It is important to determine if you will need to find an expert witness for your litigation. In general, an expert witness should be considered as an option whenever the case meets at least one of the following criteria:
- The facts and issues of the case are not easily comprehensible
- The case requires the trier of fact to reach a conclusion that is not easily attainable
- The issues of the case are complex and the judge is not well versed in the relevant concepts
- Damages related to the case must be calculated
As cases have multiplied in the IP realm, the need for expert witnesses has increased and the selection process for them has become more important. When handling cases involving these complex IP issues, often in regards to technology, the choice of a knowledgeable expert can be critical to determining the relevant facts of a case and interpretation of those facts. A combination of external legal counsel and a company’s in house resources is necessary to determine what type of expert will be needed as well as creating criteria for the selection of a qualified expert from the desired field.
In addition, when the above criteria are met, it is likely that the opposing party will recruit an expert witness. If the opponent has an expert and you do not, the trier of fact will most likely rely on that expert’s testimony because they have no other “expert” to compare it with. It is therefore prudent to explore the option as a bare minimum to determine how you would use the expert during the case. It is also important to protect your consulting expert for successful litigation and testimony.
Selecting an expert witness involves ascertaining what you need from the expert, which is usually one of the following:
- Helping the trier understand the key issues which revolve around a particular science or study. For example, a key hurdle is whether or not a technology is actually infringing on a patent. This can be particularly challenging if the science or study is very specific. Such as, a particular wireless communications standard.
- Building a fact basis to try or defend a case. An example would be conducting market surveys for a trademark infringement to see if consumers were actually confused.
- Assessing the value and extent of damages. An example would be determining the extent to which a patent infringement caused a company to lose customers to the competitor.
While large directories of expert witnesses are available, it is often more timely to retain the services of a full service expert witness firm who can recommend experts based on the facts and issues of the case. In addition, they can help to determine, pre-trial (at lower cost), whether there is in fact a case (such as in the case of a possible patent infringement). Having the wrong witness can be a costly blunder if, upon investigation, the determination is made that an additional expert is needed for details that the current expert is not qualified to opine on.
Full service firms such as GHB Intellect, act as a liaison for expert witness services to match up experts with cases on the basis of technical skills. This can save time and money on the front end and ensure that you get an expert who has been “peer-reviewed” by other experts. Peer-review is the standard for establishing the credibility of science and studies and should be used the same way to select high quality expert witnesses.
Please do not hesitate to contact us in order to learn more about how we can help you source an appropriate expert witness.