Kellyanne Conway began her career as a professional pollster in 1988, interning for Ronald Regan’s pollster, Dick Wirthlin. Later in 1995, she founded her own company, The Polling Company/WomenTrend. She is now known to most Americans as Counselor to President Donald Trump.
In 2007, Whole Foods was preparing for a lawsuit brought by the Federal Trade Commission (FTC) against them and their proposed purchase of the organic grocery store, Wild Oats. Whole Foods hired Conway to create a survey which would “support the testimony of David Scheffman, a former FTC official with experience testifying on behalf of companies in antitrust suits”. Scheffman’s position was that consumers who frequented both Wild Oats and Whole Foods, also shopped at other grocery stores and those secondary stores “competed for the business of the crossover customers”. Conway’s task was to come up with a survey that supported these theories.
However, once the survey, designed by Conway was brought before the DC District Court, it was thrown out and the court would not lend “any weight or consideration” to the survey because of its flawed methodology. Specifically, the FTC’s expert, Kent Van Liere, stated in his testimony that his “overall opinion in this matter is that Ms. Conway’s survey methodology and procedures are fundamentally flawed and render her data and results unreliable”. And, unfortunately for Conway and Whole Foods, the court agreed, excluding her testimony.
In her current position, Conway find herself in the media spotlight on a regular basis. And based on the first few months as Counselor to President Trump, she has already brought her toes to the line, and in some cases, crossed it on several occasions. If her job continues to put her in such positions, and she continues to play the part of master spin-doctor, she may very well find herself in front of a judge again soon. Cases like this highlight the importance of studying Daubert challenge results prior to retaining and cross-examining your next expert witness.
Flachsbart & Greenspoon partner, Robert Greenspoon hopes that Supreme Court Nominee, Neil Gorsuch will assist in the “scaling back the inter partes review procedures created by the America Invents Act (AIA).” However, Gorsuch does not have a history of ruling on patent cases, so his position on such matters is up for speculation.
In other areas of intellectual property, Gorsuch has ruled on cases which involve copyrights, trademarks and trade secrets. According to a recent story in The National Law Journal, Scott Graham notes that Gorsuch’s “opinions speak with authority, precision and an eagerness to engage in IP issues.”
Similarly, Hogan Lovells IP partner, Christian Mammen opines in the same article that “ IP litigants of all stripes will get a fair shake from Gorsuch.” As a former classmate of Gorsuch’s at the University of Oxford, Mammen recalls discussions on topics that were polite but animated and may have the best insight into how Gorsuch will rule on such cases. Kirkland & Ellis partner, John O’Quinn said, “Judge Gorsuch’s opinions reflect a willingness to dig into even tedious legal issues and make them accessible to most readers.” His time the Tenth Circuit, may prove to be invaluable and he is sure to use his experience with cases involving intricate trade secrets and copyright issues when evaluating cases in the future.
More information on Neil Gorsuch and the 17 Daubert challenges on which he has ruled can be found in his Courtroom Insight profile. Read more about Gorsuch’s past IP cases and the full article from the National Law Journal.
Last Fall, the National Law Review reported on the concept of “Hot Tubbing” in U.S. Courts. They define the practice of presenting concurrent expert evidence, or “Hot Tubbing” as asking experts in the case to “all to testify and quarrel with one another at the same time”. The back and forth testimony between experts, takes place while they are under oath, and often includes the Judge getting in on the discussion as well.
U.S. District Court Judge Jack Zouhary tried out the practice of “Hot Tubbing” in his courtroom and liked the exchange between the two experts. He stated, “[I]t was great fun for me (perhaps because I’m a former trial lawyer) to be engaged directly with the key testimony that I needed to rule on”.
The presentation of concurrent expert evidence, was pioneered in Australia, and is now common place in courts in that country, though the practice is virtually unheard of among judges in the U.S. In Australia, the practice has been shown to not only save time and money, but also “experience shows that experts who are opposed in their views may, surprisingly, agree under pressure when they (two or more) are giving evidence together in court and the judge is questioning them directly” according to Australian Senior Counsel Ross McKeand. Many judges down-under, agree, according to Judge Zouhary, who cites that the Aussie judges “felt it increased objectivity and quality of expert evidence, found it made comparisons easier, and enhanced the judge’s ability to fulfill the court’s role of fact-finding”.
There have been some concerns raised about employing this type of evidence gathering in American courts. While it seems best suited for Daubert challenges or Markman patent hearings, there are some who question bringing such a format into all types of courts. International law firm Jones Day opined in an article, that the practice “should be used in very limited, non-jury contexts where the technical issues are so complex that a ‘discussion’ by the experts is essential for a rudimentary understanding of the dispute…”. Judge Zouhary doesn’t necessarily agree and says “throwing everybody in the ‘hot tub’ at the same time allows the court, counsel, and experts to confront or, ‘splash,’ each other directly, resulting in a better chance of reaching a correct conclusion.”
Only time will tell if the practice of “hot tubbing” finds favor here in the U.S. and in the meantime, our counterparts in the southern hemisphere will continue to turn up the heat in their courtrooms. Read more about the practice in the full article in the National Law Review.
- Upgraded search engine and real-time indexing
- Newly indexed content across all professions
- Improved ability to find difficult-to-locate experts
Chris Boyd’s terrific article concerning the value of strong knowledge management about litigation professionals.
Our firm defines KM as “delivering more value to clients by putting the knowledge of all attorneys at the fingertips of each attorney” and includes within “knowledge” the following three “P”s:
- Work product: model and sample documents, how-to guides, checklists, and other practice aids.
- Project-related information: profiles of cases and deals.
- People-related information.
This post focuses on the third “P”: people-related information. KM projects that focus on the first two Ps typically get more publicity and recognition within firms, probably because the output is more tangible; it’s usually obvious if a practice group has forms and matter profiles, but less obvious if the firm has a way to locate expertise. But connecting attorneys to the right people to answer questions and help clients achieve their goals can be the most powerful KM resource…
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Judge Gonzalo Curiel advises President-Elect Trump and Plaintiffs to settle case regarding Trump University
Just two days after President-Elect Trump was voted into the Presidency, the judge presiding over the Trump University fraud case, urged both parties to work towards a settlement deal. The case against Trump was brought by former students of Trump University that claim they were promised an education that allowed them detailed knowledge of the mogul’s real estate and business “secrets” from instructors “hand-picked” by Trump.
Judge Gonzalo Curiel’s name may be familiar to those that followed the 2016 Presidential campaign; he was mentioned by Trump on several occasions. The judge was born in Indiana, is of Hispanic descent and was a target of Trump’s during the campaign. Trump claimed that Curiel was unable to be unbiased in the case because of Trump’s campaign promise to build a wall bordering the US and Mexico. However, by most accounts, Trump’s claim of bias has no basis in fact.
Most recently in the case, Curiel ruled that Trump’s attorneys could not include testimony touting the high satisfaction survey results associated with Trump University. In addition, the judge refused to issue a sweeping exclusion that would prohibit the plaintiffs from presenting testimony including statements made by Trump during the presidential campaign.
The next court date in this case is set for November 28th and will be very interesting to watch how this case plays out, both in the courtroom and in the media. Judge Curiel will be under a new, unprecedented level of scrutiny while ruling in decisions relating to a pending case against the President-Elect.
Judge Richard Posner, of the 7th U.S. Circuit Court of Appeals recently spoke out regarding Supreme Court Chief Justices and the criteria used to select those nominated to the Nation’s highest court of appeals. During a promotional speaking engagement for a new biography about Posner, the judge indicated that his new book, called Strengths and Weaknesses of the Legal System is “almost entirely about the federal judiciary…. So I have about 10 pages on the strengths and about 320 pages on the weaknesses. I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir.”
Posner went on to state that his biggest complaint about the current Supreme Court Justices is that most, have little or no trial experience. He firmly believes that for a Chief Justice to be effective and qualified to hear cases, that the judges should have some trial experience and if they do not, should actively seek out opportunities to gain this experience at the district court level. In fact, Judge Posner has led by example by doing just that, in the district level courts near his post in Chicago.
Posner acknowledges that two Chief Justices, Ruth Bader Ginsburg and Steven G. Breyer, are in his opinion, more qualified to sit in their current positions, since they do have some trial experience. Posner argues that in the US, there are thousands, or tens of thousands of attorneys and judges that have paper credentials that qualify them to be on the Supreme Court. Typically, other factors, often go into Chief Justice appointments, such as race, gender, political affiliation etc. Posner’s point is that sometimes, those appointed based on these factors alone, are not the most qualified to sit on the highest court in the US. Rather, there are likely many other judges in the US that are better equipped to preside over high level appellate cases, due to their extensive trial background.
Posner’s book release will likely bring up the discussion again, especially since the prospect of filling Justice Scalia’s open seat on the Court will be at the top of our new President’s agenda. Read the entire article from the ABA Journal here.