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Selecting and Working with an
Expert
Gregory J. Lavorgna, Esq. – Drinker Biddle & Reath LLP
Jesse David, Ph.D. – NERA Economic Consulting
Calculating & Proving Patent Damages
LSI Seminar – Philadelphia, PA
October 30, 2006
Selecting and Working with an
Expert - Topics
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Choosing an Expert
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Litigation Objective
Expertise/Experience
Reputation of the Firm
Cost
Availability/Timing
Compatibility
The Interview
Cost Management
Timing
Work Product Issues
Choosing an Expert
Litigation Objective
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Force defendant to exit?
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Push lost profits
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More aggressive claim
Expert should be able to analyze the market
Get a license?
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Reasonable royalty
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More realistic claim
Litigation Objective (cont.)
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Educate the other side…or scare them?
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Most cases don’t go to trial
Negotiations
Can defendant bring counterclaims?
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Antitrust issues
Expertise
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Should expert have direct experience with
subject matter of case?
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Pharmaceutical, healthcare industries
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Counsel should have reasonable expectations
about finding a candidate
Helpful if expert understands liability issues
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Critical institutional background
Will appear to be more than just a “bean counter”
Academic vs. professional
Experience
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Lots of cases can mean lots of
experience
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Can also mean greater potential for
inconsistent positions from prior cases
Does the expert look like a “hired gun”?
Few cases can mean a “clean”
background
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Can also suggest lack of expertise
Experience (cont.)
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Track record in court
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Mentioned in opinions?
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Plaintiff or defendant work?
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Favorably or unfavorably?
Less critical for patent cases
CV
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Relevant non-litigation experience
(publications, speeches, etc.)
Reputation of the Expert’s
Firm
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How important is it?
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Other experiences within your law firm
Client management
Expectations about the expert’s
colleagues/assistants
Cost
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Look behind hourly rate
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Ability of seasoned expert to get right to
the core may be cheaper in the long run
Can expert provide cost estimates
based on previous cases?
Is expert willing to work to a reasonable
budget?
Availability
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No conflicts
Will expert be there when you call?
Will expert give your case the attention
it requires?
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Will expert personally write reports, deal
with counsel, etc.?
How much will expert delegate to junior
colleagues?
Compatibility
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Can you and your client work smoothly
with expert?
Is expert
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Reasonable?
Flexible?
Polite to client?
Polite to staff?
Importance of a face-to-face interview
The Interview
Questions by the Attorney
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Conflicts
Availability
Experience in similar cases
Other qualifications
Cost
Questions by the Expert
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Schedule
Discovery status
Other experts?
Negotiation status
Cost Management
Cost Management
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How do you get everything you want
and keep your expert happy without
breaking the bank?
Understand How Expert
Charges
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Hourly
Agreed Amount
Blended
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Different people at different rates
Reduced rate plus “top off” after recovery
Avoid appearance that compensation
based on outcome of case
Create a Budget
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Step 1: Know what you want your expert to
do
Step 2: Know when you want your expert to
have things done
Step 3: Agree on scope and staffing of tasks
Step 4: Fill in the blanks
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Cost for each task and when payment will be
made
Milestones
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Plot tasks and deadlines on a time line
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Engagement
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client visit
discovery
checklist
+4 weeks
+2 weeks
report
+12 weeks
Staffing Schedule
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What tasks will expert do personally?
What tasks will expert delegate to support
staff?
Make sure delegation will be cost-effective
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Billing rates only part of the equation
Efficiency and experience are important
Credibility also an issue
Protection of work product may be an issue
Monitor Progress
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Milestone chart and staffing schedule
should be reviewed regularly
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May (probably will) need to be revised as
case develops
Keeps everyone focused and avoids “scope
creep”
Prevents unpleasant surprises
Timing
Timing – When to Retain the
Expert
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Best time: may depend on the case
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Amount at stake
Budget concerns
Complexity of issues
Worst time: last minute
Consulting Expert
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Consider hiring expert as consultant
early in the case
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Plaintiff: before complaint is filed
Defendant: as soon as complaint is served
Make sure scope of engagement clearly
limited
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Specify no testimony in engagement letter
Consulting/Testifying Experts
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Can initially engage expert as
consultant
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Can always expand scope of engagement
to testimony later in the case
Can also engage separate consulting
and testifying experts
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Firewall between them?
Benefits of Early Retention
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Early estimate of amount at stake
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For plaintiff, may affect strategy for
approaching defendant
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Maybe litigation not best option
For defendant, may assist in preparing
counterclaim
Benefits of Early Retention
(cont.)
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Identify facts, theories, potential
problems that might support or defeat
an early motion for summary judgment
Benefits of Early Retention
(cont.)
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Assistance in discovery
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Expert can identify facts that will need to be
established to support damages theory
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Expert can review opponent's discovery responses
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Help prepare interrogatories and requests for production
Help identify areas for additional discovery, motions to
compel, etc.
Expert can assist with fact witness depositions
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Help make sure you ask the right questions and get the
right answers
Disadvantages
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Cost
Expert may turn out to be incompatible
However,
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As to cost, can always hold initial work until
needed
Initial work may avoid chasing wild goose theories
If expert incompatible, better to find out early
Work Product/Discovery
Issues
Attorney Work Product
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“Core work product”
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Documents prepared by attorneys that
contain their mental impressions and
thought processes
Not discoverable
Communicating with Experts
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What is discoverable and what isn’t?
Fed. R. Civ. P. 26
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(a)(2)(B) testifying experts
(b)(4)(B) consulting experts
Communicating with Testifying
Experts
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Fed. R. Civ. P. 26(a)(2)(B) states that an expert
retained to give testimony must prepare a written
report
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The report shall contain a complete statement of all opinions
to be expressed and the basis and reasons therefore; the
data or other information considered by the witness in
forming the opinions; any exhibits to be used as a summary
of or support for the opinions; the qualification of the
witness, including a list of all publications authored by the
witness within the preceding ten years; the compensation to
be paid for the study and testimony; and a listing of any
other cases in which the witness has testified as an expert at
trial or by deposition within the preceding four years.
Non-Substantive
Communications
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Invoices
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Discoverable
Cover letters
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Discoverable
Attorney work product may be excepted
from discovery
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Fed. R. Civ. P. 26(a)(2)(B)
No universal agreement in all circuits
What if Expert Considers Core
Work Product in Forming Opinion?
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Majority rule
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Core work product is discoverable if considered by
a testifying expert
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Regional Airport Authority v. LFG, LLC, 2006 U.S. App
LEXIS 21035 (6th Circuit)
Minority rule
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Core work product protected even when
considered by a testifying expert in forming
opinion
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Ladd Furniture, Inc. v. Ernst & Young, 1998 U.S. Dist.
LEXIS 17345 (M.D.N.C. Aug. 27, 1998)
Work Product Protection and
Non-Testifying Experts
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Fed. R. Civ. P. 26 (b)(4)(B):
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A party may, through interrogatories or by
deposition, discover facts known or opinions held
by an expert who has been retained or specially
employed by another party in anticipation of
litigation or preparation for trial and who is not
expected to be called as a witness at trial, only . .
. upon a showing of exceptional circumstances
under which it is impracticable for the party
seeking discovery to obtain facts or opinions on
the same subject by other means.
Documents Generated by
Expert
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Expert designated to testify
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Discoverable
Expert not expected to be called as
witness
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Limited discovery
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Showing of exceptional circumstances . . .
impracticable to obtain by other means
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Fed. R. Civ. P. 26 (b)(4)(B)
Testifying Expert
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Expert writes it
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Expert considers it
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Discoverable
Discoverable
Expert received it
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Discoverable
Drafts
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Draft expert reports and other
documents prepared by testifying
expert witnesses are discoverable
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Krisa v. Equitable Life Assur. Socy., 196 F.R.D. 254
(M.D. Pa. 2000)
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If your expert witness writes it, it is
discoverable