How to Be an Effective ChemE Expert Witness in IP Lawsuits: Part 1

This first article of a two-part series describes the role chemical engineers play as expert witnesses in legal disputes and their unique responsibilities in litigations involving intellectual property (IP).

An expert witness is a person permitted to testify at trial due to his or her specialized knowledge in a relevant field. Expert witnesses are paid, professional witnesses, distinguishable from unpaid fact witnesses who have personal knowledge of the relevant events.

There are two types of expert witnesses: court-appointed and party-retained. Court-appointed experts advise the court directly in a purely objective, unbiased manner. They are compensated by the party to the lawsuit by order of the court. Party-retained experts, in comparison, apply their specialized expertise to advocate on behalf of the retaining party and are compensated solely by that party (Figure 1). The party is, in essence, the expert’s client. Because party-retained experts are much more common than court-appointed experts, this article focuses on retained experts.

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▲Figure 1. Party-retained experts are one of two types of expert witnesses (the other being court-appointed). Chemical engineers are commonly employed as party-retained experts in various types of legal disputes. (Visual strategy and design source: LPI.)

As an advocate on behalf of the party retaining your services, it is important to keep an open mind before reaching any conclusions. The U.S. adversarial system of justice relies on the presentation of competing facts and theories to arrive at the truth. In order to effectively present your client’s version of events, you must first understand the client’s needs, gather the material facts, and analyze those facts with the goal of advancing the client’s interests.

At the same time, however, you must be aware of the risk of being viewed by the judge and jury as too partisan. If the judge and jury view you as a mere mouthpiece for your client, they are unlikely to give much weight to your conclusions. One of your primary goals as a retained expert, therefore, is to show the judge and jury that you are applying your technical expertise in a valid, objective, scientifically defensible manner, notwithstanding your apparent bias to assist the party who retained you and is compensating you for your services. To do so, you must consider all the material facts (including facts that might detract from your conclusions), make any assumptions you rely upon clear, and ensure that your opinions stay within the bounds of your expertise and scientific principles.

Besides serving as expert witnesses, some experts are retained as non-testifying consultants who do background work, such as helping legal counsel test theories and acting as a sounding board to consider contrary arguments. It is not uncommon to be initially retained as a non-testifying consultant in the early stages of a legal proceeding before later being asked to act as an expert witness at trial.

Chemical engineers are commonly retained as expert witnesses in various types of legal disputes. This article focuses on lawsuits involving accusations of patent or trade secret infringement — two types of intellectual property (IP). Much of the discussion, however, is broadly applicable to other lawsuit types, such as tort, breach of contract, environmental, and regulatory enforcement lawsuits...