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From the time of my first patent trial in Wilmington, DE, around 1990, the standing order there was no “legal experts.” It was a good rule then, and now, but now the CAFC and the Supreme Court have mixed legal rules with factual issues. Still, in a bench trial, it is close to a professional affront to proffer a lawyer to give the Judge an opinion on the law, even the patent law.
It still is the unwritten rule in Delaware, as indicated in a short Dec. 20th Order in Vanderbilt Univ. v. ICOS Corp., (Civ. 05-506-SLR), where after having “reviewed the case law” the Judge “concluded that testimony to explain (or explain away) such law is neither needed or appropriate.” I suppose that was cause to send that “legal expert” back to gather up his luggage at the DuPont Hotel and Metroliner back to wherever he rode into town from.
February 20, 2008 at 11:40 pm
I don’t think this is unique to the District of Delaware. It is the majority rule in US federal courts, and I think most state courts. The law is the province of the judge and whether in a bench or a jury trial, the testimony of experts on the law is (almost) presumptively inadmissible. There are scarce exceptions, such as in the case of experts on foreign law, but the caselaw is otherwise as consistent as any area of expert testimony. One state court recently excluded a recently retired chief justice of that state’s supreme court when the ex-Chief was proffered as an expert on the law. Of course, this comment carries the asterisk that in all areas of expert testimony, courts regularly err, so there are stray cases where legal experts have been admitted.