In the adversarial legal system of the United States, the existence of two opposing expert witnesses is often taken for granted. With the value of justice so ingrained into American culture, it is no wonder that the idea of a court-appointed expert causes so much controversy.
When the U.K. Supreme Court overturned 400 years of legal precedent earlier this year and ruled that expert witnesses could be sued for negligence, many experts on this side of the pond let out a collective sigh of relief, confident that it couldn’t happen here.
After all, as recently as 1983, the U.S. Supreme Court, in Briscoe v. LaHue, reaffirmed the inviolability of the principle of witness immunity. “A witness’ apprehension of subsequent damages liability might induce two forms of self-censorship,” the court reasoned. “First, witnesses might be reluctant to come forward to testify. … And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.”
Briscoe involved the testimony of a police officer, not an expert. But the opinion was sweeping in its application of immunity to “all persons” who are “integral parts of the judicial process” – witnesses, judges and counsel.
Still, the U.K. decision, Jones v. Kaney, continues to elicit reactions from bloggers and legal commentators in both the U.K. and the U.S. One expert, in an op-ed published in the Canadian legal newspaper Law Times, praised the ruling in Jones, saying he would welcome a similar rule in Canada. “Bring it on,” he wrote.
As it turns out, however, U.S. courts began chipping away at the doctrine of expert immunity well before their U.K. counterpart ever contemplated the question. While witness immunity stands strong in the federal courts, a handful of state courts have lowered the shield that protects experts from liability, allowing them to be sued in actions for professional malpractice.
From patent reform to increased filings, there have been several major developments in patent law this year, including the creation of a 10-year district court patent pilot program.
By Alan Perlman
It’s not often that forensic linguistics makes the news. It’s not nearly as sexy or yucky as the forensics that originates at the murder site or in the pathologist’s lab. There’s actually a scientific book, called Men, Murder, and Maggots, that tells you how to determine when someone was killed, on the basis of the type of parasites that are now feasting on the corpse.
Compared to this, nailing someone by their writing habits is not great entertainment. But it does happen, as reported recently in a New York Times article regarding the authorship of e-mails alleged to have been written by Mark Zuckerberg.
In response to an earlier blog post titled Stealing or Strategizing: Locking Out Experts You Don’t Plan to Use, one of our EliteXperts wrote a comment posing the question, “What would the reactions be if I were to contact opposing counsel to offer my services? What are the ethics as long as I do not share confidential opinions and information? What is the law?”
With two additional states having recently adopted the Daubert standard for the admission of expert testimony, the number of state court systems that follow the federal rule is now at 32. Notably, the latest two states to embrace Daubert – Arizona and Wisconsin – had both explicitly rejected it in the past.
Editor’s Note: This is the second article in a two-part series on coordination between in-house and outside counsel to determine expert needs, establish expectations and locate the best experts. It is based off an article by IMS Vice President of Business Development Bill Hueter that was published in the Summer 2011 In-House Defense Quarterly.
In part one, we wrote about the advantages of coordination between in-house and outside counsel. It allows the client to be more involved in the process and the attorney to benefit from their knowledge. This article will detail exactly how to best coordinate these efforts.
Editor’s Note: This is the first article in a two-part series on coordination between in-house and outside counsel to determine expert needs, establish expectations and locate the best experts. It is based off an article by IMS Vice President of Business Development Bill Hueter that was published in the Summer 2011 In-House Defense Quarterly.
Many attorneys have – admittedly valid – reservations about asking their clients to recommend experts for litigation. There are concerns of discovery, conflicts and preserving the business relationship.
As IP attorney John P. Hutchins points out, “If … it doesn’t work out, there may be bad feelings afterwards.”