Left: will fixed-fee packaging for damages assessment lead to good value -- or to commoditisation?
According to Andrew Carter, Managing Director of Ocean Tomo’s Expert Testimony Practice:
"While law firms have already been moving in this direction by providing flat fee services, instituting cost caps, and providing firm budgets, expert testimony has remained more of a traditional ‘pay by the hour’ business. Given the changing nature of the patent infringement landscape, the traditional system may be inappropriate for some cases or certain clients".According to the report, pricing will typically range from US$10,000 to US$45,000 per phase for participating experts.
In a notoriously open-ended area like the cost of patent litigation, a flat-fee system for assessing damages means that at least one element of the litigation bill can be confidently predicted and budgeted for -- but not everyone will welcome the move. Per-hour fees are the fruits of a professional relationship, while fixed fees are the sign that those services have become a commodity. If Ocean Tomo's service catches on, market forces will find it impossible to resist entering into competition -- and where price-sensitivity is the reason why a litigant opts for a flat-fee assessment, that same price-sensitivity may drive the same litigant to the cheapest damages assessment package, squeezing profit margins and putting quality of service at least in theoretical jeopardy.