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The Misuse of Patent Law Experts: An Embarrassment to Our Profession
What role should patent law experts play in modern litigation? Rule 702 of the Federal Rules of Evidence allows experts to testify about their opinions when such testimony will assist the trier of fact. The testimony must be “based upon sufficient facts or data,” must be “the product of reliable principles and methods,” and the witness must have “applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702.
The comments by the Advisory Committee for the Rules of Evidence in 2000 give a list of factors that can be used to measure the reliability of expert testimony:
- Is the expert testifying about what he does for a living?
- Are the expert's conclusions logically related to his premise?
- Has the expert considered alternative explanations?
- Is the expert being as careful in his testimony as he would be in his profession?
- Is the expert's field of expertise known for reaching reliable results?
Good guidelines. But when I apply these guidelines to patent law experts I have seen, almost all of them fail to pass these tests. That systematic failure to provide meaningful evidence in a reliable way indicates that most patent law experts should not be permitted to testify.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.