Patent expert witnesses are in high demand. Continued advances in technology and the highly competitive nature of the business world ensure that patent litigation will continue to grow for many years to come. Traditionally, finding a qualified expert with specialized knowledge in the scientific field subject to your litigation has been difficult. Accordingly, many expert witness referral firms place an increased emphasis on providing a large panel of patent experts in all relevant fields to assist attorneys in their time of need.

Such assistance, however, does not preclude you from looking for an expert yourself. Let's say you have a potential need for a semiconductor expert. Where should you go first? One of the Internet's free expert databases or a simple Google search? No way. Shame on you for even thinking that. Head to Amazon.com. When evaluating the qualifications of an expert, courts tend to give greater deference those who have published extensively in the field related to the patent in issue. Amazon sells a bevy of technical books on almost any scientific field you might need. A simple search for "semiconductors" turns up literally thousands of books. It is then a small matter of contacting a book's author, who is usually easily located in his or her respective university directory.

Give Amazon.com a try next time you are thinking of using an expert. And while you are there, buy a DVD, or a vacuum cleaner, or a hairbrush for your dog. Or some other item you do not really need. Your patent expert searches can help turn the economy around!

Nick

A Manhattan judge has allowed a lawyer who worked for Bear Stearns & Co. Inc. for 29 years to testify as a securities expert witness in an arbitration against his former employer. Bear Stearns is being sued by Keefe, Bruyette & Woods Inc., for allegedly overpricing bonds sold by Bear Stearns' hedge funds three years ago. The judge noted that there was no indication that the issues involved in the arbitration were issues about which the expert acquired confidential information. Check out the scoop here.

The Judicial Conference of the United States recently proposed an amendment to the Federal Rules of Civil Procedure that would have an impact on expert witness communications. Specifically, the rule would expand the range of communications covered under the work product privilege between attorneys and expert witnesses. The rule change recommendation, as well as another governing summary judgment, must first be adopted by the Supreme Court before going into effect. Check out the full WSJ story.

A pair of lawyers from Sills Cummis & Gross P.C. have written an excellent article providing advice on how to successfully use regulatory expert witnesses in product liability actions. The article highlights the importance of proper FDA regulatory analysis as well as providing a proper regulatory history of the product in issue. It's in the latest edition of the Metropolitan Corporate Counsel. 

Patent expert witnesses can help your client determine whether a competitor's new product infringes upon their patent. Perhaps need to find an expert witness to determine whether or not allegations made against your client's product 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."1

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 witness referral 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.

...excerpt from article written by RTG contributor Lisa Fields.

1  Patently O, patent law blog, Published March 17, 2008: http://www.patentlyo.com/patent/2008/03/patent-litigati.html

The following is part one of a comprehensive guide detailing the use and retention of expert witnesses. It was written by Round Table Group's very own Toby Edwards.

What is an Expert Witness?

Definition of Expert.

"An expert witness is a person with proven specialized knowledge of a specific area, permitted to testify in court about an event or events even though they were not present."

Other Definitions of Expert:

Geographic issues: Tennessee, for instance has a rule requiring expert witnesses to be from Tennessee or a contiguous state, for medical malpractice cases.

Daubert: In 1993 the US Supreme court ruled on a motion arising from Daubert vs. Merrill Dow Pharmaceuticals.  In Daubert, the Supreme Court ordered federal trial judges to become the "gatekeepers" of scientific evidence, determining whether an expert's testimony is both relevant and reliable.

Relevant: pertinent to the case.

Reliable: the expert must have derived his or her conclusions from the scientific method

UK: The Expert must remain neutral, and answers to the Court. Indeed there has been at least one case where an expert was given a hefty fine for slanting testimony.

Why do you need one?

This is the biggest question you should ask yourself.

Generally, you need an expert when a critical argument of your case relies on a specific point of knowledge that laymen don't have. Thus a general point that 'boiling water can scald a hand' is laymen-knowledge. A specific point that 'hands exposed to boiling water over a 3 second duration can cause third degree burns' would need an expert.

Litigation in connection with pharmaceutical marketing has been a hot area for some time, and all signs point toward a continuation of this trend, with a corresponding escalation in billing rates for top talent. Pharmaceutical marketing expert witnesses often help litigators determine how certain pharmaceutical markets respond to the new entry of products, generic products, and price fluctuations. They also design, conduct and analyze surveys to support claims of false advertising, unfair competition, and intellectual property violations, among others. Expert witnesses in this discipline tend to be MBAs, JDs, MDs, and have many years of experience in hands-on sales and marketing within the pharmaceutical industry.

Most pharmaceutical marketing cases are quite large, often with huge stakes not just for clients involved but also for the industry as a whole. As such, pharmaceutical marketing expert witnesses command fairly high billing rates.  A sample survey reveals that the hourly non-testifying rates of pharmaceutical marketing expert witnesses range from a low of $200.00 an hour, to a high of $650.00 an hour, with an average rate of about $400.00 an hour. The average testifying rate was $95.00 higher. Expert witness referral firms are constantly recruiting in this area and are well prepared for an up tick in litigation. 

A U.S. District Court judge has prevented a medical expert witness from testifying on behalf of plaintiffs in cases involving Eli Lily's Zyprexa drug. The expert had previously testified in approximately 20 individual Zyprexa cases. The judge concluded that the expert was "shockingly careless about the facts in the cases he proposes to opine about." "He repeatedly and impermissibly stretched the truth to support findings of causality."

While it is useful for litigators to work with an expert witness who has extensive testifying experience on the issue at hand, it can also lead to problems. Seven of the 20 cases mentioned above where the doctor testified are now pending summary judgment by that same judge. Finding an equally knowledgeable and qualified medical expert witness with less exposure is a strategy worth exploring.

Several bills in the State Senate and House Judiciary committees would serve to tighten expert witness standards in Illinois. The first bill would align the state's expert witness standards more closely with those used in federal court. Another bill would limit the venue for a tort action to a county where the defendant has an office or headquarters.

The Arizona Supreme Court upheld a 2005 state law requiring that any expert witness seeking to testify against a doctor in a medical malpractice case be licensed as a health care provider and be a specialist in the same area as the defendant. The expert must also be actively practicing or teaching in that particular field. The law essentially limits the use of "professional expert witnesses," who critics contend unfairly sway juries even though they may not have specific expertise in the field in issue.

In an article appropriately entitled Expert Witness 'Drought' To Hit Lenders In 2008, specialists at a leading UK law firm foresaw a shortfall of "credible" expert witnesses to help defend sub-prime and impaired credit lenders in what was predicted to be rash of lawsuits in response to the continuing credit crisis. Interestingly enough this is indeed now happening in 2009. Expert witness search firms are stocking up, but consider moving quickly if you need an expert in this field.

Round Table Group's The Expert Advisor, a popular publication for lawyers by lawyers, has issued a "best of" compilation of several helpful articles. These articles are helpful for any attorney using expert witnesses. The first piece is a rare article on the median belling rates of expert witnesses in various fields. The second discusses how poorly selected experts can sometimes hurt more than help. The third is a piece on managing working relationships with retained expert witnesses.

Professor Joseph Sanders of the University of Houston Law Center wrote an excellent article discussing expert witness ethics. The article details the ethical standards that should attach to expert witnesses and methods those in the legal profession should use to encourage further ethical behavior. Professor Sanders also highlights "impediments" to an expert's ethical obligations and proposed changes to the legal system. It is definitely worth a read.

The impact an expert witness can have on the outcome of a trial cannot be understated. It is also readily apparent that the strategy behind the use of expert wintesses has become much more complex. Accordingly, Thomson West has a guide available, entitled Expert Witnesses in Civil Trials: Effective Preparation and Presentation, 2007-2008 Edition, to help a practitioner wade through the new rules and procedures. According to Thomson West, the guide "offers a logical and straightforward approach to the use of substantive, technical, strategic, and tactical considerations for successfully using expert witnesses in all types of civil litigation."

Accountability

A father without a father

Has difficulty balancing.

A master without a master

Is dangerous.

We look up to our parents, our teachers, and our leaders with trust and expectation. Their responsibility is to guide us, educate us, and even make judgments on our behalf when circumstances are uncertain. Ultimately, they are to bring us to the point where we can make our own decisions, based on the wisdom they have helped us develop.

Now, you are your own person, a parent, a teacher, a leader. And you are more than that: a law firm partner is a teacher's teacher, a leader's leader, a lawyer's lawyer. You make your own decisions now, but as a partner the decision has great weight, awesome power - the power to bring about justice, or the miscarriage of justice. Usually lawyers are rigorous and methodological in all aspects of their work. According to our research, this rigor does not extend to the realm of selecting expert witnesses. Too often, we select experts without undertaking a thorough, methodical search. And yet, an expert witness can win or lose the case

Law firm partners are wise leaders, but the potential for mistakes is great, such as when selecting an expert witness -- what person can be right all the time? A simple lapse at the wrong time can cause confusion, psychological scars, even great disaster if a jury is wrongly persuaded. That is why we need a master for the master, a leader for the leaders, an expert for the experts. This prevents errors of power.  In the past even kings had wise advisors.

Every lawyer who would select an expert witness should have such assistance.  And who should this mentor be? Let us invoke not deities but pragmatism. It is experience that is the ultimate teacher.  Round Table Group connects attorneys with expert witnesses in all fields.  Round Table Group has a network of 95,000 expert witnesses. Round Table Group can connect its clients - those engaged in important litigation matters - with other experts who have "been there, done that," who have the experience to share, the knowledge to provide, to ensure that the expert witness is not a "dangerous expert witness."  [Adapted from "365 Tao."]

Russ W. Rosenzweig

Expert witness testimony can make or break a case. An interesting blog post from 2008, Should You Bring Your Expert Witness Live to Trial?, discusses the pros and cons that litigators should weigh in deciding whether to have their expert witnesses testify live in trial or though videotape. The blog, written by an accomplished group of trial lawyers, advises that generally, a live appearance is preferable. However, sometimes the high testifying fees an expert might charge and/or the scheduling of a witness's time may make a recorded deposition more attractive. Also, some experts may make a better "appearance" on a recording. See the article for further details.

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."

"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."

This article was written by RTG contributor Lisa Fields.

An interesting article on trialtheater.com provides some interesting expert advice. In large cases where multiple experts are used it may be beneficial to provide photographs of your expert witnesses when referring to their testimony during closing arguments. This could help revive jurors' memories of the expert while stressing key aspects of the testimony. The article notes that it may be beneficial to use a photo taken on the same day that the expert testified in order to enhance the impact.

A world-class law firm partner knows that the formula for success = concentration * consistency * cooperation.

1) Concentration. The mind of a law firm partner has a natural tendency to slip into the memories/worries of the past or thoughts of the future. A partner rarely may be tempted to multitask, to switch back and forth between various cases, CLE, personal matters during the day. It is well documented (see, for example, "Mozart's Brain and the Fighter Pilot") that the brain is far more effective when it is single tasking and not multitasking. The mere act of checking your e-mail while engaged in an important task requires a "reboot" that is highly inefficient and does not serve the cause of justice. A partner must do his duty to the cause of justice by concentrating in a focused way on the task at hand, and not multitasking. 

2) Consistency. Know what you know, know what you don't know, and know what you stand for. The opposition will scrutinize everything a lawyer (and the expert witnesses he hires) has ever said, written, or published. Set your tasks and goals and follow them. You are a partner because you were called by society to serve the cause of justice.  Accent is on the work, not the fruits of the work. Be consistent in your thoughts and actions. 

3) Cooperation. A partner cooperates with all parties and acts as selflessly. You are working for a cause (justice) far greater than yourself and your own "needs." Be amicable, friendly towards all, and cooperative. 

It is my pleasure to introduce Round Table Group CEO Russ Rosenzweig, who will be regularly sharing his extensive expert witness referral experience and legal business knowledge with law firm partners across the country on a recurring basis.

Russ W. Rosenzweig is the CEO and co-founder of Round Table Group. Prior to joining Round Table, Mr. Rosenzweig served as a senior consultant for the management consulting practice of PriceWaterhouseCoopers in Chicago. Mr. Rosenzweig was previously the youngest corporate finance analyst at Alpha Capital Venture Partners, a venture capital firm in Chicago, where he focused on providing debt and equity financing to middle market public and private companies.

Mr. Rosenzweig holds a Bachelor of Arts degree in economics and mathematical methods in the social sciences from Northwestern University and an MBA from the University of Chicago Graduate School of Business. He also holds a Certificate in Liberal Arts from the University of Chicago and a Certificate des Etudes from the University of Paris (Sorbonne).

At Round Table Group Mr. Rosenzweig is an advisor to law firms on matters related to location, selection, and retention of experts. He also advises fast-growing private companies on location and selection of advisory board members. The firm maintains a network of 95,000 university professors and industry experts around the world.

An authority on innovation and strategy within larger firms, Mr. Rosenzweig co-created the "Internal Venture Marketplace" framework with Professor Harry Davis of the University of Chicago Graduate School of Business and is the co-author, with Professor Davis, of an article on the topic published in "The Virtual Strategist," an academic journal. He has advised BP, ExxonMobil, Lockheed Martin, Motorola, Black & Decker, FMC Corporation, and other companies on new-venture creation and on promoting entrepreneurship internally. He has applied distance learning and web-based technologies to teach entrepreneurial strategy to hundreds of managers around the world, including, formerly, as Director of the Booz Allen & Hamilton Certificate Program in Business Strategy.

Mr. Rosenzweig serves on the board of advisors of several companies in the United States, France, and the United Kingdom. He was the founder and former Managing Director of Michigan & Oak Partners, a private equity and startup advisory concern. He is an active "angel" and real estate investor.

Mr. Rosenzweig's accomplishments have been profiled in the Wall Street Journal, New York Times, Crain's Chicago Business, Fortune Magazine, the Chicago Tribune, and in four business school case studies published by Stanford University. In 2007, Inc. Magazine named RTG for the fourth year in a row to the "Inc. 500" (now "Inc. 5000") list of the fastest growing private companies in the US. Mr. Rosenzweig is regularly quoted in news articles as an expert in entrepreneurship and business strategy. Recently, Crain's Chicago Business named him a member of "The Internet 100," a select group of influential executives, decision makers, financiers and idea people in the Chicago business community.

A trademark expert witness often plays a key role in the successful resolution of any trademark infringement case. Survey evidence provided by such an expert can demonstrate whether a mark is subject to protection or not, and render an entire claim valid or invalid. Michael Atkins, active trademark lawyer and shareholder in the firm Graham & Dunn, has written a short guide on how to locate trademark expert witnesses. He first suggests checking out previous trademark cases where expert testimony was involved. He also suggests that academics from local universities are a good way to go in the trademark field. Check out his posts for further advice.