Evidence - Chapter 7 - Arbitration of Intellectual Property Disputes in the United States
David L. Evans is co-chair of the litigation department at Murphy & King, Professional Corporation, in Boston, Massachusetts. He represents large public corporations, closely held companies and individuals in the resolution of complex business disputes.
Mr. Evans also maintains an active practice as a certified neutral arbitrator and mediator, serving in more than 350 cases. As a neutral, he has presided over a broad range of business disputes involving areas such as intellectual property rights and licenses, finance and accounting, technology development and transfer agreements, stock/asset purchases, energy, biotechnology, medical devices, real estate, private investment firms, and business separations.
Mr. Evans is a member of numerous arbitration and mediation panels, including the Commercial and Large, Complex Case Panels of the American Arbitration Association (AAA), the Panel of Distinguished Neutrals of the International Institute for Conflict Prevention and Resolution (CPR), the International Centre for Dispute Resolution (ICDR) Panel of Arbitrators and Mediators, the ICC International Court of Arbitration (North America), the Court of Arbitration for Sport (CAS) in Switzerland, the London Court of International Arbitration (LCIA), World Intellectual Property Organization (WIPO) and the AAA Master Mediator Panel.
He has been selected as a Massachusetts Super Lawyer in Business Litigation in every year the award has been offered (2006-2018), named a top-rated lawyer in ADR law by The American Lawyer and recognized with an AV Preeminent Peer Rating from Martingdale-Hubbell.
He also serves as a member of the Board of Directors of the American Arbitration Association, and as the co-chair of the Large Case Committee of its Council. For his contributions to the AAA, Mr. Evans received its Outstanding Director Award in 2014.
Theodore J. Folkman is a shareholder of Murphy & King, P.C., in Boston, where he has a complex civil litigation and commercial arbitration practice. He is a member of the commercial and consumer arbitration panels of the American Arbitration Association and has recognized expertise in international judicial assistance and other areas in private international law. Prior to joining Murphy & King, Mr. Folkman was an associate with Hill & Barlow, PC, in Boston, and judicial law clerk to the Hon. Ann Aldrich, U.S. District Judge for the Northern District of Ohio. Mr. Folkman speaks frequently at law schools and bar events on topics of private international law and is the author of several works in this area, including International Judicial Assistance (MCLE, 2d ed. 2016) the chapter on service of process in International Aspects of Litigation: A Practitioner’s Deskbook (ABA 2017), and the chapter on choice of law in The Arbitration of International Intellectual Property Disputes (Juris 2012). Mr. Folkman is a member of the Amicus Committee and former chairman of the Massachusetts Practice and Procedure Committee of the Boston Bar Association, from which he received the President’s Award in 2016. He holds a law degree from Harvard Law School, a master’s degree in political science from Columbia University, and a bachelor’s degree in politics from Princeton University.
I. Background: The Rules of Evidence
In civil actions, it is possible to give a formal definition of “evidence,” because courts invariably decide cases according to what they take to be the governing rules of law. So it is possible to define evidence as facts offered to prove a proposition that is relevant in some way to whatever legal rule governs the case. It may not always be possible to make such a general statement about all evidence in arbitration, because arbitral tribunals are not invariably required to decide cases according to the law that would apply if the dispute were heard in a court, as, for example, when the parties authorize the arbitrator to act as amiable compositeur. Nevertheless, because most arbitrations do involve the application of law, rather than more generalized ideas of equity and fairness, it is generally safe to define evidence in arbitration in the United States just as one would define it in a United States court litigation, at least as a starting point.
However, the law of evidence in the United States for court proceedings is very different from the standards arbitrators apply. The common law has developed a complex set of rules about what facts can be offered as evidence; the same is not true in arbitral proceedings. The details of the reasons for the development of complex rules of evidence for use in court are beyond the scope of this Chapter. In summary, the need for rules is said to stem from the use of lay juries as finders of fact, and thus the danger that a jury would be led astray by hearsay, for example, in a way that a judge would not be. An arbitrator, like a judge, is more able than the man or woman on the street to sift evidence and give it the weight it deserves, and perhaps this is particularly true in cases where the arbitrator is chosen for experience with the subject matter of the dispute, which regularly occurs in IP cases, as in other commercial cases. To take an example, an arbitrator in a licensing dispute who is familiar with an industry and knows what typical invoices and other commercial documents are and how they work likely does not need a business record foundation laid in order to consider the documents for what they are worth; an arbitrator familiar with trademark registrations likely does not need to concern himself with the technical requirements of authentication of the certificate.