By Sterling Anthony, CPP, expert witness in packaging, warnings, cargo loading and securement, patent-infringement
A packaging expert witness’ performance in a site inspection depends on two factors: knowledge of the type of facility, process, machinery, or whatever happens to be at issue; and, preparation. No expert should be convinced of having knowledge in such quantities as to be able to go to a site inspection and “wing” it. On the other hand, without a requisite amount of knowledge, the expert’s preparation is sure to have deficiencies.
Having the knowledge and the ability to prepare notwithstanding, the privileges granted to the inspecting expert will depend largely on which side the expert represents. An expert inspecting the opposing side’s site, unsurprisingly, will be under more restraints than faced by an opposing expert. It’s prudent for an expert to communicate to the attorney-client what privileges are desired, so that the attorney-client can request them.
Regardless of how many privileges are granted, the expert can prepare accordingly, and, for example, need not arrive with camera, video recorder, or other equipment and not be permitted to use them. Similarly, communications between expert and attorney-client can spare the former from arriving at a site, expecting interviewing privileges, but learning belatedly that it’s not to be.
An expert should insist on being able to observe operations that are, indeed, in operation. Such daringness is justified from the common-sense perspective that there’s limited information and knowledge to be gained from dormant operations. Agreement as to what’s to be up and running should be detailed in a formal memorandum; and, if the opposing side withholds such agreement, the aggrieved attorney-client can assist the expert by threatening to cancel the inspection and/or threatening to present the argument to a judge.
Regardless of the side that retained the expert, an inspection at the other side’s site likely will be “one bite of the apple.” An expert who later realizes that something has been missed might not be accorded another inspection. It makes it all the more important for the expert and the attorney-client to agree on why the inspection is needed, what areas will be the focus, how it’s going to be conducted, and in what form the results will be communicated.
When both sides have an expert, it’s unusual for one to make a site inspection and not the other. It’s not unusual, though, for both experts to be present at the same time, a situation resulting from the host’s not wanting to schedule multiple dates, or perhaps, from one side’s wanting to witness what the other side does. Neither is it unusual for the attorneys to be in attendance. Among such company, an expert should be careful not to engage the opposing parties in conversation, other than friendly acknowledgements.
In all instances, an expert at a site inspection is a guest, there at the sufferance of the host; as such, the expert’s behavior should be professional, cordial, and respectful. It would be self-defeating for an expert to attempt to operate outside of pre-negotiated parameters; for, to do so risks a summary end to the inspection.
Finally, in addition to all of the aforementioned, site inspections always involve travel, sometimes including airfare, taxi, lodging, and meals. Whereas such expenses might be unavoidable, they obligate the expert to be cost-effective, by being efficient.
Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors who also provides services to the legal community as an expert. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com