Summary
The case concerned around 40 studio recordings of performances which were given by the members of the Jimi Hendrix Experience. The expert witnesses in New York law were commended by the judge on their written and oral evidence. The judge was not persuaded by any of the criticisms of the claimants' expert made by the defendant.
Learning points
Learning points for experts
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Your expertise is your best defence against criticism by the opposing party.
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As the judge in this case noted, exercising your expertise effectively includes:
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producing detailed reports, which read well and are clearly the product of hard work and thorough research,
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displaying expertise in both your written and oral evidence, and
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being clearly aware of your duties to the court and seeking to assist the judge to the best of your ability.
Learning points for instructing parties
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When criticising the opposing expert, it may be wisest to base those criticisms on an objective reading of the quality of the expert’s evidence.
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Ensure that the material you rely on in making your criticisms supports the criticisms you are making.
The case
The case concerned around 40 studio recordings of performances which were given by the members of the Jimi Hendrix Experience, a band formed in 1968 between James ‘Jimi’ Hendirx, on guitar and vocals, David Noel Redding, on bass and John Graham ‘Mitch’ Mitchell, on drums.
The central questions in the action were:
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The ownership of the copyrights in recordings the studio performances made between 1966 and 1968, and
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The ownership of the performers’ property rights in relation to the participation of, respectively, Mr Redding and Mr Mitchell in the performances.
The expert witnesses
Both parties were given permission to adduce evidence from one expert in the field of New York law.
The claimants called Mr C, an attorney who specialised in complex commercial litigation, often concerning issues of contact law, copyright and civil procedure. The defendant called Professor K, the Alfred McCormack Professor of Law and a full-time faculty member at Columbia Law School. The experts each prepared a principal report, shorter second reports, and a joint statement, recording their areas of agreement and disagreement.
The judge was impressed by both experts and found their evidence to be helpful. In particular, he noted that they both:
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produced detailed reports, which read well and were clearly products of hard work and thorough research,
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displayed considerable expertise in both their written and oral evidence, and
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were clearly aware of their duties to the court and were seeking to assist the judge to the best of their ability.
The judge agreed with the submission by the claimants' counsel that “the case was a model example of how, even in hard-fought cases (as this has been), experts can rise above the fray and fully discharge their duties to assist the Court.” He accepted the invitation of the claimants' counsel to commend both of the experts on their written and oral evidence.
The criticism of Mr C
In their closing submissions, the defendant’s counsel attacked the credibility of Mr C, characterising his evidence as having “raised a number of concerns”. The alleged failures in his expert evidence included:
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misunderstanding his role as an independent expert,
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frequently slipping into arguing his case for his instructing clients,
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selective quotation,
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having a tendency to misconstrue the New York authorities to which he referred,
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attempting to fashion new arguments which were not in his expert report,
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giving speeches in the manner of an advocate,
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adopting positions which favoured the Claimants, and
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refusing to give ground when he should have done.
The judge was not persuaded by any of these criticisms and preferred the submissions of the claimants' counsel in his overall assessment of the experts. The criticisms were at odds with the judge’s own reading of Mr C’s reports and the impressions he formed when hearing oral evidence. They were also not borne out by the material the defendant relied upon in support of its criticisms. The judge highlighted some non-exhaustive examples of such material which did not bear out the criticism made of Mr C including:
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The defendant’s counsel accused Mr C, in their written closing submissions, of ignoring key premises of the reasoning in two New York cases. In the judge’s view, this was not a fair criticism. It was clear from Mr C’s written evidence, and his evidence in cross-examination, that he had not ignored any key premises. Rather he had considered the relevant case law and come to a view.
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In support of their accusation that Mr C made speeches in the manner of an advocate the defendant’s counsel, in their written closing submissions, referred to the use by Mr C, in his oral evidence, of the image of a spectrum to illustrate his point that releases fell into a category of contracts. The judge found the image of spectrum to be useful in understanding what Mr C was saying, and noted that a spectrum, or a sliding scale, is a routine part of lawyer’s language when describing a particular principle of law. The judge could not detect a hint of an advocate making a speech in this or any other part of Mr C’s evidence.
The judge’s conclusion
The judge found that Professor K was generally better able, particularly in his oral evidence, to identify and explain the principles of New York law, and also explain why he favoured a particular view of the law on points where there was a lack of clear guidance in New York law. However, the judge noted that this did not cause him to think that Professor K was necessarily right, and Mr C necessarily wrong, on any particular point in issue between the experts.
Drawing together all his analysis on the expert evidence, the judge decided that he should not prefer the evidence of one expert over the other, in relation to issues between the experts. Instead, he had to decide whose view to prefer in relation to each such issue, drawing on the evidence of New York law provided to him by the experts.