In this episode…
In this episode of our podcast Discussions at the Round Table, host Michelle Loux connects with Dr. Michael Einhorn to explore his work as an expert witness and what inspired him to focus on economics. He talks about his work at the Department of Justice, and how that experience provided an opportunity to work with lawyers and evolved into the areas of intellectual property and media. The conversation includes Dr. Einhorn’s perspective on how COVID has impacted the expert witness role, as well as thoughts on how he approaches the formulation of his expert reports.
Note: Transcript has been lightly edited for clarity.
Host: Michelle Loux, Assistant Project Manager, Round Table Group
Guest: Dr. Michael A. Einhorn, Litigation Support Consultant, Media Technology and Copyright
This episode is brought to you by Round Table Group, the Experts on Experts®. We have been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.
Michelle Loux: Welcome to our show Discussions at the Round Table I am your host Michelle Loux, Assistant Project Manager, with Round Table Group. Today our guest is Dr. Michael Einhorn, an economic consultant and expert witness who specializes in intellectual property, media entertainment licensing, antitrust, and personal and commercial damages. Thank you Dr. Einhorn for joining us today.
Dr. Michael A. Einhorn: You are welcome, thank you.
Michelle Loux: Let’s talk about your interest in economics. Why did you choose that direction?
Dr. Michael A. Einhorn: I was first interested in mathematics, politics and law and economics, presented a good combination of personal interests for academic study. I went to Dartmouth as an undergraduate and received my Ph.D. from Yale. I then worked at Bell Laboratories for three years and went on to join the faculty of Rutgers University in the economics department.
Michelle Loux: When did you start your work as an expert witness?
Dr. Michael A. Einhorn: I started to work as an expert witness in the year 2000 when I became involved in litigation involving entertainment and copyright. Copyright became a hot issue at the beginning of the Digital Millennium Copyright Act and then Napster case. From copyright, I moved on to work in patent trademark, antitrust and commercial damages.
Michelle Loux: How did you jump from economics to intellectual property?
Dr. Michael A. Einhorn: A central idea of economics is to establish the market prices or licensing fees that would result in a comparable market situation, which is also the legal standard. An expert skilled in economic concepts would go ahead and use those skills to determine valuations for litigation. Intellectual property involves two measurements that economists are concerned about. The first matter is valuation. What is the valuation of a license, or what is the valuation of actual damages, resulting from an infringing work? The second thing sometimes is unjust defendant profits. You want to figure out how much the offending party has earned from the improper use of a copyright or trademark. There is also transactional work related to the sale of intellectual property.
Michelle Loux: What did you learn from working in the government?
Dr. Michael A. Einhorn: I worked in the Antitrust Division of the U.S. Department of Justice from 1991 to 1997. I was involved as an in-house economic consultant in the Antitrust Division for attorneys who were active in telecommunications, utility, and antitrust cases.
Michelle Loux: Did you find that you developed your expert witness experience in the Department of Justice in separate ways than in the private sector?
Dr. Michael A. Einhorn: Yes. Acting as a non-testifying in-house economist at the Department of Justice gave me to work with lawyers where our communications were protected. It is here possible to have detailed conversations with lawyers and parties, hear the ups and downs of the particular case, and offer insights that are not discoverable in a court. The Department of Justice often uses inside work and then proceeds to hire outside counsel to testify to the soundness of its argument. The DOJ economists often stayed off the witness stand and therefore could maintain privilege.
Michelle Loux: What about the transition from antitrust to media and technology?
Dr. Michael A. Einhorn: I first served as an economic expert in copyright cases and filings and wrote several articles for the Journal of the Copyright Society and Entertainment and Sports Law. I went on and wrote the book Media Technology and Copyright, which was published by Edward Elgar and distributed to nearly 1000 libraries, most of them law libraries. That book involved chapters on copyright, patents, trademarks, publicity rights and open-source software.
Michelle Loux: Did you find those cases to be more engaging than the others?
Dr. Michael A. Einhorn: More interesting. Law cases are always interesting. I enjoy cases with good economic issues, careful forensics, and lots of practical learning about the workings of the law. When the valuation issues are complex, it is a more enjoyable process because then you not only have to devise some analysis, but you also have to get that point across to the attorney and court in clear language. You have to face some strategy, there is an opposing expert, and you will go to a deposition. Here, an expert must be very focused on law, express points simply, and let the other side understand that you’re going to make it to the stand, if you have to.
Michelle Loux: We are going into year three with COVID. Have you seen a shift in direction regarding litigation?
Dr. Michael A. Einhorn: From a litigation standpoint, there is a COVID delay in the courts. It takes a while before things get lined up in front of the judge. But this can be an opportunity for an expert. It gives you more time to get organized and more opportunities to think carefully about your work.
Michelle Loux: Dr. Einhorn, what is attorney-client privilege?
Dr. Michael A. Einhorn: The attorney-client privilege means that certain communications between the attorney and the expert will not be disclosed to the other side. The only thing the other side gets to see is the materials that the expert relied upon in forming his or her opinion. The other side then is not entitled to see other communications on general matters that did not go into forming the submitted report. It is very important to me to make sure that our communications are protected as much as possible. That allows me to tell the client when I think of a particular argument, where I think it can be trouble down the road. This complication may not seem like the easiest thing to hear at the beginning, but it’s something you need to know when the motions start coming in. Before taking a retainer, I try to review the complaint in public information to let the attorney know everything I see as early as I see it.
Michelle Loux: Do you try to make your reports focused or open-ended?
Dr. Michael A. Einhorn: I try to be focused at all times. I do not like to leave things vague or open because anything I say can be used against me in a deposition or court. That having been said, a plaintiff expert must establish reliable proof of damages in the first place, and a sufficient casual connection from the purported infringement to the sought remedy. I have written quite a bit on this casual connection in the Journal of the Copyright Society. With attorney advice, I will consider strategically what the other side may do in response. If I am working as a defense expert, some attorneys like a direct rebuttal, while others prefer to add an affirmative valuation. With the latter type of report, we are able to neutralize the other, and then put up what we think is the right valuation for the matter if it does go to court.
Michelle Loux: What is your deposition strategy? Do you find that the matter to disqualify to be a considerable issue?
Dr. Michael A. Einhorn: Just write a straight report and talk about it. An attorney once advised me there are six derogatory words to watch out for. We have who, what, where, when, how, and why. The first words, who, what, where, and when are simple questions that require simple answers. The words how and why are critical. Each involves more than an easy answer. Just keep the response simple, answer the question and be consistent with your report and don’t say anything more. Let them follow up with another question. When the other side asks you at the end if there’s anything you want to add, the invariable answer is nothing. Because I know that anything I say can lead to trouble. If you keep the answers narrow, your attorneys can come again at the end and try to straighten some things out on cross-examination. Explain, but don’t educate the opposing counsel.
Michelle Loux: Do you find that you assist attorneys in writing questions and motion documents?
Dr. Michael A. Einhorn: All the time. I always try to assist attorneys on cross-examination of the other expert and limiting motions related thereto. One of the things that I am determined to do, if at all possible as an expert, is to stop the opposition from wanting or choosing to go to trial. Settlement is a very good idea when it comes to the client who is going to pay for the work. One of the best ways to do that, and make the other the other side see reason, is to call them out in the deposition. Many times, their expert does not realize how out of line they are, and the attorney does not understand how much the expert has left behind.
Michelle Loux: What happens when you go to trial in front of a jury?
Dr. Michael A. Einhorn: You should know questions that will be asked, and have a visceral, but not memorized response, on what to say. Look immediate and natural. The one thing I have learned is these things can be very uncertain. Juries are ambiguous and judges can issue unfriendly instructions beforehand. If I am on the stand, I try to be as direct and consistent as possible. I know exactly what I wrote and what I believe in.
Michelle Loux: What about visual illustrations?
Dr. Michael A. Einhorn: Visual illustrations are a considerable matter for discussion. I’ve had one attorney who insisted on taking me through a whole deck of slideshows to show every dot in detail of five different contracts that the other side entered in the course of 15 years. We entered the slides and evidence beforehand. In another matter, that the attorney took me through my report in 20 minutes and was focused as possible with his questions. We used visuals only as illustrations of the report. We were very successful in both instances in reaching the jury and educating them on the facts of the case. The ultimate answer here depends on who the jury is, where the jury is, who the other side is, and who the judge is. You must always establish the response that leads the jury to understand that you are being as forthcoming as possible. That is part of the process of educating a jury.
Michelle Loux: And I think this is where experience in a variety of cases with different jurors, different attorneys, and judges helps you be successful. You have a variety of opponents and situations that you are up against.
Dr. Michael A. Einhorn: You need experience, clear thought, instinct and a lot of horse-sense.
Michelle Loux: Dr. Einhorn, I appreciate your time with us today, your insight into your background, and talking about your career. Thank you.
Dr. Michael A. Einhorn: Thank you very much Michelle.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Michael A. Einhorn is an economic consultant and expert witness in the areas of intellectual property, media, entertainment, technology, trademarks, publicity rights, and product design. He received a B.A. from Dartmouth College, a Ph. D. in economics from Yale University, and is the author of Media, Technology, and Copyright: Integrating Law and Economics (Edward Elgar Publishers, 2004) and over seventy professional articles in the area of law and economics. He is also a former professor of economics at Rutgers University, a Member of Technical Staff at Bell Laboratories, and an economist at the United States Department of Justice.
Our copyright expert witnesses, speakers, and consultants include scholars from major universities, lawyers, scientists, engineers, computer experts, and other industry professionals with extensive knowledge in copyright matters worldwide. They have had years of practical experience in the litigation of intellectual property cases, including trials and appeals, before United States courts, the U. S. Patent and Trademark Office, Trademark Trial and Appeal Board, and the Internet Corporation for Assigned Names and Numbers (ICANN) arbitration tribunals and been retained by the Federal Judicial Center (the federal agency charged with continuing education for federal judges) to deliver seminars in patent, trademark, and copyright law to local federal districts.
Many cases require the retention of an economics expert, and the specifics can span a range of focus areas including valuation, profits or losses, damages, and more. Our economics expert witnesses, speakers, and consultants are scholars from major universities and industry professionals.