Excerpted from SEAK’s DVD and Course: How to Excel as an Expert Witness in Patent Cases: Special Techniques
My name is Steve Babitsky. I’m president of SEAK. I’m here with my partner, James Mangraviti, and we’re going to talking about expert witness depositions. And specifically we’ll be talking about fees. One of the things that comes up over and over again, in depositions, is the amount that the expert witness has been paid. Expert witnesses to need to be comfortable with their answers, need to have answers that have credibility. So we’re going to do a demonstration with Jim about what happens when you’re asked about expert witness fees, and how that could impact your career, as an expert witness. Mr. Mangraviti, you’re a patent expert, correct?
James Mangraviti: Correct.
Steve Babitsky: And you charge $600 an hour?
James Mangraviti: That’s right.
Steve Babitsky: And you’ve testified for this defendant on more than one occasion, correct?
James Mangraviti: That’s correct.
Steve Babitsky: And if I told you that through discovery we’ve learned that you’ve testified for this defendant 14 or 15 times, over the past 3 years, would that number be correct?
James Mangraviti: Sounds about right.
Steve Babitsky: Now over the past 15 years, in each case in which this defendant was accused of patent infringement, it was your opinion that there was no patent infringement. Correct?
James Mangraviti: That’s not true. It’s been the last 3 years, not the last 15 years.
Steve Babitsky: Excuse me. Over the last three years, you’ve testified, and each of the cases where they are accused of infringing patents, it was your testimony that they did not infringe the patent?
James Mangraviti: Correct.
Steve Babitsky: And in each time you were paid a substantial amount of money, correct?
James Mangraviti: I was paid $600 an hour.
Steve Babitsky: Now, in this case, do you know how much you’ve been paid today, approximately?
James Mangraviti: Exactly, no. Approximately, maybe.
Steve Babitsky: Okay. And what is your best estimate.
James Mangraviti: Ballpark? Maybe $300,000.
Steve Babitsky: And in case number one, do you know how much you were paid?
James Mangraviti: I don’t have the figures in front of me. That was three years ago.
Steve Babitsky: You do know approximately, sir, how much money you’ve been paid over the last three years, by the same defendant, correct?
James Mangraviti: The aggregate number, you had us pull together as a discovery request, so that number I do know, yes.
Steve Babitsky: And correct me if I’m wrong, that number is $6 million. Correct?
James Mangraviti: Correct. They’re big cases.
Steve Babitsky: So as you sit here today, you’ve been paid $6 million by this same defendant, testifying over and over again, that they did not infringe patents. Correct?
James Mangraviti: Correct.
Steve Babitsky: And of course, you’re still an impartial expert witness, correct?
James Mangraviti: I call them like I see them, counselor.
Steve Babitsky: Except that in each and every case, you always see them the same way. Correct? In each and every case that you’ve testified for this defendant, 15 times, 3 years, $6 million, always the same opinion, no infringement. Correct?
James Mangraviti: That’s where the facts lie in those cases.
Steve Babitsky: $6 million, 3 years, 15 cases, no infringement.
James Mangraviti: Those are the facts.
Steve Babitsky: Thank you, sir. Okay. So what do we see in this kind of a case? What we see is an expert witness, who’s taken a lot of work from one client. And that’s a potential problem, in terms of bias. When we actually have cases like this, what actually happens in trials in these cases, is that the lawyer cross-examining the expert, sometimes will bypass the science, bypass the technology, and do their $6 million man, cross-examination.
They’ll put up, and that’s what they did in these cases. They’ll put all 14 cases, put the name of the case, and put the amount of money the expert was paid. And then total it all up and put $6 million on the board. When the jury sees this, and a jury hears this, there’s a serious question as to whether or not that expert has any impartiality and, even more importantly, has any credibility. So the take-away lesson in these kinds of cases, be very cautious in taking too much work from one client, and be prepared to be cross-examined about the fees you’ve been paid in these cases.
James Mangraviti: Steve, what is SEAK, and how does SEAK help expert witnesses?
Steve Babitsky: SEAK is a testifying training company, and what we do is, we provide many services for expert witnesses with regard to depositions, and other areas of testimony. We have conferences and seminars that we run throughout the year, throughout the country. We also have books on depositions and cross-examination, which people can look at on our web site. We have a deposition outline, which people can access for free, at no charge, at testifyingtraining.com.
And also, what we’ve been talking about before, when expert witnesses find out that retaining counsel will not properly prepare them for the deposition, and when they know they have a challenging deposition coming up, what they can do is, they can contact myself, or you, Jim, or Nadine, at our company, and we can work with them one-on-one to go over their concerns, their issues, and make sure that they excel at their deposition.
James Mangraviti: Thank you, very much.