Nimmer Expert Testimony Excluded: Copyright Treatise Authors As Expert Witnesses

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On June 16, 2011, the Ninth Circuit Court of Appeals upheld a district court’s decision to exclude the expert testimony of David Nimmer, current author of the well-known treatise Nimmer on Copyright Law.  Since taking over from his father, Melville Nimmer, as author of that treatise (more on that debacle some other time), David Nimmer has from time to time hired himself out as an expert witness in copyright cases.  Often times his “expert report” essentially reads more like a brief than a typical expert report, with a factual recitation relating to a topic like substantial similarity or protectability, then a summary of precedent, complete with citation of precedent and his own treatise leading up to Nimmer’s own legal conclusion based upon his application of his view of the facts to his view of the law.  I have always been somewhat dubious of this kind of “expert” evidence.  It seems to me that it seeks to supplant the role of the judge (with respect to the law) and jury (with respect to ultimate evaluations like substantial similarity), and also to coat pure attorney advocacy with the varnish of perceived (perhaps by a jury) independence and “expert” legitimacy. [Read more…]