Whether the case is in federal or state court, or before the Trademark Trial and Appeal Board (TTAB), can play an important role in determining whether the costs are justified. Thoroughly analyse the evidence to determine whether retaining an expert is worthwhile. For instance, where you have an extremely strong case – such as one involving a defendant that blatantly counterfeited your client’s mark – the cost of an expert might outweigh the benefit of his or her testimony. Many require a retainer and nearly all charge by the hour, with rates ranging up to $1,000 an hour Type of caseĮven if your client can afford an expert, your case might not require expert testimony. Ensuring that your client has a realistic understanding of these costs – preferably as a result of a detailed budget provided at the outset of the case – is an important first step.Įxpert witnesses are not cheap. It is not unusual for costs to exceed $50,000 from selection through to trial. Experts typically charge not just for file review and preparation of their report, but also for time spent testifying at deposition and at trial. Many require a retainer and nearly all charge by the hour, with rates ranging from $200 to $1,000 an hour, depending on the topic and the witness’s expertise. Regardless of whether you are a private practitioner or an in-house counsel, this will invariably be the first (and perhaps last) question. In considering whether and how to retain an expert, a number of factors should be kept in mind. It should be asked and thoroughly discussed as early as possible in the case, but certainly no later than three months before the deadline for disclosure of expert testimony so that you are not left scrambling for an expert at the last minute. Whether to employ an expert witness is one of the more important questions that a trademark practitioner can pose to his or her client. Expert witnesses can provide valuable assistance to judges and juries in evaluating these issues, and can help to lay a foundation for your case. Numerous other factual issues can present themselves in trademark cases, such as whether a mark has become generic, economic analyses of lost sales and the distinctiveness or fame (or lack thereof) of a mark. Each of the 13 federal circuit courts has its own list of non-exclusive likelihood-of-confusion factors to be analysed by a judge or jury, ranging from just six factors in the Eighth and 10th Circuits to a whopping 13 in the Federal Circuit. Although advanced technology solutions have been developed for legal research, ediscovery and case management expert witness research is still a feral and largely untamed workflow.Trademark law can be confusing. Thousands of litigation professionals, including attorneys, law librarians and paralegals, were invited to complete the survey, with 580 actual respondents. The nationwide survey was conducted by email in late 2017 and early 2018. Today Courtroom Insight, Daubert Tracker and Expert Witness Profiler are releasing the results of a new survey which was “developed to better understand commonly used expert witness research and retention techniques among litigation professionals.” Every law firm with a litigation practice is aware of the pain points associated with identifying, researching and validating experts.
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