Expert Witnesses: Worth the Time and Money?

By Jill StarbuckPellegrino & Associates

Lawsuits can be extremely time consuming and expensive. They require considerable time for preparation, conducting trials, and follow-up procedures. Plaintiffs and defendants spend tremendous amounts of money to pay for the expensive fees of lawyers and other court costs. For cases that involve expert witnesses, expenses can rise exponentially. In fact, in a recent lawsuit between Apple and Samsung, Apple paid $1.75 million[1] for just one of the expert witnesses that appeared during trial—a specialist in patent infringement cases. Other experts in the trial commanded tens of thousands of dollars with hourly rates ranging between $400 and $625. Why so much? For one thing, “expert” implies that the witness is more familiar with the subject than others skilled in the art. In comparison, you wouldn’t want to go to an intern for a medical diagnosis. You’d probably want a specialist or an “expert” in the field. While a visit to a specialist generally costs more than a visit to a general practitioner, no price is too much for ease of mind.

While specialists or experts are generally considered more knowledgeable in their field, there are typically others who can provide many of the same services. However, for a life-threatening illness, would you go to the best doctor or to a mediocre doctor? In a case worth billions of dollars, would you resort to a mediocre witness or an expert witness? Whether you are the defendant or the plaintiff, hiring an expert witness is a good idea. There may be upfront monetary costs associated with hiring an expert witness, but the outcome could be worthwhile. An expert witness can provide you with guidance during the trial and make sure the facts in your case are properly communicated during the legal process. An expert witness can even help you win a case.

Most experts spend countless hours and dollars educating themselves to be the best in their fields. For a specific lawsuit, they have to spend many hours learning about the case, dissecting it, researching it, and coming up with a credible and defensible solution. In the recent Apple-Samsung case, a couple of the experts spent 400 or more hours on the case. That’s ten weeks of work for an average employee! For two and a half months’ worth of work, these experts were consumed by the case. The time it took them to work on this one specific case may have taken them away from their daily jobs.

But why not do your own homework and plead the case without expert witnesses? It’s because every side has its own version of a story. Expert witnesses are typically convincing and support their comments with reliable resources. The best expert witnesses are unbiased, which is why they are often needed in the courtroom where tension is high among the plaintiffs and defendants. Furthermore, when it comes to intellectual property (IP), finding someone to provide a credible valuation can be difficult. Few have the experience and knowledge it takes to perform a valuation on intangible assets. Therefore, an expert witness in this field is likely your best bet for a reliable source regarding an IP case.

It can take tremendous time to conduct an IP valuation. An IP valuation analyst must review all of the IP, which can be quite complex, the markets associated with the IP, and competitors in the field; discover advantages and risks; calculate the economic life; and much more. For some inventions, it can take thousands of patents to cover one technical or design aspect. This means that an IP valuation analyst could spend considerable time just reviewing the patents. However, done properly, IP valuations provide strong evidence in a court of law.

Although time and money are significant factors for hiring an expert witness, most courtroom audiences respect and trust expert witness testimony. Therefore, expert witnesses play a crucial role in courtroom proceedings. Their findings and testimony can actually make or break a decision in the courtroom.


ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN 

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