Two Mistakes That Can Produce Tragedy in Patent Litigation
Reprinted with permission.
Two Mistakes That Can Produce Tragedy
in Patent Litigation
By Robert Ambrogi
BullsEye: July 2011
IMS ExpertServices™ is the legal industry's premier full-service expert witness provider.
Robert Ambrogi, in an interview with attorney Michael J. Abernathy, identified something we see all the time in patent litigation – that an attorney either “relies too heavily on the expert for technical help without reviewing the technology” first or they “micromanage the expert” to the point where they prevent the expert from being an expert. While the article notes that both extremes present a number of challenges, we believe neither mistake is permanent or unrecoverable.
The second mistake, conversely, seeks to micromanage an expert to the point where the expert’s opinion is masked, or completely subdued, by the attorney’s. This type of attorney runs the risk of diluting the credibility of the expert witness and creates a weakness that can be exposed by the opposition, Ambrogi cautions. Attorneys who find themselves in this position are wise to quickly find a more amicable working solution before inflicting irreversible harm to their case.
The interview brings to light a number of solutions to mitigate the potential negative impacts from these mistakes. First, the attorney must engross himself into the subject matter of a case from the beginning. During this immersion phase, the attorney should incorporate the expert to ensure understanding of the case precepts, themes and timelines.
Next, the attorney must be prepared to allow the expert to demonstrate their expertise. While some assistance may be warranted, or even requested, by the expert during this phase, the attorney must allow their expert the opportunity to review the technology, address the issues in question, and render an opinion of their own fashion. Although there is considerable team work involved, attorneys should be cautious of inadvertently or purposefully crafting or swaying the expert’s opinion.
Lastly, the attorney should involve the expert during each phase of the proceedings. The expert should be seen as a member of the team whose role is to provide valuable insight and expertise at critical junctions. They should be properly prepared to handle any situation that may arise during deposition or at trial. Experts must be cultivated in ordered to produce the best fruit.
Attorneys that find themselves either too involved or not involved enough must take immediate action to avoid significant issues. While there may be points during a proceeding to reverse course and avoid the pitfalls mentioned above, the best course of action is to adopt a work style that straddles the divide from the beginning.
Tell us: How can attorneys avoid being too involved or not involved enough?
Taken in part from “The Two Most Common Mistakes Lawyers Make in Using IP Experts,” as published in BullsEye, an IMS ExpertServices e-publication edited by Robert Ambrogi.
This article was originally published in BullsEye, a newsletter distributed by IMS ExpertServices™. IMS Expert Services is the premier expert witness search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal industry BullsEye publications, please visit IMS Expert Services' recent articles. For your next expert witness search, call us at 877-838-8464 or visit our website.
Related Pages on RF Cafe
- Inventor Testimony in Patent Litigation
- Regression Analysis in Litigation
- Expert Testimony Central to Coffee Class Decision
- 10th Circuit Posits 'Unifying Theory' for Daubert Gatekeeping
- Do You Need an Expert to Sue an Expert?
- What the #!$% Is Bitcoin?
- Dilbert Versus Daubert - Which Standard Controls in Patent Design Cases?
- Lack of Expert Leads to Reversal of Patent Case
- Excluding Expert Testimony the Jury Already Heard
- 7th Circuit Excoriates Lawyers, Judges for 'Fear of Science'
- Federal Circuit Ponders Abandoning De Novo Review
- Apple, Samsung Daubert Docs Should Have Been Sealed, Federal Circuit Rules
- When an Expert's Testimony Counters His Own Report
- Fortune Telling & Reliability? An Expert Testimony Enigma
- Can Expert Statements Inadvertently Waive Protection?
- E- Discovery: 10 Strategic Steps for Defensible Search
- The 'Almighty' Federal Circuit? Evolving Patent Policy & Jurisprudence
- A Scientific Weapon for the Courtroom?
- Experts Face Fewer Challenges in Court, Survey Says
- Death of the ITC?
- No Appeal for Expert Witness 'Third Wheel'
- Patent Trolls on Trial?
- To Testify or Not to Testify: Re-Designating An Expert Witness?
- The Future of Predictive Coding (Part II) – Caveats Revealed
- The Future of Predictive Coding - Rise of the Evidentiary Expert?
- Think Before You Click - Facebook’s "Like" Button
- A Siri-ous Affair?
- Denial of Cert in "Junk Science" Case Leaves Lawyers Reeling
- A Peek "Under the Hood" of America Invents
- 10 Predictions for Litigation in 2012
- Attorneys Turn to iPads to Prepare and Question Experts
- Two Mistakes That Can Produce Tragedy in Patent Litigation
- Opposing Experts & Summary Judgment
- Could IBM’s Watson Make Experts Obsolete?
- An Expert's Change of Mind Can Be Shattering
- Why Do They Call Us Expert Witnesses? Part II
- Why Do They Call Us Expert Witnesses? Part I
- Bilski's Lesson: Avoid Abstraction
- Expert Secrecy: An Ethics Dilemma?
- New Federal Rule on Experts Takes Effect Dec. 1, 2010
More than 10,000 searchable pages indexed.