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That he was paid is not enough reason to invalidate his testimony. Everyone in court that day, the lawyers, the judge, you, were paid. Why not him? If he ind

That he was paid is not enough reason to invalidate his testimony. Everyone in court that day, the lawyers, the judge, you, were paid. Why not him? If he indeed has expertise that would win his party's case, what exactly is wrong with getting paid, even paid handsomely, for his being there? This seems a lawyerly sort of ad hominem to discount expert testimony without directly challenging the evidence.

HWR_14 4y ago
> If he indeed has expertise that would win his party's case, what exactly is wrong with getting paid, even paid handsomely, for his being there? His continuing to be paid depends on him saying what the lawyers want. See also one of the main issues that people have with arbitration (that the companies supply repeat business to the arbiters they choose, so they wouldn't want to rule that hard against the company or the way accounting firms have an incentive to not lose their contracts by siding with the client on questionable choices.
- ghaff 4y ago
  In fairness, one of the things that happens is that expert witnesses get chosen based in part on past record, writings, etc. When I wrote a report, I wasn't pressured to write anything I didn't believe. However, I had previously written a public research note that laid out my take on the case pretty unambiguously.
  - HWR_14 4y ago
    I totally believe that. I don't necessarily think it's as direct as "cross lawyer X, never work for lawyer X". I think past expert testimony is a big part of that past record that lawyer Y will look at, and people who want to become professional expert witnesses know that.
PaulDavisThe1st 4y ago
Expert witness testimony, at least in this case, isn't about evidence. It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up. You've got two choices (at least) as an attorney for the opposing party: one, get into a domain turf war with the "expert" about whether what they've said is correct; two, discount the "expert" personally. The problem with the first approach is that (at least in the case I was describing), there was nothing actually wrong with what the expert witness had said. If it actually was the case that the defendant had infringed on some validly held patents, then the expert's damages estimate was probably pretty accurate. The dilemma is that the defendant's whole case is based on having not infringed and/or the patents being invalid. Consequently, there's zero motivation to get into the details of what the expert said, and every motivation to do something to as much as possible erase it from the minds of the jury.
- ghaff 4y ago
  Perhaps in this case. In the report I worked on though, a decent part of the report was in the vein of, "Even if party $X violated such and such as claimed, each of these damages that opposing expert enumerates is in fact much smaller for reasons $A, $B, and $C. In this case, of course, it may well have been the case that the damages seemed reasonable if the company had indeed violated IP. So the lawyer basically made sure the jury knew the expert was paid but basically move on.
- WaitWaitWha 4y ago
  >It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up. Disagree. The other side have the ability to qualify the expert witness during voir dire [0]. The other side's also have the opportunity to find their expert to counter and bring in expertise. [0]https://en.wikipedia.org/wiki/Voir_dire https://en.wikipedia.org/wiki/Voir_dire
  - PaulDavisThe1st 4y ago
    What I meant was that expert witnesses are not in the courtroom to testify on matters of fact. They are presented (and potentially qualified) as "experts" and are their to tell the court their conclusions about some matter.
    - WaitWaitWha 4y ago
      Thanks for the clarification. > They are presented (and potentially qualified) as "experts" Does this not follow a proper scientific method? The expert draws some conclusion based on some scientific process they performed. The other side can challenge the data, method, chain of custody, record keeping, expertise of anyone working on it, and so on. You keep putting the term expert in quotes. What is the bar of an expert in your mind?
      - ghaff 4y ago
        >The expert draws some conclusion based on some scientific process they performed. Certainly there are cases where expert witnesses are commissioned to conduct some series of tests/analysis and write a report. But tons of other are things like: - Did so and so follow customary industry best practices? - Based on your knowledge of the industry did Company A's actions negatively impact Company B? (Backed up with lots of references.) and so forth.
kayodelycaon 4y ago
Judges are paid by the state. Lawyers already known to be baised. This is expected. I see the issue as juries not understanding the context around paid experts. Paid experts are not impartial, so it is completely valid for a lawyer to discredit them on that basis and it is up to the lawyers who hired the expert to prove their testimony is honest.
nonameiguess 4y ago
As far as I understand, "lawerly ad hominem" is most of what cross-examination is. The jury is free to recognize that impugning the character and/or motives of a witness is only a probabilistic argument that they're lying or wrong, and not a deductive argument.
- daniel-cussen 4y ago
  I believe that "ad hominem" is not actually a fallacy in general. Like anywhere intent is involved. And in math too. You can never take the camera out of the room, if you see the camera taken out of the room that's not the camera, that's a camera, you're looking through *the* camera. "Hidden camera" scenes involve a second hidden camera, only some of the shots are made pointing at the camera, plus the "fools" in pranks that "fall" for hidden camera jokes are paid actors themselves, everyone you see in 2D is an actor. Mirrors aren't quite 2D, it's 3D in practice, a flat decent mirror that was built properly, and looks even when you move from side to side and up and down, and back and forth, that's the real you, that's different. People in general look like they look in the mirror, it's the shitty photos with tiny little cameras that make them look like shit, and often distort the image to neg them, like in 1984 when the tortured Winston goes to look at the cameras, under the effect of drugs, which are allegedly mirrors, plus the put makeup on him, plus the lighting, everything. When I was scouted as a model and went to castings the cameras were invariably bigger than the eye of a squid. A tiny camera can only take a good picture with photoshop, it's super distorted and can't be placed on a phone except for crappy images (like photos of contracts). Anything else is trying to distort distortions into looking right. It's like a straight wire, once bent it can't be straightened again by bending it back, it's never going to be straight again. A camera can only fit on a tripod or around your neck, a camera can't be smaller than a human eye. In fact cameras are based on dissections of eyes, particularly human eyes, in the dead. One flaw is they're projected onto planes, instead of the retinal spheres. There's many other problems. So ad hominem? Eh. Who told you about ad hominem, and what did they want from you when they told you about it? Who put that in the curriculum, and why? I suppose it's taught as an alternative to name-calling and dragging people down like in more raw fighting. So criminals are when they're in crazy arrogance mode continually insulting and degrading their victim as loud as possible. There's also a huge amount of ad hominem masquerading as accusations of ad hominem, like "my ad hominem doesn't count as ad hominem" or "you're not a hominem." Prejudging while forbidding judgment in return, criminality basically. Libel and slander for sure. There's no objectivity. What does no eye see? What does no mind think? This comment is as objective as I think I can be.
Enginerrrd 4y ago
That's deeply naive. Incentives matter to humans. A lot in fact. Ask any lawyer that has hired expert witnesses. Over there entire career, ask them how many times the expert witness they hired did not come to conclusions supporting the side they were hired by. Even amongst lawyers that have hired 100's of experts, that number is usually zero. In theory, an expert should be using their expertise to assess the situation honestly and without bias. In practice, they will use their expertise to present the most credible argument they can think of in support of the side that hired them.
- devchix 4y ago
  Well I went to the same law school my cousin Vinny did, and I'm pretty sure you can disqualify the expert witness by asking questions like, what's the correct ignition timing be on a 1955 Bel Air Chevrolet with a 327 cubic-inch engine and a four-barrel carburetor? You can also have your own expert witness called to directly rebut their expert witness. If expert witnesses are never paid, no one will be an expert witness. What's that world like?
  - pc86 4y ago
    I'm surprised to see it suggested that being unable to immediately recall arcane trivia in a high pressure situation would be a disqualifying feature, but then... gestures broadly at every technical interview. Witnesses are already paid. You can be subpoenaed to present fact or character testimony, and you're required by law to show up (but you're still paid). I'm pretty sure subpoenaing random experts isn't the solution, but $1,500/hr is pretty crazy regardless of your field. Perhaps there should be a system based around licensure where you get paid a market rate rather than 10x, and doing a certain number of hours every year is considered a public service and a requirement for your license, similar to how many attorneys do pro bono work?
    - ghaff 4y ago
      >$1,500/hr is pretty crazy regardless of your field. So that's $3 million/year assuming someone takes pretty much normal US vacations and holidays. And bills 8 hours/day which certainly no lawyer does unless they're working insane hours. So maybe cut that in half. (And leaving aside that you almost certainly can't book a full schedule.) Is $1.5 million/year still a lot of money? Sure. It's also not out of the realm of even non-executive compensation in places like Silicon Valley or even the medical field. And, in practice, most people doing this even those who command the highest sums, are probably doing this much less than 1,000 hours/year. Those who do earn the highest amounts are doing it, like lawyers and consultancies, by billing out associates who earn a lot less than their billable rate.
lupire 4y ago
Expert Witness is Argument From Authority by definition. If the evidence were self-evident, you wouldn't have an Expert Witness. Lies cost more than truth, so the price of testimony matters.
- l33t2328 4y ago
  But we defer to experts all the time in life because it’s impossible to verify evidence yourself in all(or most, or even many) circumstances.
anigbrowl 4y ago
The jurors are free to ignore the lawyers and rely on the expert's testimony. But they're also free to conclude that said expert just provides the desired opinions on demand. I would guess the lack of time invested in performing the analysis counted for as much with the jury as the high fee; patent litigation tends to be long and tedious, and a jury is likely to reflect on the fact that they're being asked to spend much more of their valuable time on listening to and deliberating the competing claims, without being well-compensated themselves. (It's worth recalling that most people don't want or simply can't afford to do jury duty because it barely pays for travel and food expenses; thus juries tend tobe made up of the financially independent or those with accommodating employers. Commercial litigation would look very different if juries were drawn from, say, the boards of firms in some other industrial sector, who were required to commit 1 month a year to dispute resolution on a pro bono basis and would more truly qualify as peers of the disputing parties.) I'm guessing from the gp's description that the estimate of losses was ultimately derived from a lawyerly formula of a sort derived from previous judgments and arguments developed in law review journals, as opposed to an economic history of the business unit that had monetized the patents. If so, the nominally independent analysis is basically just putting a neutral face on a legalistic assessment that was done by counsel for both sides before the expert was hired. lawyerly sort of ad hominem True enough; juries respond to emotional cues, and an arched-eyebrow dismissal is more convincing than whiny remonstration or interrogative bluster. But juries are also emotionally intelligent, and if one party's side is all posture and little substance they're likely to pick up on that.
- PaulDavisThe1st 4y ago
  More generally, lay juries making decisions about patent cases that hinge on arcana like the ways a session could be embedded in a URL and the stateless nature of HTTP is just ... totally fucking absurd. Yes, it's the lawyers' jobs to explain it to the jury so that they can understand it, but sometimes you just have throw you hands up in the air and say "this is absurd, we can't possibly expect you to get this".
  - pclmulqdq 4y ago
    Bench trials are honestly equally absurd, particularly when one party is a big tech company. Judges in the 9th circuit (CA) are known to be extremely favorable to big tech, and the conflicts of interest are obvious - big tech controls the judge's reputation and can offer a lot of future opportunities for people who agree with them on the law. It's like what happens when you sue the New York Times in New York. Juries with competing experts are probably the fairest option, honestly. The people in the jury often don't have a horse in the race. Their job is to go through the elements of the patent and match them up to the supposed infringement and see if everything is there. It's not that hard. Certain technology patents have also been subject to appeals based on what is patentable and what isn't (see Alice vs CLS Bank which invalidated a ton of patents). Those questions are more about technical issues than following the elements.

HWR_14 4y ago

> If he indeed has expertise that would win his party's case, what exactly is wrong with getting paid, even paid handsomely, for his being there? His continuing to be paid depends on him saying what the lawyers want. See also one of the main issues that people have with arbitration (that the companies supply repeat business to the arbiters they choose, so they wouldn't want to rule that hard against the company or the way accounting firms have an incentive to not lose their contracts by siding with the client on questionable choices.

ghaff 4y ago
In fairness, one of the things that happens is that expert witnesses get chosen based in part on past record, writings, etc. When I wrote a report, I wasn't pressured to write anything I didn't believe. However, I had previously written a public research note that laid out my take on the case pretty unambiguously.
- HWR_14 4y ago
  I totally believe that. I don't necessarily think it's as direct as "cross lawyer X, never work for lawyer X". I think past expert testimony is a big part of that past record that lawyer Y will look at, and people who want to become professional expert witnesses know that.

PaulDavisThe1st 4y ago

Expert witness testimony, at least in this case, isn't about evidence. It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up. You've got two choices (at least) as an attorney for the opposing party: one, get into a domain turf war with the "expert" about whether what they've said is correct; two, discount the "expert" personally. The problem with the first approach is that (at least in the case I was describing), there was nothing actually wrong with what the expert witness had said. If it actually was the case that the defendant had infringed on some validly held patents, then the expert's damages estimate was probably pretty accurate. The dilemma is that the defendant's whole case is based on having not infringed and/or the patents being invalid. Consequently, there's zero motivation to get into the details of what the expert said, and every motivation to do something to as much as possible erase it from the minds of the jury.

ghaff 4y ago
Perhaps in this case. In the report I worked on though, a decent part of the report was in the vein of, "Even if party $X violated such and such as claimed, each of these damages that opposing expert enumerates is in fact much smaller for reasons $A, $B, and $C. In this case, of course, it may well have been the case that the damages seemed reasonable if the company had indeed violated IP. So the lawyer basically made sure the jury knew the expert was paid but basically move on.
WaitWaitWha 4y ago
>It's a person, nominally an expert, saying what they think/know and providing some expert-y looking handwaving to back it up. Disagree. The other side have the ability to qualify the expert witness during voir dire [0]. The other side's also have the opportunity to find their expert to counter and bring in expertise. [0]https://en.wikipedia.org/wiki/Voir_dire https://en.wikipedia.org/wiki/Voir_dire
- PaulDavisThe1st 4y ago
  What I meant was that expert witnesses are not in the courtroom to testify on matters of fact. They are presented (and potentially qualified) as "experts" and are their to tell the court their conclusions about some matter.
  - WaitWaitWha 4y ago
    Thanks for the clarification. > They are presented (and potentially qualified) as "experts" Does this not follow a proper scientific method? The expert draws some conclusion based on some scientific process they performed. The other side can challenge the data, method, chain of custody, record keeping, expertise of anyone working on it, and so on. You keep putting the term expert in quotes. What is the bar of an expert in your mind?
    - ghaff 4y ago
      >The expert draws some conclusion based on some scientific process they performed. Certainly there are cases where expert witnesses are commissioned to conduct some series of tests/analysis and write a report. But tons of other are things like: - Did so and so follow customary industry best practices? - Based on your knowledge of the industry did Company A's actions negatively impact Company B? (Backed up with lots of references.) and so forth.

kayodelycaon 4y ago

Judges are paid by the state. Lawyers already known to be baised. This is expected. I see the issue as juries not understanding the context around paid experts. Paid experts are not impartial, so it is completely valid for a lawyer to discredit them on that basis and it is up to the lawyers who hired the expert to prove their testimony is honest.

nonameiguess 4y ago

As far as I understand, "lawerly ad hominem" is most of what cross-examination is. The jury is free to recognize that impugning the character and/or motives of a witness is only a probabilistic argument that they're lying or wrong, and not a deductive argument.

daniel-cussen 4y ago
I believe that "ad hominem" is not actually a fallacy in general. Like anywhere intent is involved. And in math too. You can never take the camera out of the room, if you see the camera taken out of the room that's not the camera, that's a camera, you're looking through *the* camera. "Hidden camera" scenes involve a second hidden camera, only some of the shots are made pointing at the camera, plus the "fools" in pranks that "fall" for hidden camera jokes are paid actors themselves, everyone you see in 2D is an actor. Mirrors aren't quite 2D, it's 3D in practice, a flat decent mirror that was built properly, and looks even when you move from side to side and up and down, and back and forth, that's the real you, that's different. People in general look like they look in the mirror, it's the shitty photos with tiny little cameras that make them look like shit, and often distort the image to neg them, like in 1984 when the tortured Winston goes to look at the cameras, under the effect of drugs, which are allegedly mirrors, plus the put makeup on him, plus the lighting, everything. When I was scouted as a model and went to castings the cameras were invariably bigger than the eye of a squid. A tiny camera can only take a good picture with photoshop, it's super distorted and can't be placed on a phone except for crappy images (like photos of contracts). Anything else is trying to distort distortions into looking right. It's like a straight wire, once bent it can't be straightened again by bending it back, it's never going to be straight again. A camera can only fit on a tripod or around your neck, a camera can't be smaller than a human eye. In fact cameras are based on dissections of eyes, particularly human eyes, in the dead. One flaw is they're projected onto planes, instead of the retinal spheres. There's many other problems. So ad hominem? Eh. Who told you about ad hominem, and what did they want from you when they told you about it? Who put that in the curriculum, and why? I suppose it's taught as an alternative to name-calling and dragging people down like in more raw fighting. So criminals are when they're in crazy arrogance mode continually insulting and degrading their victim as loud as possible. There's also a huge amount of ad hominem masquerading as accusations of ad hominem, like "my ad hominem doesn't count as ad hominem" or "you're not a hominem." Prejudging while forbidding judgment in return, criminality basically. Libel and slander for sure. There's no objectivity. What does no eye see? What does no mind think? This comment is as objective as I think I can be.

Enginerrrd 4y ago

That's deeply naive. Incentives matter to humans. A lot in fact. Ask any lawyer that has hired expert witnesses. Over there entire career, ask them how many times the expert witness they hired did not come to conclusions supporting the side they were hired by. Even amongst lawyers that have hired 100's of experts, that number is usually zero. In theory, an expert should be using their expertise to assess the situation honestly and without bias. In practice, they will use their expertise to present the most credible argument they can think of in support of the side that hired them.

devchix 4y ago
Well I went to the same law school my cousin Vinny did, and I'm pretty sure you can disqualify the expert witness by asking questions like, what's the correct ignition timing be on a 1955 Bel Air Chevrolet with a 327 cubic-inch engine and a four-barrel carburetor? You can also have your own expert witness called to directly rebut their expert witness. If expert witnesses are never paid, no one will be an expert witness. What's that world like?
- pc86 4y ago
  I'm surprised to see it suggested that being unable to immediately recall arcane trivia in a high pressure situation would be a disqualifying feature, but then... gestures broadly at every technical interview. Witnesses are already paid. You can be subpoenaed to present fact or character testimony, and you're required by law to show up (but you're still paid). I'm pretty sure subpoenaing random experts isn't the solution, but $1,500/hr is pretty crazy regardless of your field. Perhaps there should be a system based around licensure where you get paid a market rate rather than 10x, and doing a certain number of hours every year is considered a public service and a requirement for your license, similar to how many attorneys do pro bono work?
  - ghaff 4y ago
    >$1,500/hr is pretty crazy regardless of your field. So that's $3 million/year assuming someone takes pretty much normal US vacations and holidays. And bills 8 hours/day which certainly no lawyer does unless they're working insane hours. So maybe cut that in half. (And leaving aside that you almost certainly can't book a full schedule.) Is $1.5 million/year still a lot of money? Sure. It's also not out of the realm of even non-executive compensation in places like Silicon Valley or even the medical field. And, in practice, most people doing this even those who command the highest sums, are probably doing this much less than 1,000 hours/year. Those who do earn the highest amounts are doing it, like lawyers and consultancies, by billing out associates who earn a lot less than their billable rate.

lupire 4y ago

Expert Witness is Argument From Authority by definition. If the evidence were self-evident, you wouldn't have an Expert Witness. Lies cost more than truth, so the price of testimony matters.

l33t2328 4y ago
But we defer to experts all the time in life because it’s impossible to verify evidence yourself in all(or most, or even many) circumstances.

anigbrowl 4y ago

The jurors are free to ignore the lawyers and rely on the expert's testimony. But they're also free to conclude that said expert just provides the desired opinions on demand. I would guess the lack of time invested in performing the analysis counted for as much with the jury as the high fee; patent litigation tends to be long and tedious, and a jury is likely to reflect on the fact that they're being asked to spend much more of their valuable time on listening to and deliberating the competing claims, without being well-compensated themselves. (It's worth recalling that most people don't want or simply can't afford to do jury duty because it barely pays for travel and food expenses; thus juries tend tobe made up of the financially independent or those with accommodating employers. Commercial litigation would look very different if juries were drawn from, say, the boards of firms in some other industrial sector, who were required to commit 1 month a year to dispute resolution on a pro bono basis and would more truly qualify as peers of the disputing parties.) I'm guessing from the gp's description that the estimate of losses was ultimately derived from a lawyerly formula of a sort derived from previous judgments and arguments developed in law review journals, as opposed to an economic history of the business unit that had monetized the patents. If so, the nominally independent analysis is basically just putting a neutral face on a legalistic assessment that was done by counsel for both sides before the expert was hired. lawyerly sort of ad hominem True enough; juries respond to emotional cues, and an arched-eyebrow dismissal is more convincing than whiny remonstration or interrogative bluster. But juries are also emotionally intelligent, and if one party's side is all posture and little substance they're likely to pick up on that.

PaulDavisThe1st 4y ago
More generally, lay juries making decisions about patent cases that hinge on arcana like the ways a session could be embedded in a URL and the stateless nature of HTTP is just ... totally fucking absurd. Yes, it's the lawyers' jobs to explain it to the jury so that they can understand it, but sometimes you just have throw you hands up in the air and say "this is absurd, we can't possibly expect you to get this".
- pclmulqdq 4y ago
  Bench trials are honestly equally absurd, particularly when one party is a big tech company. Judges in the 9th circuit (CA) are known to be extremely favorable to big tech, and the conflicts of interest are obvious - big tech controls the judge's reputation and can offer a lot of future opportunities for people who agree with them on the law. It's like what happens when you sue the New York Times in New York. Juries with competing experts are probably the fairest option, honestly. The people in the jury often don't have a horse in the race. Their job is to go through the elements of the patent and match them up to the supposed infringement and see if everything is there. It's not that hard. Certain technology patents have also been subject to appeals based on what is patentable and what isn't (see Alice vs CLS Bank which invalidated a ton of patents). Those questions are more about technical issues than following the elements.