Trade Secret Damages
Client and Juror Expectations About How to Compensate the Loss of Valuable Secrets
Successful litigators or experts tend to be effective teachers and good storytellers who can adapt their messages and present a coherent thematic story, whether the audience is a client, a jury, or a judge. Teaching, as opposed to advocating and thematic storytelling, however, can be particularly challenging in trade secrets litigation, which often involves some type of amorphous product (a recipe, a formula) and ambiguous legal principles.
Persuasive and credible communication of the damages case in trade secret trials often can be even more difficult than in cases involving other intellectual property rights. For example, while patents cover discrete and tangible products, trade secrets protect more nebulous types of information, such as manufacturing processes, know-how, and business practices, whose value may be harder to ascertain and communicate. This article focuses on how to present trade secret damages claims effectively, whether to a client, a jury, or a judge, rather than how to calculate trade secret damages.
The first section of this article explores the development of the damages case with the client by counsel and the damages expert. The next section discusses the teaching of the damages case to jurors, focusing on what jurors are most likely to hear and apply with respect to the measure of harm in the trade secret trial context.