As civil litigators, we often focus on the importance of having an expert testify in order to demonstrate why our client should prevail. To prove whether a heart surgeon’s efforts met the minimum standards required in his field, you’d want the opinion of an expert in heart surgery.

Vince Lombardi notwithstanding, in civil litigation winning isn’t the only thing. It’s the first thing. It’s an important thing. But it is far from the only thing.  It would be a pyrrhic victory indeed to win on negligence but be awarded a dollar in damages.


You’d think that would be the second lesson in the training of a civil litigator. After all, since many of us are compensated based on a contingency, and that contingency is typically a percentage of the recovery, one would think that uppermost in every plaintiff’s attorney’s mind is “how much.”  Alas, it appears that some attorneys and/or their clients cut some corners and rely exclusively upon the good graces of the court to determine the appropriate damages.

In the recent case of Unicom Monitoring, LLC v. Cencom, Inc. et al. (Civil Action No. 06-1166 [MLC], United States District Court for the District of New Jersey), everything was going swimmingly for plaintiff Unicom. In a lawsuit in which they claimed that the defendant infringed upon one of their patents, Unicom made a successful bid for summary judgment. A rare event indeed, and one that should have been cause for great celebration.  But as I said before, winning is not the only thing when it comes to litigation. The question of “how much” has to be answered.

Unicom informally informed the court that the reasonable royalty to provide a basis for damages was 30% of the gross sale of the applicable product. No supporting affidavit from a patent expert or a disinterested third party industry expert to inform the court what the appropriate measure of damages should be; just the confident voice of the plaintiff’s attorney that this was basically the right number.

It is a simple thing for a judge to assess damages in simple cases, such as misappropriation of funds, or a replevin action. But this case involved the value of a patent and the amount of money the plaintiff would have made had the defendant properly licensed the right to sell the product. What does a license cost? Well, it depends on the patent, right? It depends on the product, right? It depends on the standards of the industry. And an attorney standing at the plaintiff’s table in court cannot simply swag (“some wild a— guess”) an answer.

And so the judge decided that absent a patent or industry expert, there was no reasonable means to determine damages, and thus awarded nothing.  Ouch.

I don’t know why the plaintiff decided not to employ the services of an expert, but I’ll assume it was a mean of cutting costs. The result?  The plaintiff ends up with a win without an award. Personally, I’d prefer losing the case but winning the money to winning the case but not getting a penny.

But what about the principle you ask? At least the plaintiff can crow about the fact that he was right when he claimed that he was wronged! Right? Well, I was once told that if a new client suggested that he was pursuing the case based on the principle of the matter and not for the money, that I should double our fee!  Sound advice; words to live by. Winning isn’t merely a principle. It’s not just a goal. It’s not even the only thing.  It’s the first thing, and without an expert witness to assess damages to the satisfaction of the court, the victory isn’t worth the paper the decision was written on.