Results are Worthy Goals For Experts, but Principled Reasoning is Worthier.

Prior posts dealt with legal experts and the uncertain edge between copyright claims governed by federal law, and distribution contracts subject to state law. In a software infringement, and unauthorized distribution, case, there already may be expert issues of “substantial similarity” on a functional or instruction level. Add to that, disputes over local law as applied to the distributor’s alleged unauthorized actions under the contract. The latter issue presented difficulty when the dispute crossed international boundaries in Artificial Solutions Germany GmbH v Creative Virtual Ltd., [2008] EWHC 593, Case No: HC07C01803, England and Wales High Court of Justice (Chancery Div. Apr. 2, 2008).

Rather than relating the overall dispute, the High Court’s comments on the legal experts are instructive of what often is presented and how the court views it. My other observation is the German convention of listing all the titles of an expert, e.g, Prof. Dr. Dr.

Both parties offered experts on German law to try to confirm or avoid provisions in the software distribution contract. But counsel, probably, kept the experts’ opinions circumscribed (possibly so the opponent could not get admissions). The High Court felt that the narrowing approach was not altogether helpful, as follows:

“I also heard evidence from two distinguished professors of German law. Professor Dr Dr Stefan Grundmann, Professor of German and European Private and Business Law” and from “Professor Dr Heinz-Peter Mansel, Professor of German Civil Law, Comparative Law and Private International Law,” and both “were clearly doing their best to assist the court.” Their assistance was limited though, because “both had been led by their instructions to focus on the application of the relevant principles of German law to their instructing party’s version of the disputed facts of the case, rather than on simply expounding their understanding of those principles.” This frustrated the inquiry, making it “difficult to ascertain precisely where they differed as to the principles as opposed to the application of the principles.”

And so it goes. Experts can agree on the principle, of law or damages or of science, or they can disagree on the applicable principles. Similarly, experts who agree on principle, can apply the principles in ways that lead to differing results. Here, the Court felt that neither side was committed to a principle, but only to a result that favored their client. Before spending a lot of time and money on experts, it is preferable to commit to a principle, and state if it differs fundamentally or in application to what the opposing expert relies upon, and go with that in court. Trying to get past making that commitment runs the risk of the experts not being persuasive, or having the High Court deem your approach “not straightforward.”