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ExpertNavigating through the abundance of information contained within an expert’s CV, can be both a difficult and time-consuming process. In addition to prior experience and level or degree of education, there are a variety of other factors that can greatly contribute to the overall level of expertise, such as certifications, licenses, publications, memberships, affiliations, awards, and general reputation in the community. By understanding some basic assessment principles, practitioners can more easily determine the value and significance of a particular professional designation, credential, or other qualification associated with an expert.

Certifications

There are many potential certifications that an expert can acquire to demonstrate their expertise in a particular discipline area. While it is unnecessary to attempt to set forth an endless list of potential certifications and the value of each, it is perhaps more practical to provide some guiding principles that can enable attorneys to properly evaluate any certification.

The first step in assessing a certification held by an expert, is identification of the certifying entity, whether organization, association, institution, or otherwise. Practitioners should then examine the value and significance that this certifying entity holds within a particular field, industry, or expert discipline area. For example, has the certifying entity gained national or international recognition as a necessary, customary, and/or acceptable standard used for establishing and validating expertise in a particular area? In other words, is one entity the primary source of certification for a discipline area, or are there other conventional methods, sources, or types of certification that equally valuable?

Another helpful consideration in assessing expert certifications, is examining the criteria an expert must meet in order to become certified. Many certifications require an educational degree in a specific field, as well as a minimum number of years of experience sufficient enough to demonstrate active and consistent participation in a discipline area. In addition to examination requirements, some certifications require a written report or professional paper that has either been published or accepted for publication by a professional journal.

In some cases, an expert must already possess one or more specified certifications, in order to meet eligibility requirements for further certification. Some certifications processes even go a step further, by requiring references and/or letters of recommendation. As a general rule, the more stringent the certification criteria, the more valuable the certification will be to the process of identifying and qualifying an expert.

Licenses

Much of the criteria used to evaluate an expert’s certification, can also be used in examining a particular license held by an expert. However, in contrast to certifications, the benefit, value, and necessity of licensing in a specific area, is most commonly limited to two key scenarios. First, a professional license may have served as a foundational basis for expertise—in other words the license is associated with prior employment or experience that contributed to and eventually led an individual to become an expert witness.

The second common scenario in which licensing can play a critical role is where an expert is engaged for a limited purpose, such as assessing the validity of a claim or dispute, or providing testimony on a matter directly related to a certain profession. For example, in cases where either a potential claim or issue in dispute, hinges solely upon the procedures, techniques, methods, or general practices employed by an individual licensed in a specific field, then it may be necessary to select an expert that is licensed in that same field.

Publications

As stated earlier, published work may be a prerequisite to the attainment of some certifications. In some cases, educational institutes of higher learning will also require a professional, technical and/or analytical paper, report, thesis, manuscript, dissertation, or the like, that meets or exceeds a level of quality acceptable for publication. It is important to distinguish between scholarly sources of published material, as opposed to other means of public dissemination having a lesser value or inconsequential significance.

An expert’s published material should be evaluated in a manner similar to the manner in which certification are assessed based upon the repute of the certifying entity. In other words, practitioners should examine the value of the source within a particular field. A useful way for practitioners to determine the value of a publication is by considering the manner in which sources are generally cited in order of their authoritative weight, significance and/or importance.

In accordance with assessing the quality of published materials, be careful to pay close attention to any inferences gained from an expert that has numerous publications. For example, has the expert authored multiple articles that cite to his own prior publications, or have sufficient primary and valuable secondary sources been utilized throughout, and in an appropriately supportive manner. In short, quality of publications is far more important than quantity.

Memberships & Affiliations & Awards

As you view an expert’s detailed list of credentials, you might notice a number of items listed within his or her CV that may be difficult to impute a value upon. Similar methods can be used to assess memberships and affiliations. One manner of assessment is by simply reviewing the requirements necessary to attain the credential status listed. An example, is payment the only prerequisite, or is more required? Also, what was the expert’s level of participation or involvement with the entity or organization? In addition, what features, resources, benefits, and/or opportunities does a particular membership or affiliation offer?

With memberships and affiliations in particular, it is important to differentiate between ‘filler’ content contained within an expert’s CV, and items having a logical correlation with the level of expertise. This is not to say, that an expert whom provides an extensive list of memberships and affiliations, should be exempted as a potential candidate. Rather memberships and affiliations should be considered as ‘finishing touches’ that compliment an expert’s other qualifying features. Often, an expert may be a member or affiliate of an entity or organization, but may have also served as an event speaker, or authored published content.

In some cases, membership or affiliation may occur as a result of, or in conjunction with, recognition received through an expert’s experience, efforts, and/or achievements. Again, it is helpful to examine the qualifying factors associated with the receipt of a particular award. For example examine both nomination and selection processes—Who can nominate an individual?; What are the perquisites and procedures involved?; and What does the selection process entail?

Reputation in the Community

For highly seasoned practitioners, gaging an expert’s overall or general reputation within his or her community of peers, can often be accomplished through a cursory view of the expert’s CV. Veteran trial attorneys generally know the value and significance of each item listed in an expert’s CV, and therefore know precisely what they are looking for. For newer attorneys, assessing an expert’s reputation is more effectively achieved through a careful analysis of each component of an expert’s credentials.

It is not uncommon for an attorney to perform a background search on an expert, in anticipation that a party opponent will do the same. Exclusion issues aside, the reputation or character of a witness can weigh heavily on opinions and beliefs reached by juror members. No practitioner wants to find themselves in a position where previously unknown information regarding the character or reputation of their key expert, results in an opponent presenting evidence to the jury which attacks or discredits the reputation, peer acceptance, or general reliability of an expert. Always keep in mind that, despite successful objections to an opponent’s inquiry during cross examination of an expert, suggestions may have already been implanted upon the jury.

Conclusion

There are a vast array of credentials that can be offered by an expert to demonstrate their level of expertise. Consequently, it is essential that practitioners acknowledge the benefit of possessing the ability to effectively identify all valuable indicators associated with an expert’s capability, preparedness, knowledge, skill, proficiency, and experience, whether on a limited issue or within a particular field, area, or discipline.

By: Alicia McKnight, J.D.


Landfill zoningAmerican Jurisprudence states that it is common to use expert witness testimony at zoning board of appeals hearings, and courts have held that an administrative agency such as a zoning board of appeals can't disregard competent expert testimony and rely on its own knowledge on issues which the board members have no expertise.  However, representations of lay witnesses don't necessarily have to be accepted.

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Free initial consultationThe purpose of the free initial discussion is to determine if and how an expert witness can help you in clarifying the technical and scientific issues, thus giving you the advantage for your case.  The initial conversation with experts can help you determine if you have the right expert discipline in mind.  The attorney can benefit by gaining better technical knowledge or clarification on the case without obligation.

The length of the initial discussion varies greatly depending on the expert and the type of case involved.  Some experts limit the initial phone conversation to 30 minutes while others are more flexible.   For example, medical doctors might limit the initial phone call to 15 minutes with an attorney on a personal injury matter.  On the other hand, a software engineer expert witness might spend over an hour on the phone with the patent attorney for a major patent infringement case.

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An attorney complied with Federal Rules of Evidence, gave disclosure of his expert witness, including any required written report or statement in lieu of a written report, and the case is moving towards a trial date certain.

Unfortunately, his expert witness unexpected passed away.  Such a statistically improbable event can, and does, happen.  An example is the high profile patent infringement case, Apple v. Samsung, where Apple’s initial damage expert witness passed away.

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Patent License AgreementAccording to data provided in PWC’s 2012 Patent Litigation Study, there was a decline in median damage award amounts of more than 50% in patent infringement disputes from the period between 2001 to 2005 and the period between 2006 to 2011—from $8.7 million to $4 million, respectively. What is most intriguing about this data is that there has been neither a decline in patent litigation, nor a decline in patent applicants. In fact, both have increased at a substantially similar rate.

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Calculating damages for royaltiesDamages for reasonable royalties, in comparison to damages for lost profits, generally correspond to an assumption based upon what the parties would have agreed upon if they had negotiated a royalty amount prior to an infringement. This concept is referred to generally as ‘hypothetical negotiation.’ There are several techniques, both using the hypothetical negotiation approach, as well as other more analytical based approaches, that have been used in prior cases for the calculation of reasonable royalty damages in patent infringement matters, including the 25 percent rule of thumb, Georgia-Pacific factors, and the Nash Bargaining Solution. In recent years, however, the techniques employed by experts in the calculation of royalty damages in patent infringement disputes, have been subject to heightened judicial scrutiny.

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Royalties in a cash bagCompensatory damages in patent infringement cases are generally based upon reasonable royalties, lost profits, price erosion, and in some cases, a combination. Pursuant to 35 U.S.C. 284, which provides in part, “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.” As such, in cases where a claimant can prove, or elects to prove lost profits, this method will be applied. However, in matters where a claimant cannot prove, or elects not to prove lost profits, compensatory damages can be assessed based upon reasonable royalties.

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Patents and damage calculationsFor more than half a century, the U.S. patent system has been the subject of very little congressional reform. However, with the rise in patent litigation over recent years, the need for system improvement, restructuring, and modification was addressed by Congress in 2011 with the enactment of the Leahy Smith America Invents Act (AIA). Notably absent from such reform, though, was the presence of directorial principles to address issues concerning damage calculations in patent infringement disputes.

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Expert consultationWhen litigating any case requiring the assistance of an expert, it is important to find the right expert as early in the case as possible. The expert will need to prepare for discovery and depositions, and can help the attorney prepare his or her discovery requests and questions for opposing witnesses. In complex cases, sometimes it is a good idea to retain an expert to act not as a witness, but as a consultant to help prepare the case, in addition to hiring an expert witness.

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Hammer and stethoscope - imagery for medical malpracticeWhen handling a medical malpractice (or “MedMal”) case, finding the right medical expert should be an attorney's top priority. Medical malpractice occurs when a health care provider is negligent, whether by act or omission, in the provision of treatment or care to a patient. The treatment is considered negligent when it falls below the standard of care that would be exercised by a reasonably prudent medical professional and results in injury or death to the patient.  Identifying the standard of care is critical in these cases, so a qualified medical expert witness is the key to proving a medical malpractice case. In fact, some states even require that legal counsel provide a statement of merit before filing a medical malpractice claim on behalf of a client. For these reasons, finding the right medical expert witness should be the first step for a MedMal attorney when taking on a new case.

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ForensisGroup articles provide information about legal matters related to the expert witness industry. Legal information is not the same as legal advice. While ForensisGroup goes to great lengths to ensure that the information it offers is useful and accurate, we always recommend that you consult a professional before acting on any legal information read on the Internet.

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