.I. du Pont de Nemours and Co. v. Kolon, September 14, 2011

Jurors in a federal court in the Eastern District of Virginia (Richmond) returned what is believed to be the largest verdict in an intellectual property case in Virginia, finding that Kolon wrongfully obtained DuPont's proprietary information regarding its production of Kevlar by hiring some of the company's former engineers and marketers. Forensics experts were heavily involved in this case, which culminated in a verdict in favor of Dupont for $919.9 million.

3. Asahi Kasei Pharma Corp. v. Actelion, Ltd., April 29, 2011

Experts in the field of economic damages played a large part in the $550 million dollar verdict returned by a California jury in favor of Asahi. Both Asahi and Actelion are pharmaceutical companies. Asahi developed a new drug, Fasudil, for the treatment of pulmonary arterial hypertension ("PAH"), and entered into a license agreement with a third party, CoTherix, for marketing of the drug. Asahi sued Actelion, alleging that Actelion purchased CoTherix, then induced CoTherix to breach its license agreement with Asahi in order to halt work on Fasudil and protect profits for Actelion's competing product, Tracleer, which, prior to Fasudil, was the only drug on the market to treat PAH. The court later granted Actelion's motion to offset some of the award and reduced the damages by $70.4 million.

4. Allison, et al. v. Exxon Mobil Corp., June 29, 2011

Plaintiffs were awarded $495 million against Exxon in this Maryland case. Plaintiffs, property owners in Jacksonville, Maryland, sued Exxon, asserting a negligence claim after Exxon leaked 26,000 gallons of gasoline leak into the drinking water aquifer. As a result of Exxon's negligence, Plaintiffs claim they have suffered a decrease in property values, emotional distress, and the need for medical monitoring for themselves and their children. Exxon admitted liability, but came out with guns blazing on the issue of damages, presenting the testimony of numerous experts. Plaintiffs' damages expert was convincing enough to secure a multi-million dollar judgment in their favor.

5. Saffran v. Johnson & Johnson, January 28, 2011

A doctor was awarded $482 million in this patent infringement suit from the Eastern District of Texas. Dr. Saffran claimed that he was issued a patent on a medical device that combined a drug and a polymer in order to help deliver medication directly to damaged heart tissue. Saffran claimed that Johnson & Johnson developed a stent that infringed upon his patent, causing him to suffer monetary losses. Saffran sought an injunction and damages in the form of a reasonable royalty to adequately compensate him for the alleged infringement. Both sides presented expert testimony on the royalty question, as well as an expert cardiologist, chemist, chemical engineer, cell biologist, and pharmacologist. In the end, the jury in this federal case agreed with Dr. Saffran and concluded that Johnson & Johnson had infringed on the patent.

The Impact of Wal-Mart Stores, Inc. v. Dukes on Expert Witness Testimony

Wed, 12 Oct 2011 02:52:53 +0000

Since its debut in June, 2011, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has become one of the most often cited Supreme Court decisions in federal courts. The Dukes decision is singularly responsible for the demise of numerous class action cases and has even led to the decertification of classes in at least two different federal courts. More importantly, at least one federal court has applied the Dukes reasoning in a non-workplace class action case. In the Dukes opinion, Justice Scalia, in his characteristic fashion, took direct aim at the Plaintiffs' expert, and, in fact, concluded that the Court could "safely disregard" anything the expert had to say.

To date, Dukes is the largest civil rights class action suit in U.S. history. The named Plaintiffs, who represented 1.5 million members of the proposed class, were three Wal-Mart employees who alleged Wal-Mart discriminated against them on the basis of their sex by denying them equal pay or promotions. The Ninth Circuit certified the proposed class, a necessary step for the suit to continue as a class action, and Wal-Mart appealed this decision to the Supreme Court. To obtain class certification, the Plaintiffs must show that they are appropriate representatives of the class. Among other things, the Plaintiffs must demonstrate that there are "questions of law or fact common to the class," a requirement referred to as commonality. In Dukes, Justice Scalia noted that the "crux of this case is commonality." To satisfy the element of commonality, Plaintiffs must show "significant proof" that Wal-Mart "operated under a general policy of discrimination."

The Plaintiffs' expert in Dukes relied on a method called "social framework analysis", which examines an employer's policies and practices and evaluates these policies against what social science research has established as factors that generally lead to bias. Social framework analysis has been a popular method for plaintiffs to try to establish a ''common'' policy or practice in workplace discrimination suits.

The Plaintiffs' expert testified that Wal-Mart has a "strong corporate culture" that makes it "vulnerable" to gender bias. He went on to testify, however, that he could not "determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart." In holding that the expert's testimony was "worlds away from significant proof" that Wal-Mart operated under a general policy of discrimination and could not effectively speak to the issue of commonality, Scalia concluded it was safe to disregard the expert's testimony. Notably, although the Court did not definitively rule on the issue, it indicated that even at the class certification phase, an expert's testimony must satisfy Daubert to be admitted.

How does the Dukes opinion affect an expert testifying in a workplace discrimination class action suit? First, class certification will be harder to obtain in workplace discrimination suits. Furthermore, the Supreme Court's conclusion that the Dukes Plaintiffs failed to establish a general policy of discrimination suggests that future plaintiffs will no longer be able to rely solely on the social framework method to establish significant proof that an employer operated under a general policy of discrimination. Instead, a plaintiff must introduce evidence, through expert testimony, showing how such bias actually impacted the workplace, not just that it was vulnerable to bias.

October Expert Witness News & Links

Wed, 12 Oct 2011 00:31:26 +0000

Westlaw Round Table Group begins a monthly review of notable recent expert witness news & links from around the internet...

Rule 701 vs. 702 in Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co.
10/25/11, Complex Litigation Blog

How to treat the opinions of experts who appear in courts as fact witnesses.

The Impact of Wal-Mart Stores, Inc. v. Dukes on Expert Witness Testimony
10/12/11, Round Table Group

One of the biggest cases of 2011 also has consequences for expert witness testimony.

Judge caps fees for indigent murder defendant who wanted to hire pathologist from the Casey Anthony trial
10/7/11, Dayton Daily News

County argued that, given its budgetary problems, it should not be put in a position to pay the fee schedule requested by an expensive expert.

What to do about an expert witness client who isn't paying their bills?
10/6/11, creditexpertwitness.com

A very thoughtful article about the expert witness collections process -- an especially important topic in this economy -- from a credit expert.

Best expert witness has credentials, credibility & charisma
10/5/11, San Antonio Business Journal

This San Antonio Business Journal article explores the role of expert witnesses, and what makes a good expert witness.

Which business valuation certification is best for expert witnesses?
9/28/11, Business Valuation Law News

Is there a particular certification or degree which is best for someone wanting to be a financial expert witness?

Expert witness immunity abolished in UK
9/27/11, McParland Finn Ltd.

Expert witnesses in the UK have historically been immune to claims of negligence arising out of evidence prepared for the purposes of and in connection with legal proceedings, but a recent Supreme Court decision changes that.

Do We Treat Our Juries Like children?
9/27/11, Huffington Post

Do courts severely restrict important -- even life-saving -- testimony, for fear that lay jurors won't know what to do with it?

Experts: Don't Rely on Your Client's Conclusions!
9/27/11, expertwitnessguru.com

Expert witness testimony must be based on scientific and reliable methodology and not on the assumptions of attorney or client.

Capped & Low Fees Deter Expert Witnesses from working on legally aided cases
September 2011, UK Register of Expert Witnesses

A summary of changes to the UK legal aid program limiting how much expert witnesses in various fields can charge. This article also lists how much experts on legal aid cases can be paid in common fields if they're in London or elsewhere.

Federal Rule of Civil Procedure 26 & Expert Disqualification 9/22/11, Advise & Consult, Inc.

A good summary of Federal Rule of Civil Procedure 26 which provides the general guidelines used in the discovery process, including usage of experts.

4 Mistakes Lawyers Make with Expert Witnesses
9/7/11, Lawyerist

Be wary of these mistakes lawyers frequently make with their expert witnesses.

Financial pros add 'expert witness' to resumes
9/6/11, Crain's New York Business

Small, midsize firms encourage employees to get specialized training to help in winning clients.

What Should I Charge as an Expert Witness?

Sat, 08 Oct 2011 23:06:31 +0000

This is an important question -- one which deserves significant consideration. A rate which is too high means that some potential clients will not consider you, and may not come back to ask if you might be willing to negotiate. A rate that is too low may make you seem inexperienced or naive. Who would want to hire a $50/hour brain surgeon?

Consider if you will have a single rate, or several different rates depending on the type of work you are doing. a single rate is tidy, but some experts have a rate for travel, a different rate for research, report writing, and consultation which can be done from their home office, and another rate for time spent in deposition or in court. It is not uncommon for half and whole day rates to apply to deposition and courtroom appearances.

Note that some clients are more willing and able to pay top dollar for the exact right expert, whereas others are more cost-conscious. On pro bono cases, experts typically work for significantly less than their usual rates, sometimes even for free.

Are there significant real costs to the work product you will provide? If you need to pay for laboratory testing, for instance, it is realistic to expect the client to cover the fees. Let them know what it will cost in advance. If you need to fly to a deposition or trial, the client will pay, but make sure first class travel is pre-approved.

Clients don't like being nickeled & dimed, so think carefully before charging for or marking up phone calls, photocopies, and faxes. Some clients will still pay these sorts of expenses, but in the current economy you can expect push-back.

Consider a retainer as part of your billing rate. Retainers can protect an expert from a client's slow payment, but might also discourage clients who may be averse to an up-front payment. Keep in mind that the reduction in risk to you is often an increase in risk for them! A client who readily agrees to a retainer may be showing strong commitment to the case.

Ask yourself what your expertise and time is worth to you. Some experts, particularly those new to the expert witness business, keep their rates low to gain entry into the field. Others, long established or for whom expert witness consulting is a secondary venue, may opt for higer rates.

Here are a few of ways to validate whether you're in the right ballpark:

Start with your consulting rate. If you already do non-legal consulting, consider starting with the rate you charge for that work for similar types of clients. Adjust up or down depending on how interested you are in the expert witness opportunity in question, and how much availablity you have.

Check with your colleagues. This is a terrific, if somewhat time consuming, source of information about expert witness referral rates. Doing this allows you to verify previous information, and also lets your colleagues know you are open to expert witness consulting opportunities.

Ask an expert witness referral service. At Westlaw Round Table Group, we can check our extensive network of experts to anonymously survey what other expert witnesses with similar credentials are changing. This provides a real-time, industry-specific data point for your consideration.

Ten Ways to Kick-Start Your Expert Witness Business

Sat, 01 Oct 2011 20:10:11 +0000

If I'm an expert in my field, but new to being an expert witness, how can I get my name out there?

Here are ten ways to promote your expertise and interest.

Develop a professional website which includes your CV, publications, conferences, awards, any litigation support work you may have done, and your contact information. It is getting easier for a layperson to create a website. Alternately, have a professional web developer build one for you.

Once you have a website, find people to link to you. Some will link to you for free, especially if they already know you, or because they believe you have something interesting to say. Other links (industry directories, for instance) may want to charge to link to you. That may or may not be worthwhile, depending on the quality & quantity of traffic at their site.

Consider pay-per-click advertising. Google is the #1 destination when people are looking for things -- even expert witnesses! -- and they have made it easy to advertise your services when people are looking for exactly what you do.

Use your social networks, both the personal "hand shake" network of colleagues and associates, as well as professional internet social networking services like LinkedIn. Let your colleagues know that you are actively seeking expert witness opportunities. Some will already be serving in this capacity, and may be able to refer opportunities, or at least share advice and guidance.

Build your network by joining a professional association that either focuses exclusively on expert witnesses, or one that focuses on your area of expertise, and has an expert witness forum or advisory group. Many professional groups have these, as do many universities and alumni associations. Build your online network by joining social media networking groups in relevant topics. If you have the time, freely share some of your expertise by blogging about topics you know a lot about, or sharing a periodic email newsletter.

Go to pertinent conferences when potential clients will gather in large numbers. These are great places to keep up with current litigation trends in your field and to meet people. Offer to speak at appropriate events, such as local bar associations, conferences, community meetings, and other professional associations.

Consider introducing yourself to local law firms, especially if you know they are working on, or have recently worked on cases that overlap with your area of expertise. There are several databases which post recent court filings, which may allow you to reach out to the attorneys or firms who may need your help before they've begun their expert search.

Call your regional media outlets and offer to be an expert they can interview and quote.

Consider finding an individual or firm to help you market your services. A great marketing person working on your behalf can help you make the suggestions above a reality while you focus on what you do best.

Finally, you can join a reputable professional expert witness referral firm like Westlaw Round Table Group. When looking at a referral service, consider their reputation, service, area of specialty, geographic coverage, and of course client base. Admittedly, we're a little biased, but we think there are several advantages of joining a referral service:

They should do some marketing for you
Clients come to them looking for experts
This shouldn't cost you a dime
Many offer benefits such as marketing materials, conference notifications, on-line professional development and eductation, and more.

What Does an Expert Witness Typically Do?

Sat, 01 Oct 2011 05:28:58 +0000

At the core of their job, an expert witness shares her opinion with her clients, the opposing litigators, and the court.

Expert witnesses may perform a variety of tasks for a litigator in the course of a case. Depending on the needs of the litigator, and the details of the case, the expert witness may help evaluate the case, review documents, write an expert report, and testify at deposition or trial.

On a small case, an expert may be asked to do only a few hours of work. On a very big case, whole teams of experts may spend hundreds or thousands of hours over a period of months or years!

The most common deliverables include:

Case Evaluation/Opinion: In the earliest stages of a case, a wise litigator may employ an expert to review the case, evaluate the basic facts, get him up to speed on relevant knowledge, and help sketch out the initial strategy. In cases involving injury, an attorney will frequently want an expert to review medical records and examine the injured party before deciding whether to accept the case.

Document/Fact Review: Often, one of the first things an expert is hired to do is review details of the case which are relevant to the expert's field. For example, a patent case may involve reviewing many documents regarding prior artwork on the patent(s) at issue.

Expert Report: A written document expressing the opinions that the expert has come to after careful review of the facts at hand, is a very common deliverable.

Deposition: Many expert witnesses will give a deposition, oral testimony of a witness delivered under oath in response to questions asked by attorneys. There is no judge present, and the deposition does not usually take place in a court room, but depositions are recorded by court reporters and frequently audio & video are captured.

Trial Testimony: Many expert witnesses will give testimony in a court of law. Testimony is usually oral evidence (often supported with visual aids) delivered under oath in a court of law. During testimony, an expert will likely face cross-examination from opposing counsel. Cross-examination is a relatively unusual and sometimes uncomfortable process, so good attorneys will try to help their experts prepare by letting them know what to expect.

What Are the Standards for Expert Witnesses?

Fri, 30 Sep 2011 23:13:16 +0000

There is not an "expert witness degree" or particular course of study which is required to become an expert witness, but expert witnesses are expected to be experts in their fields. Most expert witnesses have an advanced degree of some kind as well as the sorts of roles you might expert (doctor, engineer, etc.), but extensive real-world expertise can make up for a lack of formal training in some situations.

To ascertain if a particular expert is qualified to be an expert witness, courts employ a set of standards in a Daubert hearing to determine the expert's qualification. When courts decide to have a Daubert hearing (which is not uncommon), they hold the expert to the standards laid out in Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, a landmark case in 1993.

These standards exist to ensure the quality, soundness, and applicability of the expert's testimony.

Am I qualified to be an expert witness?

There is no set rule about how many years of experience or how many years of experience or publications it takes to be an expert witness, but ask yourself these questions:

Compared to most people, do you know more about your area of expertise?
Compared to most of your professional colleagues, do you possess more experience?
Do you hold advanced degrees in your field?
How many publications have you authored?
Do you hold any patents?
Do you speak at conferences?
Have you ever been interviewed by the media?
Do you hold offices within professional associations?
Do you have a similar background to other expert witnesses in your field?

These are all indications that you may be qualified to be an expert witness.