USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Brandon R. Weber and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
(ordering the production of emails exchanged between the plaintiff and litigation financier).
As in any other civil litigation, the party with the burden of proof is given the opportunity to pre - sent its case, which may consist of an opening statement, testimony of fact and expert wit - nesses, and a closing argument. The oppos - ing party will generally have the opportunity to cross-examine each witness after they provide direct testimony. After the party with the burden of proof rests, the opposing party presents its case, consisting largely of the same elements. The case is then submitted to the jury to render a verdict, or to the judge for an opinion and order in a bench trial. Trial length can vary considerably. While courts tend to allot a minimum of three to five days for trade secret trials, an exceptionally complex trial involving numerous fact and expert witnesses or novel technologies could stretch to three months or more. 6.3 Use of Expert Witnesses Expert testimony is often important in trade secret misappropriation cases as a means of explaining complex issues to the finder of fact, especially where the trade secrets at issue are technical in nature. Experts may be used for a variety of purposes, including to support or rebut the contentions that a party possesses protect - able trade secrets and takes reasonable steps to protect them, and that the defendant misap - propriated and used the trade secrets in its own products or services. Computer forensic experts may also provide valuable opinions and testimony related to the access and misappropriation of trade secrets and computer systems and networks. As in other types of litigation, economic and financial experts supporting damages remedies may be useful to estimate or forecast liability for the mis -
6. Trial 6.1 Bench or Jury Trial
Although trade secret plaintiffs seeking dam - ages are generally entitled to a jury trial, they should consider the likely composition of the jury pool and the pros and cons of jury trials before demanding a jury trial. Trade secret cases involv - ing exceptionally complex technologies within narrow industries run the risk of confusing a jury, so plaintiffs should take into account the range of educational backgrounds and industry affilia - tions of potential jurors. In cases involving alleged misappropriation by a former employee, jurors may be more sympa - thetic to typical defensive themes such as the employee’s right to take their expertise to a new job without fear of reprisal. Nevertheless, due to the comparatively higher damages awarded by juries, jury trials will often be preferable to bench trials for most trade secret plaintiffs. In certain jurisdictions, however, measures of damages such as unjust enrichment may not be triable to a jury and will instead by submitted for adjudica - After the close of discovery and the resolution of any dispositive motions, the case will proceed to trial on any remaining claims or issues. Depend - ing on the jurisdiction and individual practices of the court or judge, a trial may be scheduled near the outset of the litigation at a case management conference, or it may be scheduled on relatively short notice after it is clear to the judge that the case is “ trial-ready ”. tion by the court. 6.2 Trial Process
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