Expert Witness Ethics and Economics: Unpacking the Federal Circuit’s En Banc Review of Damages Testimony in EcoFactor v. Google
Patent – Patently-O 2024-12-04
Summary:
by Dennis Crouch
This is a post about damages expert testimony and the pending en banc case of EcoFactor v. Google. But, before delving into those details I wanted to first provide a personal anecdote -- my experience with expert witnessing.
My personal experience with expert witnessing has been quite limited but instructive. While expert witnesses are charged with providing truthful and complete testimony, they are inevitably selected and compensated based upon their predicted ability to support a particular party's position. Although my compensation wasn't directly contingent on favorable testimony, I recognized that future engagements would depend on my perceived effectiveness as an advocate. I started getting an icky feeling - a strong tug on my conscience. I particularly recall the internal pull to shade the truth in the client's favor and even began to think of the client as "my client." That is an ethical problem. The expert witness is expected to serve as an independent advisor to the court, providing objective analysis based solely on the facts and their expertise. This fundamental tension between duty to the court and financial incentives ultimately led me to step away from expert witnessing entirely.