Conducting market research is an extremely important precursor to getting a patent. It is the process that answers the question ‘Is this even worth it?’ Indeed, without conducting market research, you are in essence making a blind guess that someone, somewhere will want to buy whatever it is you ultimately make. This is a costly error, and it is also a needless one. By taking the time to research your market, you can firm up exactly who that someone is and how they will buy your product. You can then proceed to market to them with the confidence that only real knowledge and insight can offer.

So what exactly is market research, and how do you conduct it? The best way to think about market research is answering a series of questions. Each one you answer will unlock some more of the puzzle that is creating and profitably selling something from your patent. That said, you should conduct market research in phases. The first phase is market information.

In this phase, you want to immerse yourself in trade journals, spec sheets, and periodicals about the industry your patent pertains to. You want to discover the prices of various commodities in the market that you will traffic in, the supply and demand patterns that determine the flow of the market. The goal of all this fact-finding is answering the following questions:

1. Who are my customers? (age, sex, income, etc.)

2. Where are they and how can I reach them? (what magazines/newspapers do they read?)

3. What quantity (and quality) do they want? (are there surveys that gather this data?)

4. What is the best time to sell? (Seasonal, yearly, etc.)

The importance of gathering information about your market cannot be stressed enough. As evidence, just imagine trying to seriously go out and sell a product to a market you know nothing about. How would you know where to sell? How would you know how to package it, and in what quantity? How would you know what warranties or guarantees to offer? None of these questions need to be mysteries to you, and if you are going to succeed, they cannot be.

Another important aspect of market research is market trends. This is the upward or downward movements of your specific market during a period of time. Now, the size of a market is obviously more difficult to determine if your product is brand new. But even in this case, you will have to derive your figures from the number of customers in an existing market. Let’s say you have invented a chip that gets implanted into your brain so you can control the TV with your thoughts. This is a new product, to be sure, but you can and must use existing markets to gauge your likelihood of success. For example, you would seek sales figures and segment data about the universal remote control market, which is arguably the closest comparison to what you have invented and want to sell.

In addition to market size, you want to determine information about your competitors. Are your major competitors growing in profitability and size, or shrinking? Which customers are they trying to reach? What are their profit margins? What channels do they advertise through? This information can be obtained by first-hand observation (ie, studying their fliers or commercials, interviewing present and former employees, etc.) or through other sources.

As mentioned earlier, industry trade journals are an excellent source of market research data. Most public and college libraries offer massive electronic databases where these journals can be read, studied, and printed for your analysis. These are often considered the definitive sources for conducting market research, so you would be well-advised to consult them.

In addition to libraries, many trade journals and industry sources can be accessed via the Internet. Yahoo, for example, offers an abundance of such material segmented by industry. Simply click the industry you want to research (law, jewelry, automotive, etc.) and you can browse a list of sources pertaining to them.

SRC: http://dir.yahoo.com/Business_and_Economy/Business_to_Business/News_and_Media/Magazines/Trade_Magazines/

As you go about your research, you might find yourself wondering ‘What’s the point of all this?’ This is perfectly normal, but it should not — repeat, NOT — stop you from doing the research. While the tangible value of knowing your market inside and out is not always immediately clear, you will be thankful for it when it comes time to price your product or decide on an advertising strategy. Without solid market research, you will be making these life or death business decisions on gut and impulse. This is a surefire recipe for failure.

Instead, take the time to study the journals and periodicals your industry has to offer. That way you will be making decisions based on facts instead of hopes, guesses, and wishful thinking.

Eric Corl is the Founder and CEO of Idea Buyer, a marketplace for new technology and products that allows inventors to showcase their intellectual property to consumer product companies, entrepreneurs, retailers, and manufacturers at http://www.IdeaBuyer.com

You can email him at EricCorl@IdeaBuyer.com

Typically, these companies also claim that they can patent your idea, which is impossible. (Any competent patent attorney will tell you that only an invention can be patented, not a mere idea.) However, even the sharpest inventors tend to be drawn in by these seductive promises. While it might seem logical to attribute this to laziness, that does not seem to be the case. Inventing is tough, diligent work. The more likely explanation is that inventors are not familiar with the business side of patents and these companies seem like a smart way to go.

In fact, inventors with patent ideas can bypass this chump’s game and do most (if not all) of their patent sale presentations themselves. All you need is some knowledge about how companies evaluate patents and how to emphasize the benefits of yours. With that in hand, you will be primed and ready to go out and sell your patent to a buyer.

First, you need to decide how you want to sell your patent. Your two choices are to license your patent or to assign it. Essentially, licensing your patent lets you retain the underlying rights but grant someone else — the licensee — the right to make something based on the patent. In exchange, you get royalties and whatever performance obligations you write into the license agreement. Assigning a patent, on the other hand, is an outright transfer to someone else, after which that person is the sole, exclusive owner of the patent. (Read our in-depth article on patent licensing for more information on both options.)

Once you have decided whether to sell your patent via licensing or assignment, the next step is to determine which company you should be making your pitch to. For example, the inventor of a new, lighter and more durable bicycle tire might assume that he needs to talk to Wal-Mart or the Sports Authority. In reality, he wants to speak with companies like Huffy or Schwinn, ie, companies who make and manufacture bicycles. They are who would be most likely to buy your patent, since it coincides with their existing line of business. It’s what those in the business call a ‘natural fit.’

He might even want to go further down the chain and approach the company who creates bicycle tires, if this is a different company. The closer you can get to the physical implementation of your idea, the more likely it is that your presentation will be favorably received.

The reason for this is simple. The higher up you go, the more layers your idea will have to pass through until it reaches the people whose lives will be concretely affected by it. Not only that, but other people will not present your idea with the energy and enthusiasm that you will. The importance of narrowing down the list of companies to make your sales pitch to in this way cannot be stressed enough.

Once you identify the company you need to speak to, you need to work on what you will say to them. To keep our example of a new kind of bike tire; you want to emphasize to the tire manufacturer why your design of tire is superior. Beyond that, you want to demonstrate why the company needs to use your design. For instance, you might want to include in your presentation a survey where 75% of respondents said that shoddy bike tires are the reason they do not buy new bicycles. The idea is to focus on benefits to the company, rather than hype and self-promotion. This is what will make them eager to buy your patent and put it to use in their products.

Once you have prepared a clear, benefit-driven presentation, the final step is to make the pitch. Generally, you will find a business development mailing address or e-mail address on the company website. Just send them a short, to the point note saying that you have a business proposal you would like to discuss. Make sure you include enough details to get their attention, but not so much that your note becomes a novel.

Above all, maintain confidence in yourself and your patent. If you have carefully though things through, you can indeed sell your patent on terms that are favorable to you and your future prospects.

Eric Corl is the Founder and CEO of Idea Buyer, a marketplace for new technology and products that allows inventors to showcase their intellectual property to consumer product companies, entrepreneurs, retailers, and manufacturers at http://www.IdeaBuyer.com

You can email him at EricCorl@IdeaBuyer.com

The first type of business plan is one you plan on showing to others. This might be so you can raise venture capital funding or get a bank loan. The second type of business plan is for yourself. It is in essence a document to keep you on track, something you can refer to in the day-to-day chaos of your operations and use to determine whether you are on target. First, let’s explore the first type.

If you are writing a business plan to obtain funding, you are essentially giving a stranger an overview of your company. This person will want to evaluate your goals, your personell, and your financial projections for the future. Therefore, these are the things you want to address and give special attention to in your business plan. At bare minimum, your business plan needs an executive summary, a marketing plan, financial projections, and a description of the personell involved. Let’s learn a little more about each phase, as each one is crucially important.

Executive Summary

The executive summary is what you might call ‘the main point.’ It is the most important part of your business plan. This is where you summarize the purpose of your company, how you will make money, in essence, what you will be going into business to do. You want to touch upon the surface of all the other categories, but without going into super-specific detail. For example, rather than naming the stores you want to sell your product in or the names of specific personell, you might say something like ‘We will utilize a robust strategy of discount store selling made possible by high-ranking personell in the retail field.’ A venture capitalist or business partner should be able to read your executive summary and come away with a broad understanding of your goals. Of course, you’ll need to firm up specifics of how your business will be run in order to provide that understanding. Therefore, it would be best to hold off on writing the executive summary until after you are down with your marketing plan, financial projections, and personell descriptions. Then you yourself will be intimately familiar with the details and in a good position to sum it all up in your executive summary.

Marketing Plan

Your marketing plan is basically how you intend to reach your customers. It is also where you define your ideal customer: say, 22-35 year old SUV driving males in the northeast with incomes of $80,000 per year or more. The person reading your marketing plan should come away knowing where your product will be sold and how. Details are crucial here. Do you know buyers at Home Depot or Wal-Mart, if that’s where you plan on selling? Will you be using Google AdWords or affiliate deals, if you will be retailing online? How much product can you afford to produce? How do you plan on keeping store shelves (or inventory) stocked? Anything related to how and at what cost your product reaches customers belongs in the market plan, spelled out in as much detail as you can go into. This will firm up your vision in the minds of anyone reading it.

Financial Projections

The number one question on the mind of any business partner is ‘How much money is going to come out of this?’ The financial projections are where you attempt to answer this question. What are your sales goals? What kind of profit margin do you expect? When do you predict the company will be profitable? Are there significant debts that need to be taken and later repaid, such as for machinery or equipment? If so, you need to factor such things into your projections. A person reading your financial projections will want to know that you have taken everything into account and produced some realistic expectations for the business.

Personell

Finally, those reading your business plan will want to know that you have competent, accomplished people working with you. In the personell section, you want to list the names, achievements, and qualifications of anyone who will be working with you. The idea is to convince the VC or partner that the personell you have chosen are suited for the tasks that lie ahead. This is especially important, given the modern trend of venture capitalists appointing their own guys to companies they fund.

The other type of business plan is the one you write for yourself; for example, if you are bootstrapping with your own funds and growing the business organically, by reinvesting profits. This type of business plan can be much more informal in nature, since you will be the only one looking at it. However, you should still be thinking about the same questions. Too many business owners lose sight of why they are in business at all, and try to be all things to all people. This does not work, and a solid business plan is a great way to keep yourself focused on what matters — on what is profitable.

Therefore, no matter how you choose to structure your business plan, it should have the following:

* Specific, numeric sales goals and time frames for achieving them.

* A list of ways you intend on marketing your product and the steps necessary to see it through

* When you expect to be profitable and why

Forcing yourself to think these things through will be an invaluable benefit as you build your company. They will give you standards to judge yourself against daily, as well as show you how to correct any mistakes you are making.

Eric Corl is the Founder and CEO of Idea Buyer, a marketplace for new technology and products that allows inventors to showcase their intellectual property to consumer product companies, entrepreneurs, retailers, and manufacturers at http://www.IdeaBuyer.com

You can email him at EricCorl@IdeaBuyer.com

When I was in college I worked at the infamous, local coffee shop. I was so intimidated by the big name that I made a resume to submit with my application. After being hired, I saw some of the employee\’s, in the back, laughing saying, “This ain\’t the President\’s office! Resume, pshhhhh!” As I laughed, I considered all the company stands for and the 216 page employee handbook a new hire must complete before being “let go” on the “floor.” They give you this spiral notebook with seriously, 216 pages (not including the three–three ring binder of all the beverages and the history and information on every single coffee and tea) of must-know knowledge on being a “coffee connoisseur”. It\’s organization of the company that instills its values and work ethics into the employees in order to inspire them to do the best they can at selling and handling the product. Working with this company taught me so much about running a business and my role in it in regards to how I contribute and cost it.

Through the manual, I learned the importance of open communication through clear explanations (writing) and budgeting. As an employee of any company, there are always rules and guidelines that are establish to keep the company running economically sound. When these are violated the company may suffer. Such is the case when I was working at this coffee shop. We quickly learned the insiders on how the store operated with its budget. As orders were sent and received, everything was accounted for. There was even a set amount of trash that was accounted for. Our schedules were written and printed out with duties assigned to each employee in a single day. A log of everything was kept current–almost hourly. All the dynamics of clear communication, written documents and budgeting contributed to my growth as an employee. The learning didn\’t stop here. Customer service, in this atmosphere further enhanced and built my skills.

Internal organization made for a smooth flow of public relations and the execution of a smooth shift. Organization went beyond a single assignment to a single person. This encompassed the mission of the company. Each person was responsible to know their job and help each other out by doing it. Taking the initiative to get various tasks done, contributed greatly to attitudes and even happy customers. By getting allocated tasks done the store stayed in an organized fashion which made both customers and employees at ease especially amidst the highest traffic. Our store\’s organization and public relations greatly increased my skills in this area. I\’d never worked in an environment where everything was perfectly organized with a successful result.

Lastly, I developed leadership skills which boosted my energy to be a productive worker. When customer\’s lined up to the parking lot, each employee became the manager in their own station according to who is in what spot. I tried to stay in my corner where I can work efficiently in a station where all the supplies were. If my fellow coffee connoisseur\’s needed supplies, I can pull it out and hand it over in a steady motion to not break the momentum of energy during such a time. Implementing my ideas in such a way as to encourage my fellow employees was a valuable lesson. This skill enabled me to move up in the store as my positive energy and skills further developed. Such vital skills have stayed with me. I\’ve incorporated these important skills to my affiliate marketing to create a positive work environment for myself.

Working independently with affiliate marketing has further “fine-tuned” my organizational skills as I am my own boss. I create a schedule for myself so that my day is productive and my customers are drawn to products that are of some value to their affiliate marketing ventures. Having the background at my college workplace, has created me to be a successful independent contractor in this field of affiliate marketing. Though I work by myself, I still draw inspiration and advice from others who\’ve both failed and/or made a fortune. I continue to build skills I have as well as am learning new ones that I never thought I would need. I\’m grateful for my employment history for its contributions to my current ventures.

For more affiliate marketing tips, visit my blog at http://4-cents.blogspot.com/ Feel free to distribute this article in any form as long as you include this resource box. You can also include your affiliate link when you sign up at my website: http://4-cents.blogspot.com/

You\’re driving home from dinner with friends and suddenly you hear a siren and see flashing lights in the rear view mirror. This scene, or a variant thereof, is replayed thousands of times a year in Pennsylvania. Most of those who find themselves in this situation are not “criminals” experienced with the criminal justice system, but average citizens who may have made an error in judgment or were in the wrong place at the wrong time.

Pennsylvania Rule of Criminal Procedure 519 allows police to release from custody those charged with a misdemeanor DUI. What this means is that you get to go home rather than to jail. Thus, after the police finish their DUI investigation most people are released and told that they will receive paperwork in the mail. This can be a very confusing time as one does not know what to expect. Many questions may remain unanswered at the time you are released. The most common question is “what happens now?”. I will list the next several steps in the process so that you can begin to plan how you will deal with the situation.

After one is released pursuant to Rule 519 the police officer files a “Criminal Complaint” with the local Magistrate\’s office. The Magistrate\’s Office will send a “summons” package to you containing that complaint and several other items via certified mail. This summons package will usually arrive between two and six weeks after you are released. The summons will generally contain three items.

First, the criminal complaint which contains a list of the charges filed against you and an “affidavit of probable cause”. This is a brief factual summary of what the police officer says happened and forms the legal basis for the filing of the criminal charges.

Second, the summons will usually contain a fingerprint order. The law in Pennsylvania requires that all persons charged with a crime must be fingerprinted. This would normally be done at the County Jail when an arrestee is processed. However, those released pursuant to Rule 519 are not taken to jail, and thus, not fingerprinted on the date of the incident. The order will require you to appear to be fingerprinted at a specific time. In Allegheny County, Pennsylvania, most fingerprinting is done at the Bureau of Criminal Identification in downtown Pittsburgh. Failure to appear at the appointed time can result in a warrant being issued for your arrest. It should be noted that some Magistrates do not include the fingerprint order in the summons, but instead, give it to you when you appear before them for your Preliminary Hearing. So do not panic if you don\’t find one with the other paperwork in the summons.

Finally, the summons will contain a “Notice of Preliminary Hearing”. This will list the date, time and place where your first court appearance will take place. This will generally, take place before the Magistrate who sent you the summons within several weeks. Again, failure to appear will result in a warrant being issued for your arrest. I will address what actually happens at the Preliminary Hearing and subsequent court appearances in a future article.

This time frame between the time of your DUI stop and receiving the summons in the mail is crucial. It is during this time that you should begin looking for an attorney. That way by the time the summons comes you will be ready to proceed with the preliminary hearing without delay.

Pittsburgh DUI Lawyer George A. Heym is a former Prosecutor who now defends those charged with DUI in Western Pennsylvania. For additional information visit his site at http://www.pittsburgh-dui-lawyer.com

It is deja vu all over again, as the Supreme Court once again has agreed to review a controversial patent ruling of the Federal Circuit Court of Appeals. The issue this time: whether a patent owner’s rights were exhausted by a license agreement and subsequent sale of product pursuant to the license.

With the Supreme Court’s 2007 decisions in KSR v. Teleflex and MedImmune v. Genentech and its 2006 decision in eBay v. MercExchange, it has reshaped the landscape of patent law by rejecting the views of the Federal Circuit - the very court that was established to help bring uniformity to patent law. Now the nation’s highest court has an opportunity to do that again.

On September 25th, the court granted certiorari in Quanta Computer v. LG Electronics, which was decided by the Federal Circuit as LG Electronics v. Bizcom Electronics, 453 F.3d 1364 (Fed. Cir. 2006).

In seeking Supreme Court review, Quanta and other petitioners challenged the Federal Circuit’s application of the exhaustion doctrine - also known as the first-sale doctrine - arguing that it is at odds with nearly a century of Supreme Court precedent. LG countered that the petitioners were seeking to make a mountain out of a molehill in that the Federal Circuit’s decision turned on the case’s unique facts.

The question the court will decide, as stated by the petition for review, is this: “Whether the Federal Circuit erred by holding, in conflict with decisions of this Court and other courts of appeals, that respondent’s patent rights were not exhausted by its license agreement with Intel Corporation, and Intel’s subsequent sale of product under the license to petitioners.”

Circuit Finds Exhaustion

The case involves a series of patents that LG licensed to Intel Corp. and Intel’s subsequent sales of products to third parties pursuant to that license. LG’s patents cover various systems and methods for enhancing the operation of personal computers.

Under its license with LG, Intel was authorized to sell microprocessors and chipsets to third parties. However, it was required to notify purchasers that they were not authorized to combine the Intel products with non-Intel components. This was because LG’s patents covered not the products directly but the processes that resulted from their combination with other components.

LG sued a number of companies that purchased the Intel microprocessors and chipsets for infringement of its patents. The trial court granted summary judgment in favor of the purchasers, ruling that the licensing arrangement exhausted LG’s patent rights.

On appeal, the Federal Circuit reversed the trial court’s finding of exhaustion. Exhaustion, the court reasoned, applies only to an unconditional sale, one that exhausts the patentee’s right to control the purchaser’s subsequent use of the device. It does not apply to an expressly conditional license or sale, the court said.

Given that LG’s license to Intel carried the condition that Intel had to notify customers of its limited scope, the license was clearly conditional, the court held.

“The LGE-Intel license expressly disclaims granting a license allowing computer system manufacturers to combine Intel’s licensed parts with other non-Intel components,” the court explained. “Moreover, this conditional agreement required Intel to notify its customers of the limited scope of the license, which it did. Although Intel was free to sell its microprocessors and chipsets, those sales were conditional, and Intel’s customers were expressly prohibited from infringing LGE’s combination patents.”

Contrary to Precedent?

In asking the Supreme Court to review the Federal Circuit’s decision, Quanta and the other petitioners argued that the Federal Circuit’s application of the exhaustion doctrine was contrary to clearly established Supreme Court precedent.

“Under the patent exhaustion doctrine that this Court has applied for more than 90 years,” they wrote in their petition for review, “an authorized first sale of a patented article exhausts the patent owner’s rights in that article, and nullifies any ‘conditions’ that the patent owner has tried to attach to its use or resale.”

The Federal Circuit’s decision was in direct conflict with Supreme Court precedent, the petitioners asserted, and was “an unprecedented and extremely dangerous expansion of the patent monopoly.”

LG, in opposing the request for certiorari, argued that the petitioners were exaggerating the significance of the case.

“Petitioners strain to make a broad doctrinal issue out of a narrow case-specific ruling,” LG asserted. “The Federal Circuit … disagreed with the trial court’s case-specific assessment of the terms of dealing in this case, and returned the case to the district court for trial. … That interlocutory ruling presents no issue warranting review.”

In deciding to hear the case, the Supreme Court apparently disagreed with LG and saw grounds for review. In so doing, it has set the stage for perhaps another disruption of Federal Circuit patent law.

The court ordered briefs to be filed on an expedited schedule. As of this writing, it has not scheduled a date for oral arguments.

This article was originally published in BullsEye, a newsletter distributed by IMS Expert Services. IMS ExpertServices is the premier expert witness and litigation consultant search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. We are proud to be the choice of 89 of the AmLaw Top 100. To read this and other legal industry BullsEye publications, please visit IMS ExpertServices’ recent articles. Call us at 877-838-8464 or visit us at http://www.ims-expertservices.com

It is a common litigation scenario: One side’s expert says one thing while the other side’s says just the opposite. But when - as in patent cases - expert opinion is so critical to the outcome, is summary judgment possible when the two experts disagree?

Summary judgment, after all, requires a judge to conclude that there is no genuine dispute as to any material fact. If the experts are at odds over whether a patent is infringed, isn’t summary judgment ruled out?

In a September 21st opinion, In re Gabapentin Patent Litigation, the Federal Circuit Court of Appeals answered that very question in a case involving a pharmaceutical patent. In ruling that the district court erred when it granted summary judgment, the court shed light on how judges and lawyers should handle this scenario.

At the heart of the case was drug-maker Warner Lambert’s patent covering a process for preparing a highly purified version of the compound gabapentin, the active ingredient in the epilepsy drug Neurontin. When several competing drug companies sought approval to market generic versions of Neurontin, Warner Lambert filed suit against them.

Through the Judicial Panel on Multidistrict Litigation, the various actions were consolidated in federal court in New Jersey. There, the defendants filed motions seeking summary judgment of noninfringement and invalidity.

A key disclosure of the Warner Lambert patent was that its process produced a gabapentin composition with “less than 20 ppm of an anion of a mineral acid.” Finding that Warner Lambert failed to produce sufficient evidence to show that the defendants’ generic products met this limitation and therefore infringed its patent, the district court granted summary judgment in favor of the defendants.

In the district court, Warner Lambert had based its opposition to summary judgment on the results of pH tests performed by its analytical expert. Those results, it argued, countered testing done by defendants’ expert and created a genuine issue of material fact.

Conflicting Experts

On appeal to the Federal Circuit, Warner Lambert argued that the conflicting opinions of its expert and the defendants’ expert - each based on different methods of testing - created a genuine issue of material fact and that the trial judge erred by resolving that factual dispute on summary judgment. The defendants countered that Warner Lambert’s pH tests were invalid and imprecise.

The Federal Circuit sided with Warner Lambert, agreeing that the outcome of its expert’s testing provided sufficient evidence to create a genuine issue of material fact as to whether the generic drugs would infringe its patent.

The court gave short shrift to the defendants’ argument concerning the validity of the pH testing, finding that they had expressly excluded that argument from their original summary judgment motion. Ironically, they had excluded that argument in order to avoid factual disputes that might undermine their summary judgment motions.

As to the test’s precision, the court found that even after factoring in the test’s margin of error, the results showed that the defendants’ drugs could fall within the 20 ppm claim limitation of Warner Lambert’s patent.

“Based on the record before us, we conclude that the district court erred in granting summary judgment of noninfringement based on Warner Lambert’s purported failure to meet its burden of proof,” the court said. “The record shows that Warner Lambert proffered sufficient evidence to create a genuine issue of material fact regarding whether the accused products met the 20 ppm claim limitation of the ‘482 patent.”

Having decided that summary judgment was improper, the Federal Circuit went on to review the trial court’s construction of two key claims in Warner Lambert’s patent, one defining “anion of a mineral acid” and another defining “adjuvant”. In both cases, the circuit court affirmed the trial court’s construction.

The case is In re Gabapentin Patent Litigation, No. 2006-1572 (Sept. 21, 2007).

This article was originally published in BullsEye, a newsletter distributed by IMS Expert Services. IMS ExpertServices is the premier expert witness and litigation consultant search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. We are proud to be the choice of 89 of the AmLaw Top 100. To read this and other legal industry BullsEye publications, please visit IMS Expert Services’ recent articles. Call us at 877-838-8464 or visit us at http://www.ims-expertservices.com

Courts must provide litigants with an opportunity to be heard before ruling on the admissibility of expert testimony - and in all but exceptional cases that requires courts to hold hearings with full briefing and argument, the Supreme Court of Mississippi ruled in an en banc opinion issued October 4th.

Reviewing a personal-injury case in which two girls were severely burned in a school bus fire, the Supreme Court held that the trial judge erred when he struck an expert’s affidavit without a hearing and entered summary judgment. The court reversed the judgment and remanded the case.

While other federal and state courts have recognized that in limine hearings are often the best way to ensure that expert-witness issues are decided fairly, the Mississippi court made clear that hearings should be held in all but the most drastic of cases. At the same time, it stopped short of requiring hearings in every case.

“We generally recommend that the trial court conduct an in limine hearing specifically on the subject, as this procedure will result in full briefing and argument by the parties regarding the proposed expert testimony,” the court said in an opinion written by Presiding Justice Oliver E. Diaz Jr.

“This will not only assist the trial court in its function as evidentiary gatekeeper; it will provide a fuller record for an appellate court should the parties contest the evidentiary ruling,” Diaz continued. “While an in limine hearing may not be necessary in all cases, it does provide the most efficient manner of addressing the issue in many cases.”

But the Supreme Court’s chief justice, James W. Smith Jr., dissented from the opinion, joined by three other justices. He argued that the trial judge properly decided the motion without holding a hearing, because the affidavit was clearly defective. “The expert’s affidavit was inadmissible because it was mere unsupported speculation, subjective belief, and conclusions without any basis provided by reliable scientific methods and procedures,” he wrote.

MOTION TO STRIKE

The underlying litigation involved the two students’ suit against the Amory School District after their bus caught fire and they were severely burned. Amory contended that a defect in the bus’s propane fuel system caused the fire and it sought indemnity from Charles Clement, whose company had converted the buses from gasoline to propane.

When Amory’s expert prepared an affidavit in support of this theory, Clement sought to strike it as insufficient under the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which the Mississippi Supreme Court adopted in 2003 as the state standard governing expert testimony.

The trial court, without holding a hearing, granted Clement’s motion to strike. In a brief order, the trial judge said that the opinions of Amory’s expert were “nothing more than unsupported conclusions which are devoid of a factual basis and not the product of reliable principles and methods.” Having struck the affidavit, the court went on to enter summary judgment for Clement, finding that Amory offered no credible expert testimony to support its theory of causation.

THE BEST METHOD

On appeal, the Supreme Court restated its holding in another 2007 case that litigants should have an opportunity to be heard on the admissibility of expert testimony. The question in this case was whether the parties had such an opportunity.

The trial court had based its decision to strike on its review of the affidavit and of a rebuttal affidavit provided by Clement. It held no hearing on the motion to strike, but it did hold a hearing on the motion for summary judgment that Clement filed together with the motion to strike. At that hearing, Amory argued that its expert should be given further opportunity to expound on his theory.

Turning to federal cases for guidance on the issues, the Supreme Court noted that two federal circuits have issued opinions encouraging - but not requiring - trial judges to hold in limine hearings before making Daubert determinations. Hearings make sense, the court said, as the most cautious approach to complex evidentiary issues.

“Perhaps before Daubert, such a determination could be made without a hearing, but the continual evolution of science and the growing intricacies of litigation mandate that we take the trial court’s role as ‘gatekeeper’ seriously,” the court explained. “A hearing is simply the best method of guarding the admission of expert testimony.”

Still, not every case requires a hearing, the court added. “Common sense informs us that in some cases an expert may be drastically unsuited to testify; for example, for a lack of standing within the proffered field or a discredited background.” Even then, however, the parties must be given some other opportunity to be heard, such as an opportunity to file substantive briefs.

That said, the court was unequivocal in concluding that hearings should be conducted in all but the most clear-cut cases. Because Amory had no opportunity to be heard here, the court said, the expert’s affidavit was improperly struck and summary judgment improperly granted.

In his dissent, Chief Justice Smith asserted that not every Daubert motion requires a hearing and that trial courts should be given latitude to decide how best to measure an expert’s reliability.

“[T]he essential requirement is that the parties have an opportunity to be heard before the trial court makes a decision,” he wrote. “A court need not hold an actual hearing in order to comply with Daubert.”

The case is Smith v. Clement, No. 2006-CA-00018-SCT (Miss. 10/04/07).

Robert Ambrogi is the editor of BullsEye, a monthly newsletter distributed by IMS Expert Services. IMS Expert Services is the premier expert witness and litigation consultant search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal industry BullsEye publications, please visit IMS Expert Services at http://www.ims-expertservices.com

Nobody wants to get into an accident. Unfortunately, accident happens. Finding a good personal injury lawyer is important, because personal injury cases often involve a big compensation. Most victims are not law gurus, and they often rely on their lawyer. Even if you buy insurance, insurance companies do not always look out for your best interest. Sadly, many insurance companies only care about making money. The goal of insurance company is to pay you the least amount of money possible. Here are some tips that can help you find a good personal injury lawyer.

1) Choose an experienced personal injury lawyer. Choosing personal injury lawyer is like finding a good doctor. If you are sick, you want to find a doctor with a great deal of experience to diagnose you. Believe it or not, many people choose nice lawyers without looking at their experience. Why? Nice lawyer can comfort victims. Unfortunately, they will not help you win. Do not make that mistake.

2) Although internet and local phone book may be good places to start searching for your lawyers, it is important to check your lawyers’ credentials. For instance, you can start by using Martindale-Hubbell rating.

3) Ask a lot of questions. A good lawyer should be able to answer most of your questions. If they do not have answer to simple legal procedures, they may not have enough experience for you.

4) Most personal injury lawyers will take a contingency fee which is approximately about thirty percent of your final settlement. Be up front about compensation.

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The crime of identity theft

It can happen to anyone. The phone rings and a collection agency demands that you pay past-due accounts for goods you never ordered. The supermarket refuses your checks because you have a history of bouncing them. But you have always paid bills on time. What has happened?

The crime of identity theft is on the rise. Recent surveys show there are currently about 9 million victims each year. Using a variety of methods, criminals steal Social Security numbers, driver’s licenses, credit card numbers, ATM cards, telephone calling cards, and other pieces of individuals’ identities such as date of birth. They use this information to impersonate their victims, spending as much money as they can in as short a time as possible before moving on to someone else’s name and identifying information.

There are two types of identity theft.

• “Account takeover” occurs when a thief acquires your existing credit account information and purchases products and services using either the actual credit card or simply the account number and expiration date.
• “Application fraud” is what some experts call “true name fraud.” The thief uses your SSN and other identifying information to open new accounts in your name. Victims are not likely to learn of application fraud for some time, because the monthly account statements are mailed to an address used by the imposter. In contrast, victims learn of account takeover when they receive their monthly account statement. This guide discusses strategies for reducing the risk of both types of fraud.

Generally, victims of credit card fraud are liable for no more than the first $50 of the loss. (Truth in Lending Act, Fair Credit Billing Act, 15 USC sec. 1601) In most cases, the victim will not be required to pay any part of the loss. But debit card users have less protection against fraud. Not only are individuals’ checking accounts wiped out, debit card users could be liable for the total amount of the loss depending on how quickly they report the loss to the financial institution. (Electronic Funds Transfer Act, 15 USC sec. 1693) For more about credit card and debit card laws, read the Federal Reserve’s Consumer Handbook, www.federalreserve.gov/pubs/consumerhdbk

Even though victims are usually not saddled with paying their imposters’ bills, they are often left with a bad credit report and must spend months and even years regaining their financial health. In the meantime, they have difficulty getting credit, obtaining loans, renting apartments, and even getting hired. Victims of identity theft find little help from the authorities as they attempt to untangle the web of deception that has allowed another person to impersonate them.

Stealing wallets used to be the best way identity thieves obtained SSNs, driver’s licenses, credit card numbers and other pieces of identification. While still employed, identity thieves now use a variety of means:

• “Dumpster diving” in trash bins for unshredded credit card and loan applications and documents containing SSNs.
• Stealing mail from unlocked mailboxes to obtain newly issued credit cards, bank and credit card statements, pre-approved credit offers, investment reports, insurance statements, benefits documents, or tax information. Unfortunately, even locked mailboxes may not stop the most determined thief.
• Accessing your credit report fraudulently, for example, by posing as an employer, loan officer, or landlord.
• Obtaining names and SSNs from personnel or customer files in the workplace.
• “Shoulder surfing” at ATM machines and phone booths in order to capture PIN numbers.
• Finding identifying information on Internet sources, via public records sites and fee-based information broker sites.
• Sending email messages that look like they are from your bank, asking you to visit a web site that looks like the bank’s in order to confirm account information. This is called “phishing.” (Visit www.antiphishing.org)

Credit cards, debit cards, and credit reports:

1. Reduce the number of credit and debit cards you carry in your wallet. We recommend that you do not use debit cards because of the potential for losses to your checking account (see above). Instead, carry one or two credit cards and your ATM card in your wallet. Nonetheless, debit cards are popular. If you do use them, take advantage of online access to your bank account to monitor account activity frequently. Report evidence of fraud to your financial institution immediately.

2. When using your credit and debit cards at restaurants and stores, pay close attention to how the magnetic stripe information is swiped by the waiter or clerk. Dishonest employees have been known to use small hand-held devices called skimmers to quickly swipe the card and then later download the account number data onto a personal computer. The thief uses the account data for Internet shopping and/or the creation of counterfeit cards.

3. Do not use debit cards when shopping online. Use a credit card because you are better protected in case of fraud.

4. Keep a list or photocopy of all your credit cards, debit cards, bank accounts, and investments — the account numbers, expiration dates and telephone numbers of the customer service and fraud departments — in a secure place (not your wallet or purse) so you can quickly contact these companies in case your credit cards have been stolen or accounts are being used fraudulently.

5. Never give out your SSN, credit or debit card number or other personal information over the phone, by mail, or on the Internet unless you have a trusted business relationship with the company and you have initiated the call. Identity thieves have been known to call their victims with a fake story that goes something like this. “Today is your lucky day! You have been chosen by the Publishers Consolidated Sweepstakes to receive a free trip to the Bahamas. All we need is your Social Security number, credit card number and expiration date to verify you as the lucky winner.”

6. Always take credit card receipts with you. Never toss them in a public trash container. When shopping, put receipts in your wallet rather than in the shopping bag.

7. Never permit your credit card number to be written onto your checks. It’s a violation of California law (Civil Code sec. 1725) and laws in many other states, and puts you at risk for fraud.

8. Watch the mail when you expect a new or reissued credit card to arrive. Contact the issuer if the card does not arrive.

9. Order your credit report at least once a year. Federal law gives you the right to one free credit report each year from the three credit bureaus: Equifax, Experian, and TransUnion. If you are a victim of identity theft, your credit report will contain the tell-tale signs - inquiries that were not generated by you, as well as credit accounts that you did not open. The earlier you detect fraud, the easier and quicker it will be to clean up your credit files and regain your financial health.

We recommend that you stagger your requests and obtain one report each four months. That way, you can monitor your credit reports on an ongoing basis. But if you are in the market for credit or are a victim of identity theft, order all three at one time.

How to order your free annual credit report: I Recommend free credit report.com. They can help you get your latest report

10. Residents in seven states can obtain free annual credit reports under state law, in addition to the free reports available under federal law. These states are: Colorado, Maine, Massachusetts, Maryland, New Jersey, Vermont, and Georgia (two free reports per year in Georgia). If you live in one of these states, be sure to order both your free reports under federal law as well as state law each year - enabling you to even more effectively monitor your credit files on an ongoing basis.

11. Californians and individuals in several other states are now able to “freeze” their credit reports. (California Civil Code 1785.11.2) By freezing your credit reports, you can prevent credit issuers from accessing your credit files except when you give permission. This effectively prevents thieves from opening up new credit card and loan accounts. In most states, security freezes are available at no charge to identity theft victims and for a relatively small fee for non-victims.

12. Several companies, including the three credit bureaus, offer credit monitoring services for an annual fee ranging from $50-$120 a year. They notify you when there is any activity on your credit report, thus alerting you to possible fraud.

I highly recommend Equifax Credit Score Watch

Stay vigilant and protect your self

For more information of how to get your free credit report or Equifax Credit Score watch visit my blog at http://creditprotector.blogspot.com/

Thanks

Donald Martin