Tag: testimony

ConsultantsExpert WitnessIntellectual PropertyLitigationPatent Infringement

PATENT INFRINGEMENT – CEASE AND DESIST!

Patent infringement litigation has been on the rise since the mid 1990s due mainly to the increase in computer-age technology.  Most patent infringement cases involve one company charging another company with selling or using its product for their own economic advantage.  Many times, the Defendant in a patent litigation case has no idea he is infringing on another’s intellectual property, but ignorance is never a defense in the law.  The Defendant will still have to cease benefiting from the patented item and pay the allotted damages to the Plaintiff.   If  the infringement is proven to be willful, damages in such a case can be increased up to three times the actual amount of damage.

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Patent law is governed by Federal Law and the rules are set out by the United States Patent and Trademark Office, 35 U.S.C. 271 Infringement of patent. – Patent Laws.  To find that a patent has indeed been infringed upon, several items must be found. In an article entitled, “Understanding Patent Infringement Legal Opinions”, David V. Radack sets out the following:

  1. A copy of the allegedly infringed patent.
  2. The file wrapper or file history of the patent which includes a copy of the patent application as filed, communication from the patent examiner in charge of the application, and communication from the applicant to the patent examiner.
  3. A copy of the prior art references cited during the prosecution of the patent application.
  4. The allegedly infringing product or device itself. Preferably, a commercially sold device is best.

Once this information is analyzed, many times with the help of Patent Infringement Expert Witnesses and Consultants, an opinion summary is provided.  It is this opinion which sets forth how the parties will proceed, how  the Defendant should respond to a cease and desist order, if changes can be made to Defendant’s product which will eliminate the violation, or to negate a charge of intentional infringement.

Considering the litigation gridlock currently in the Federal Court system, it may be worth it to seek the knowledge of  a Patent Expert or Consultant concurrent with the development of a new device or product. If not then, retaining a Consultant prior to marketing the product could save an enormous amount of time and money.

Please click the link for a list of knowledgeable Intellectual Property, Patent Infringement and Trademark Expert Witnesses and Consultants.

ConsultantsExpert WitnessLitigationMedicalPharmaceutical

PHARMACEUTICAL PRODUCT LIABILITY

With the onslaught of legal drugs on the market, pharmaceutical product liability cases have become mainstream in the court system.  It boggles the mind how many possible harmful side effects there are for one medication alone.  Just listen to any commercial for depression medicine – and you’d better listen carefully.  They have to speak quickly to get them all in.

If a pharmaceutical company lists all possible harmful effects, does that relieve them from liability?  Do a certain number of people have to die or have a stroke in order for the drug to be pulled from the market?  Conversely, did the patient do something to exacerbate the problem?  Take too much of the medicine?  Not enough?  Is the pharmacy liable for miscalculating the dosage?

This is when Pharmaceutical, Pharmacology and Toxicology Experts and Consultants come into play.  The variables are so complex and many that a case cannot be thoroughly adjudicated without the scientific and practical experience that these particular Experts hold.  They use their skills to review medical and pharmacy records, evaluate drug delivery standards of care, toxicity, adverse drug events and even FDA regulations.  These Experts and Consultants are retained to determine the period of time a drug was used and a patient’s average compliance or adherence to taking a drug, among so many other things.

The bottom line is that Pharmaceutical, Pharmacology and Toxicology Experts and Consultants are essential to resolving complex medical issues involving pharmaceuticals and drugs.  That they play a major role in helping to regulate the industry, compensate the injured and defend the innocent cannot be denied.

ConsultantsCredit DamageExpert WitnessLitigationTestimony

CREDIT DAMAGE EXPERT WITNESSES – COMPENSABLE DAMAGES

It used to be that credit damage was not a compensable injury.  The victims of identity theft or fraud could not recover financially for any damage that was not a tangible good or service.  Thanks to the relatively new procedure of Credit Damage Measurement (CDM) and the expertise of many Credit Damage Experts, getting compensated for intangible losses is now possible.

In an article titled, “Credit Damage: Getting Compensated for Your Loss,” Credit Damage Expert, Georg Finder writes that, “ The impact of a bad credit rating is much more significant than most people think. Consider what poorly rated consumers face when they want to lease or buy vehicles, obtain credit cards, buy or lease or refinance their residence. In most cases, it’s an easy decision for the creditor: the credit application is simply turned down or the borrower is charged a much higher down payment – maybe thousands of dollars more with monthly payments that are typically several hundred dollars more.”

Tom Key, a civil litigator practicing in Tustin, CA is also mentioned in Finder’s article.  He explains that the CDM can help by measuring the actual out-of-pocket dollars reasonably expected from loss of creditworthiness, which includes higher down payments, higher points and costs on loans, higher interest rates, higher monthly payments, or outright denial of credit.  In addition, Keys says that the CDM method also calculates the rates, costs and other terms applicable to the resulting credit rating by lenders and projects the results over the relevant number of years for the types of loans the client is likely to seek.

For those who have suffered from identity theft or fraud that has left them with little or no credit, all is not lost.  With the help of a good Credit Damage Expert, civil litigator and the CDM procedure, recovery is not only possible, but likely.

Read Experts.com Member, Georg Finder’s, complete article.

AccountingBusiness ValuationExpert WitnessForensic AccountingFraud

FORENSIC ACCOUNTING EXPERT WITNESSES & CONSULTANTS

In the fall-out from the past few years’ financial debacle, there has been no shortage of work for Forensic Accountants.  From the Bernie Madoff scheme to Lehman Brothers and all the financial scams in between, Forensic Accountants have been called upon to apply the concept of accounting to help lawyers adjudicate and resolve the resulting legal problems.

Image Courtesy of Trade & Global Market

The Accountant’s Handbook of Fraud & Commercial Crime offers a definition which has been informally accepted by many Forensic Accounting Experts.  The definition is as follows:

“Forensic and investigative accounting is the application of financial skills and an investigative mentality to unresolved issues, conducted within the context of the rules of evidence. As a discipline, it encompasses financial expertise, fraud knowledge, and a strong knowledge and understanding of business reality and the working of the legal system. Its development has been primarily achieved through on-the-job training, as well as experience with investigating officers and legal counsel.”

Forensic Accountants apply their knowledge to many different financial transactions such as

  • Bank Fraud & Embezzlement
  • Bank Operations & Practices
  • Check Kiting
  • Electronic Transactions
  • Embezzlement
  • Money Laundering
  • Payment Processing & Fraud Detection/Prevention
  • Royalty Audits
  • Claims Analysis
  • Determination of Compliance

A Forensic Accountant’s area of expertise is not limited to financial crimes and fraud. They apply their knowledge to civil matters as well. Their services are useful for breach of contract, business valuations and marital / family law.

Considering the amount of financial litigation out there today, whether it be civil or criminal, the Forensic Accountant’s docket is most likely as full as the courts in which they testify.

Demonstrative EvidenceExpert WitnessLitigationTestimony

EXPERT WITNESSES – RULES FOR VISUAL AIDS IN THE COURTROOM

Medical Illustration

Photo Courtesy of Coulter Medical Imaging

Visual Aids and Demonstrative Evidence are an excellent way for Experts to explain complex medical, financial and technical issues to juries.  Listening to Finance Experts expand upon how damages were calculated in real estate litigation or to Medical Experts explain a botched surgery is often not enough.  For hard to follow testimony, visual displays or demonstrative evidence, such as charts, drawings, graphs, and models can be essential to capturing and maintaining a jury’s attention.

In their book entitled, “Expert Testimony,” Steven Lubet and Elizabeth I. Boals suggest that there are Six General Rules for using visual aids in the courtroom.

  1. Keep It Simple – too much information can overload the jury.
  2. Only use information essential to the case and easily demonstrated.
  3. Obtain professional assistance in drawing and developing visual displays.
  4. Work in conjunction with the attorney – the visual aids may be subject to legal or procedural rules that govern their use.
  5. Be sensitive to the judge and his/her acceptance of digital technology displays – confer with counsel.
  6. Be sensitive to the impact of graphics – an enlarged photo of a bloody bullet trajectory may be too disturbing for a jury.  A drawing may get the point across and also be less offensive.

As technology progresses, litigation is becoming increasingly more complicated for juries to understand. Using demonstrative evidence and visual aids and following these general rules can mark the difference between a case won and a case lost.

Expert WitnessTestimony

Expert Witness Experience – How Much Is Enough?

Federal Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.”  How much experience is enough has arisen  as a very controversial issue for Expert Witnesses.  Do more experienced experts give more accurate opinions? Are they more competent to testify?

According to Stanley L. Brodsky, in his book titled, The Expert Expert Witness, “…studies have shown that it is not the amount of experience that is central to doing a good assessment, but rather, it is how skilled the assessor is and how well he or she chooses and uses measures of the issues at hand.”  He goes on to say that if the issue of experience is brought up in a deposition, the argument can be made that many people have worked for years in a certain field yet remain marginal at their jobs.  Others can work for a just a short time and be extremely proficient.

Most people remember the scene in My Cousin Vinny where the out of work hairdresser/ girlfriend, Marisa Tomei, qualifies as an Expert Witness because her grandfather, father and brothers were mechanics and she grew up in  a garage doing tune-ups, engine re-builds, transmissions, brake-relining, etc. Now in theory and movies, this is all well and good and Rule 702 may be satisfied, but the courts have set more stringent limitations on Expert Witness qualifications.

Without going into an in-depth analysis, the Daubert Rule (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) and it’s progeny established five criteria in determining the validity of an Expert Witness:

1. Has the Expert’s technique been tested?
2. Has it been subjected to peer review and publication?
3. What is its known or potential error rate?
4. Are standards controlling the technique in place and maintained?
5. Is it generally accepted in the relevant scientific community?

This generally relates to the scientific community, but if the testimony given by an Expert Witness does not meet these standards, the Expert may be excluded from the case.  Take, for instance, an Expert who believes he is the most knowledgeable in the field of UFOs and who is called upon to testify that UFO emissions caused an increased rate of cancer in a community.  Unless it is generally accepted that flying saucers exist and that they cause cancer, the Expert’s testimony may be considered “junk science” and the Expert would be disqualified from the case.

Again, it is not the number of years that qualify one as an Expert.  Those new to Expert Witnessing should not be intimidated if they lack experience.  However, they must satisfy the rules governing the admissibility of Expert Witness testimony and have an acute understanding of the issues on which they are to opine.

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Expert Witnesses – Practical Guide to Smart Business Practices

Expert Witnesses have been burdened by issues that hinder their ability to both perform and receive compensation for their performance.  This post is a simple but practical guide to help Expert Witnesses overcome a few obstacles related to their work and help them become more efficient and effective .

Fee Collection. Perhaps the most problematic issue for Experts is collecting fees. There are many ways for this to become an issue. The attorney may fall behind in payments, may want to pay less if a settlement is smaller than anticipated, or may not want to pay at all if the case is lost.

  • Get a written agreement which includes all of the terms and conditions and any consequences for failing to comply. In an article for Expert Witnesses, appellate lawyer, Aaron R. Larson, writes, “Your agreement with the attorney should specify that you may decline to perform additional services if the attorney has not paid your fees for prior services. “ This will allow for more security once the attorney engages the Expert. More time can be focused on the issues of the case rather than how and when the Expert will be paid.

“Hired Gun” Syndrome:  Disparaging remarks made by counsel as to the ethics of Experts Witnesses has always been a bane to the practice. Merriam-Webster’s Dictionary defines a hired gun as, “an expert hired to do a specific and often ethically dubious job.” Credibility should be the number one priority. Here are two ways to protect your professional integrity:

  • Prior to engagement, tell the attorney that your opinions will be based on the facts of the case and your testimony will not be compromised by the attorney’s desired outcome of the case.
  • Perception is everything. If an Expert only testifies on behalf of either plaintiff or defense, than the Expert risks the perception of being a hired gun.

Depositions and Trial Testimony

  • Legal Issues – Have an understanding of the legal issues in the case. Regardless of your expertise, the legal issues may vary from case to case. For example, a Biomechanics Expert may have to opine in a case regarding an injury. This injury may be negligent or intentional. In such a case, it is important to differentiate between the two legal causes of action.
  • Do Not Interrupt – In order to have an accurate record, allow each person to finish before you speak.
  • Silence Is Your Friend – Only answer the questions asked. Never offer more information than is required. If counsel asks a “yes” or “no” question, only answer with a “yes” or a “no.” Do not add fluff to fill the silence.
  • Think Before You Speak ­– Take time to form an answer before you begin speaking. It is better to pause and be comfortable in the silence than to give an unsupported answer. If you do not understand the question, ask for clarification.
  • “I Don’t Know” – If an Expert is caught off guard with new or hypothetical facts that have not yet been analyzed, it is better to answer, “I don’t know,” rather than state an unsubstantiated opinion that can damage the case.
  • Check Your Ego at the Door – Experts are most effective when they are likeable! An Expert is more likely to be persuasive if they are well-liked.
  • Simplicity is Key ­– Make complex explanations understandable.