Intellectual Property Rights (IPR)

Intellectual Property Rights (IPR)

The Agreement sets out minimum standards to be adopted by the parties, though they are free to provide higher standards of protection. A transition period of five years is available to all developing countries to give effect to the provisions of the TRIPS Agreement. This period ended on 1.1.2000. No transitional period is available, however, for grant of national treatment and most-favoured-nation treatment. Countries that did not provide product patents in certain areas of technology as on 1.1.1995, can delay the grant of product patents in those areas for another five years i.e. upto 1.1.2005.

Where a country does not make available patent protection for pharmaceutical and agricultural chemical products as on 1.1.1995, they have to provide a means for accepting applications for such inventions (mailbox), apply applicable priority rights and provide exclusive marketing rights (EMRs) for such products. The EMRs have to be provided in India only if a set of conditions have been met, i.e. where a patent application has been filed after 1.1.1995 in any WTO Member, patent and marketing approval granted in that Member country, an application has been filed in the mailbox in India and marketing approval obtained in India. The EMR is available for five years from grant or till the patent is granted or rejected, whichever is earlier. The Patent (Amendment) Act, 1999 was passed in March 1999 to provide for mailbox and EMR facility.

Understanding the Legal Fee Agreement

Finding the "right lawyer" to represent you is a challenging process describe in the companion to this article, How to Hire the "Right Lawyer": Consumers' Rights in the Legal Marketplace. Once you have found the"right lawyer," you will want a written fee agreement explaining what you want the lawyer to do, what the lawyer has promised to do for you, and what it is going to cost.

Unless you sign a written fee agreement at the outset, the probability of having an amicable conclusion to your case and to your relationship with your lawyer is very close to zero. If someone wants to do business on a handshake, expect the other hand will be in your pocket.

Only a fool hires a lawyer without a written fee agreement. Good lawyers know this and always explain your obligations and theirs in a document you can read and understand. Only after you understand the agreement will you be asked to sign and along with your lawyer confirm your understanding. So, always ask for a copy of the attorney's fee agreement at your first meeting. As with all documents, make sure that you understand it fully before you sign it. No reputable attorney will pressure you to accept a fee agreement on the spot. If he/she does, find another lawyer.

And, do not fail to understand that every attorney's fee agreement is different. There is no such thing as a "standard agreement." You will be signing a document that binds you and the lawyer. Make sure you understand every word, what it says, and what it does not say. Before you sign any contract, make sure you understand the following general advice which is intended to provide you with a general background of what you can expect when you hire a lawyer.

The important operative words in this case are "you" and "hire." The lawyer is a professional, but you are the boss and the fee agreement is the contract of employment explaining the duties of both sides. Remember, you are hiring the lawyer and the lawyer is deciding both what kind of work you need performed and what kind of boss you will be.

More Maxims and Guidelines for Testifying in Court

The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court

Ten years ago I read Dr. Brodsky's first expert book aqnd it was enjoyable and to the point. As a forensic psychologist having done many cases I find his new book The Expert Expert entertaining yet poignant when covering the issues and advice offered. "The Paint by Numbers" metaphore is critical for the the practicing professional. This book will be a valuable and useful addition to the mental health practitioner's library

...for anyone who is involved in legal proceedings, professionally or otherwise. Brodsky's latest installment, based on his obviously extensive experience and insights, is replete with useful info for both those who testify and those who solicit expert testimony. At the same time, it's marvelously well written and entertaining and hard to put down once you start reading it. Brodksy has clearly done it again, and let's hope there's a third installment in the works.

Expert Witness Training

Expert Witness Training - Summary
Courts have high expectations of expert witnesses. The evidence they give should be seen as professional, impartial and communicated in easy to understand terms.

Expert witness training - aim
To give an awareness of the legal system, courtroom procedures and first hand experience of giving evidence in Magistrates Court and Crown Court.

Automotive Fire Analysis: An Engineering Approach

Automobiles can be described as nothing more than sofas mounted on speeding gas cans. It is no surprise, then, that they occasionally catch on fire. However, automotive fire investigation is a field that is often overlooked and yet it is an important part of determining who is responsible for the damages. Was the fire caused by a design defect? Is the manufacturer responsible? Did the owner or someone else intentionally set the fire? The answers to these questions are the basis of any insurance claim or lawsuit. However, these answers are not always easy to obtain.

The author of Automotive Fire Analysis: An Engineering Approach points out the common problems with the way automotive fires are investigated. He then discusses the proper techniques of fire analysis. This book will show you what to look for when investigating arson, how to tell the difference between flame-resistant plastics and the plastics that look identical but are flammable, what types of flammable liquids are in cars and how they burn, and much more.

The book also covers the important topic of the engineer in the courtroom and has valuable tips for any engineer who is testifying as an expert witness. It contains useful information on proper investigation techniques, scene photography and forensic tools.

Additional topics include:

The history of codes and standards
Fire behavior
Exhaust system fires
Electric system fires
Add-on and optional equipment
Plastics

Expert Witness Tips - Part 2

If you are inexperienced as an expert witness, you should know the following for deposition:

Know the legal issues. Speak with your client about the legal issues, and get comfortable with the legal terminology for your case.

Only one person may speak at a time. Everything you say at a deposition is being transcribed. The court reporter cannot make a good record when people interrupt each other or talk at the same time.

Only answer the question that was asked. Ordinarily, after you have answered the specific question that you were asked, you will not want to volunteer any additional information. Even if opposing counsel sits silently and seems to expect you to say more, don't fall into that trap. If opposing counsel wants more information, he will ask a follow-up question. Get used to silence even if it makes you uncomfortable -- it is your job to answer questions, not to fill silence.

Think before you answer questions. Whether on direct examination or cross-examination, think before you speak. It is almost always better for there to be a short pause before you answer a question than for you to give a bad answer.

You will be asked "hypothetical questions," which may be unfair. Opposing counsel may ask you to assume facts, and explain how your opinion would change if those facts were true. Do not assume that the facts are true -- the attorney may be trying to confuse you, or make you doubt your findings.

It is okay to answer, "I don't know." You may be surprised at a deposition. I heard a toxicologist complain that he was asked how his findings would be affected on the basis of a source of contamination that he learned about for the first time during his deposition. He was flustered, and testified that the contamination "could have a substantial effect" on his conclusions. When he calmed down back at his office, and analyzed the new information, he found that the effect was in fact minimal. But it was too late for him to fix his testimony and his client lost confidence in his ability to testify. The case settled for less than it was worth and he had to fight his client to get paid. Had he answered, "I don't know," or, "The analysis is complex, and I will have to perform a new set of calculations before I can answer that question," he would have avoided a costly mistake.

Do not overstate your client's position. An overstatement can devastate your credibility.

Pay close attention to questions. If you don't understand a question, ask for it to be repeated. You cannot help your client by answering a question that you do not understand.

You were not hired to impress people. You were hired to persuade people. It may be possible to do both, but if you must choose between looking impressive and being likable, it is better to be liked. You should think of yourself as an personable teacher, not as the ultimate arbiter of fact.

Be Careful With "Terms of Art". Most professions use common words to mean something other than what a layperson would understand the word to be. Make sure you understand the legal terms of art the lawyers and judge in your case may use, and make sure that the client law firm understands the terms of art that you may be using as you explain your case. Be alert for possible confusion, and be prepared to explain any terms of art that you use during testimony rather than creating a possible ambiguity.

Try to make your testimony understandable, and avoid technical jargon, but do not be imprecise. If you are testifying about an "adhesive" failure, you will not ordinarily want to refer to the adhesive as "glue" without first making a clear record of the differences between an "adhesive" and "glue," and explaining that you are using the wrong term to make your testimony more understandable. Otherwise, you can expect opposing counsel to use your testimony against you, to argue that you don't know the difference between "glue" and an "adhesive."

Don't follow opposing counsel's lead, if he is leading you astray. Staying with the "adhesive failure" example, opposing counsel may repeatedly refer to the adhesive as "glue," in the hope that you will follow his lead. The short-term goal is to trick you into believing he is unsophisticated about the scientific issues, and the long-term goal is to be able to argue that you don't know the difference between "glue" and an "adhesive." Make a record, early in the questioning, that the substance at issue was an "adhesive," and that you are assuming that the references to "glue" are in fact references to the adhesive.

Listen for "red flag" questions. If opposing counsel asks you a question that sounds like "legalese," it may be an effort to trick you into making a damaging concession. If you know the legal issues and standards governing the litigation, you should be able to avoid this type of trap.

When it is possible to be definite, be definite. If you always start an answer with "I believe" or "In my opinion," the effect may be to suggest that your opinions are imprecise and that it is perfectly reasonable for people to disagree with you.
Be careful about accepting the opponent's facts. During a deposition, opposing counsel is likely to ask you to agree with certain key facts. You should discuss which facts are "certain" with your client before the deposition, so that neither of you are surprised. Make sure you understand which facts are in dispute, so you don't accidentally concede a point which damages your client's case.

Expert Witness Practice - Tips for Experts

Expert witnesses sometimes report having difficulty collecting their fees, or have questions about their ethical obligations when the law firms which hire them fall behind on payments, or claim that the client is responsible for the expert's bill as opposed to the law office. By using a written retainer agreement as a standard business practice, an expert can help avoid this type of difficulty.

Get a written agreement with the attorney, specifying your rate of compensation. Get a retainer for your services, as you may find it difficult to collect fees later - particularly if the attorney who hires you either loses the case or obtains a settlement that is smaller than anticipated. Your agreement with the attorney should specify that you may decline to perform additional services if the attorney has not paid your fees for prior services.

Protect your credibility. During your initial conference with the attorney, state that you will form an independent opinion based upon the facts, and that there is a possibility that your opinion will not support his client's case. If the attorney is looking for a "hired gun" who will make the facts fit the desired conclusion, you are better off declining the case and preserving your credibility.

Try to maintain balance by representing both plaintiffs and defendants. If you always represent the same side, you risk looking like a "hired gun" even if you are very careful about the clients and cases you take.

Maintain a list of the articles you have published, and the cases where you have testified. Keep copies of your publications and prior testimony for your clients to review. An attorney will need that information in order to prepare for litigation where you may be challenged with your own writings and testimony. If you no longer hold some of the positions you have taken in prior litigation or in past writings, let your client know so that he is not surprised when opposing counsel attempts to impeach you for "contradicting yourself."

HOW TO BE A SUCCESSFUL EXPERT WITNESS

Introduction
This is a teaching and lecturing outline which I have used in various forensic expert courses and programs. It is intended as an issue-raising guide for consultants and expert witnesses who will work for attorneys. It should only be used in compliance with the rules of evidence and procedure that apply in the particular jurisdiction involved. It could be useful as a checklist covering issues for discussion between the expert and the attorney.

Ethics For Experts In Litigation

Before accepting employment, always ensure that no conflict of interest exists:
Obtain instructions from attorney as to confidentiality and other client concerns.
Where potential conflicts exist, seek permission in writing to consult from prior "confidants."
Penalties for consulting or acting as an expert in a conflict of interest include:
Expert disqualified from testifying.
Attorney and expert completely disqualified from the case.
Sources of expert ethics:
The oath.
Ethics Guidelines in the expert's field.
The attorney's Canon of Ethics and State Professionals' Codes (Attorney Ethics are indirectly applicable to the expert, who works as an agent of the attorney. The expert may not be punished for infractions, but the attorney may!)

Bankruptcy Law

What is bankruptcy?
Bankruptcy is a process by which a debtor can obtain relief from his debts, through the courts. This relief may come in a variety of forms, including full or partial discharge of the debt, or the imposition of a payment program consistent with the debtor's financial means.

After you declare bankruptcy, an "automatic stay" of your debts takes effect. Your creditors will be served with notice of the bankruptcy, and, after receiving notice, will be barred from taking certain actions against you while the bankruptcy is pending. If you are contacted by a creditor after filing for bankruptcy, tell your attorney -- it is important that your attorney know not only of improper contacts, but of any possibility that a creditor was omitted from the list of creditors you submitted with your bankruptcy petition, or of the possibility that notice was not properly served.

LEGAL MALPRACTICE EXPERT WITNESS

Why use an expert? For a plaintiff to prevail in most legal malpractice cases, an expert must testify that the defendant-attorney was negligent. For the defendant to prevail in most legal malpractice cases, an expert must testify that the defendant-attorney was not negligent. If the defense does not have an independent expert witness testify, the jury may infer that there is no support for the defense position

What is the prime qualification of an expert that the jury (and other side) will respect? An expert witness attorney is a teacher. He/she must lay the foundation for the jurors to be able to understand the reasons why actions must be taken or avoided. And that foundation must be expressed with clarity. So what you want is an expert - who can express -- with clarity -- the reasons behind his/her conclusion.

To express that rational foundation with clarity needs two things:

the trial attorney must ask the proper questions, so that the expert can testify and tell the jury what it needs to know.

the expert witness must understand the courtroom dynamic,
and be an expert in communicating in the courtroom.

You usually need an expert witness who can express not only whether there was or was not negligence, but also who can express whether the underlying matter would have resulted in a favorable result, and whether the underlying matter had settlement value. This need arises from the legal fact that: in malpractice claims usually plaintiff must prove, "a case within a case." The "within a case" case is whether the defendant-attorney was negligent. The second case is whether the underlying matter (if properly handled) would have resulted in a favorable result for the legal malpractice plaintiff.

Choose an expert attorney who has the courtroom experience to correctly state the foundation of his/her opinion under Daubert style tests or other evidence rule foundation tests. The gatekeeper functions that judges now exercise mandate an expert who understands the significance of Daubert style motions to exclude expert testimony and the information that should be presented to keep the the opinion in evidence..

Manage expert witness contacts in Outlook

Expert witnesses who are believable can significantly influence the outcome of a case, so litigation attorneys are wise to know how to quickly and accurately locate expert witness information.

Microsoft Office Outlook® 2003 provides you with all of the necessary tools to create and store expert witness contact information in one central location. By using fields, categories, and views, you can organize and recall detailed information for each expert witness quickly and easily.

You don't need to maintain a separate contact list for expert witnesses. You just add witness names and information to your existing contact folder.

Store the right information
The ability to quickly recall and locate an expert witness is a critical component of the litigation process. Often times, you might not end up using an expert witness again for many years. So make sure that your contact information includes everything you might need to know about the expert witness, such as area of expertise, location, experience in the field, experience in court, professional associations, and fees.

You can even add an expert witness's picture to the contact record to help you better remember the testimony that the expert witness provided in a previous case.

Checklist: Finding and Communicating with an Expert Witness

Qualifications: Experience and background to look for in an expert

1) Prior experience as a consultant or expert witness;

2) "Hands on" experience related to his or her product or service;

3) A successful track record from a financial standpoint related to his or her area of expertise;

4) A history of having "lived through'' several cycles over the years;

5) A familiarity with ''changes'' that have occurred over the years;

6) A knowledge of the product you are involved with whereby you can explain the meaning in simple lay terms and in the "language" that an attorney understands;

7) Experience in having spoken in front of an audience on the subject;

8) Written articles on the subject;

9) Is a member of national and local expert associations;

10) Is known by others in his or her particular field as well as other attorneys experienced in the specialty of the expert;

11) Has a good relationship with insurance companies (if applicable) from a credibility standpoint and is known by a number of insurance company decision-makers;

12) If declared as an expert, providing a "Bio" that instills confidence and not one that only lists every meeting or course attended;

13) Helps you formulate questions to ask at a deposition or trial and helps develop a strategy to succeed;

14) Be assessable from a time standpoint;

15) Has the ability to have compassion for you, the attorney, and respect for your profession;

16) Has the ability to listen well and to understand that you are under a great deal of stress;

17) Able to render an opinion early on - even if such is negative;

18) Knows the standards of proper behavior in his or her industry.

Computer Evidence Discovery Expert Witnesses & Consultants

Computer Evidence Discovery experts & expert witnesses - Experts in finding, recovering, analyzing and presenting electronic information for use in legal matters; provide consulting, technical and litigatory support. For cases involving evidence created or stored on a computer. Serve as Computer Evidence Discovery expert witnesses and Computer Evidence Discovery forensic consultants in Computer Evidence Discovery legal matters, and provide Computer Evidence Discovery expert reports and testimony for judges, attorneys, lawyers, law firms, insurance companies and government agencies in Federal and state court trials and arbitrations.

Computers experts & expert witnesses - Experts in design and development of computer hardware, networks and communications. Also computer injuries and disabilities, data loss due to computer failures, infringement and trade secrets. Serve as Computers expert witnesses and Computers forensic consultants in Computers legal matters, and provide Computers expert reports and testimony for judges, attorneys, lawyers, law firms, insurance companies and government agencies in Federal and state court trials and arbitrations.

Medical Case Review Expert Witnesses & Consultants

Medical Case Review experts & expert witnesses - Experts in reviewing medical cases for assessment of merit, liability, damages and standard of care deviations. Serve as Medical Case Review expert witnesses and Medical Case Review forensic consultants in Medical Case Review legal matters, and provide Medical Case Review expert reports and testimony for judges, attorneys, lawyers, law firms, insurance companies and government agencies in Federal and state court trials and arbitrations.

Medical Literature Research experts & expert witnesses - Experts in researching peer reviewed literature to identify the most credible information in support of med-mal, PI, liability, and workers\' comp cases. Researching medical issues include standard of care, negligence, informed consent. Serve as Medical Literature Research expert witnesses and Medical Literature Research forensic consultants in Medical Literature Research legal matters, and provide Medical Literature Research expert reports and testimony for judges, attorneys, lawyers, law firms, insurance companies and government agencies in Federal and state court trials and arbitrations.

New Blog

This is a new expert witness blog.