sterlinganthony1@sbcglobal.net – Page 3

Packaging expert on the value of objections

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement, insurance claims on damaged cargo

Of all rules of testifying, there is one that a packaging expert should hold as inviolate: Always tell the truth. To do so, however, requires that the expert hear the question, understand it, give due reflection, and THEN give a truthful response.

As a consequence, at deposition and at trial, the expert needs to stay vigilant, constantly alert and attentive. It can take its toll, especially under lengthy examination.

Rare is the examination that is not interrupted by objections; and, when they come, the expert might regard them as respites, opportunities to tune out and to relax, as the attorneys wrangle. Such would be a mistake. An expert should regard objections as valuable information.

Since attorneys typically begin with the word, objection, before proceeding to declare what kind, all present are immediately put on notice. Just as immediately, the expert should STOP, even if in mid-sentence, even if in mid-syllable. If it’s a deposition, the expert should not make another utterance until the attorney-client gives permission to answer; if it’s at trial, silence should be maintained until the judge’s ruling. Such restraint might be difficult for inexperienced experts, victims of a misguided eagerness to demonstrate their ability to answer all questions.

An expert should understand that it’s not uncommon for the same objection to be raised by both attorneys, at different times during the testimony. The expert can stay focused by remembering that it’s an adversarial system. Attorney-clients want to protect their experts’ credibility and effectiveness; opposing attorneys want to undermine it. If, for example, an opposing attorney objects to form, to ambiguity, to the question as compound, or something else along those lines, the motive won’t be to clarify the question as a favor to the other side’s expert. The expert should be ever mindful that the operative word in the term, opposing attorney, is, opposing, no matter how seemingly congenial the attorney.

In contrast, an opposing attorney who’s disrespectful and overbearing is likely to draw an objection from the attorney-client. The expert should not regard the objection as merely protective nor as license to match the opposing attorney’s behavior; instead, the expert should regard it as an unspoken instruction to remain professionally calm. The stark contrast between the conducts of expert and opposing attorney will be evident in a deposition transcript and even more so before a jury.

In a different, although, related example, rather than regarding an attorney-client’s asked-and-answered objection as relief from the tediousness of repetition, the expert should regard it as an indication that the attorney-client is satisfied with the answer. An inexperienced expert might alter the answer, in an attempt to better make the point, thinking that the alteration is not substantive. That’s risky because it opens the door for the opposing attorney to exploit the differences in answers. An experienced expert, under these described conditions, will give the same answer to the same question, no matter how many times the opposing attorney asks.

On direct examination, the expert can benefit from certain objections from the opposing attorney. Good examples include: leading; argumentative; and, assumes facts not in evidence. Whether they come during a deposition or a trial, embedded in the question that drew the objection is the attorney-client’s preferred answer. Knowing that, the expert must determine whether it’s possible to ethically give that answer, consistent with the sworn oath. Incidentally, the same advice can apply during cross-examination, if the opposing attorney characterizes an objection made by the attorney-client as a speaking objection.

When during cross-examination the opposing attorney declares, “Objection. Non-responsive. Move to strike,” and it’s sustained, the expert should not attempt to append the answer to a later question. The backdoor tactic likely would draw the ire of the judge; furthermore, the expert could be seen as behaving like an advocate. An attorney-client who wants the answer in the record can solicit it through a properly-worded question during redirect examination.

An expert who has been adequately prepared by the attorney-client will know what will be asked during direct examination. That, plus the open-endedness of the questioning, might lull the expert into long narratives, even though the expert should be committed to complete, but succinct answers. To that objective, an experienced expert can recognize the attorney-client’s objection, even when it’s not in the classic form. If, for example, the attorney-client interjects, “Thank you, Mr./Ms. Expert for your answer,” the translation is, “You’ve said enough.”

On the other hand, if, during cross-examination, the opposing attorney tells the expert that the question has been answered, the expert likely will still be in the process of answering. The attorney-client likely will raise an objection, requesting that the expert be allowed to finish; but, even if the attorney-client doesn’t, the expert should insist on being allowed to finish. The expert should always remember: sworn testimony is carved into a permanent record; and, the expert will not have the convenience of having it assumed what would have been said had the expert finished the answer.

The expert should regard certain objections as red flags, regardless of which side raises them. Examples are, “Calls for speculation,” and “Calls for a legal conclusion.” At trial, the judge’s ruling might prevent the expert from answering; however, in a deposition, the attorney-client will give the expert permission to answer. Under the former objection, the expert should be careful not to give an answer that might suggest a propensity to guess. Such would undercut the expert’s reliability. Under the latter objection, the expert should be careful not to give an answer outside the expert’s area of expertise, assuming, of course, that the expert is not an attorney. Such also would undercut the expert’s reliability, in addition to exposing the expert to possible disqualification at trial.

Not all objections have been mentioned herein and they don’t have to be in order to make the point that an expert needs to know that there’s value in staying attuned to objections. If an expert demonstrates that knowledge, the attorney-client likely will raise no objections to retaining the expert in the future.

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

Packaging expert witness on inadequate warnings

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading and securement

Synopsis of case

A woman applied a hair treatment. Soon thereafter, she lit a cigarette and her hair caught fire. By the time she extinguished the fire, she had suffered disfiguring burns. She was not aware of any hazard associated with the use of the product in combination with smoking. The ensuing litigation alleged an unreasonably dangerous product by virtue of inadequate warnings.

I was retained by the attorney for Plaintiff.

My opinions

The warnings on the label were inadequate because they did not address the hazard of flammability, in general, nor of smoking cigarettes or other tobacco products, in specific.

The literature is clear on a number of principles. A warning is needed whenever there is a hazard not obvious to a reasonably alert person. In circumstances in which a person has knowledge of a hazard, a warning still can be needed as a reminder. As to content, a warning should: contain a signal word reflective of the severity of the hazard; identify the hazard by type; convey the consequences; instruct on avoidance; and, if warranted, provide first-aid information. As to format, a warning should: be conspicuous; be unambiguous; and, when practical, use pictograms (icons) in addition to wording.

Facts unfavorable to the Defendant included: the product’s Material Safety Data Sheet acknowledged that the product is flammable and warned to keep away from open flame; even if the warning to keep away from open flame had appeared on the label, it would not have been specific enough to be associated with smoking; the manufacturer knew of other similar incidents involving its product; and, some of the labels on competitor’s products carried warnings about flammability, staying clear of open flame, and about not smoking while the product is wet on the hair.

Result

The case settled.

The packaging expert witness on site inspections

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.

Packaging expert witness in design patent-infringement

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement, and insurance claims regarding cargo.

Synopsis of facts

A trio of inventors were granted a design patent of a type of food container. For years, the assignee company had been selling the container before becoming aware that another company was selling a container, which, according to the assignee, infringed on the design patent. Litigation resulted.

The Defendant claimed that Plaintiff’s design was not unique and was confusingly similar to the prior art cited in the prosecution file history.

I was retained by the attorney for the Plaintiff.

An expert is not allowed to opine on the ultimate question of whether there has been infringement; nonetheless, my services involved consulting, advising, and applying my expertise to the comparisons between the patented design and the cited prior art. I also wrote reports and testified at trial.

My opinions

The prior art cited in the prosecution file history contained no design that is confusingly similar to that of the design patent-at-issue. In a comparison of the two aforementioned, the containers that practiced the design patent-at-issue emerged as unique as to their decorative/ornamental (i.e. non-functional) features. Those features were described by the drawings/figures of the design patent-at-issue; however, I provided a detailed comparison feature-by-feature.

The prior art cited by the defense contains no design that is confusingly similar to the design patent-at-issue. The same type of comparison of decorative/ornamental features referenced above was performed

Prior art known to me before I was retained for the case-at-issue contained no design that was confusingly similar to the design patent-at-issue. Again, I performed a detailed comparison of decorative/ornamental features.

Lastly, prior art, contained no design that was confusingly similar to the accused design, such determined by the same detailed comparison cited variously above.

My conclusions were: the patent design-at-issue was unique and that any comparisons between it and the prior art reveals differences in decorative/ornamental features, such that an ordinary observer would not confuse the patent design-at-issue with the prior art; and, nor would an ordinary observer confuse the accused design with the prior art.

Result:

Verdict for Plaintiff

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert who provides services to the legal community. 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

Packaging expert witness not omniscient

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement, and insurance claims regarding cargo.

If there’s one answer that some testifying experts seem to have a hard-wired reluctance to utter it’s, “I don’t know.” By virtue of being an expert, that person is presumed to be knowledgeable; nonetheless, being omniscient is not in the job description.

There is nothing inherently wrong for an expert to say, “I don’t know.” In all instances it’s an admission, an acknowledgement, a confession, a concession; however, in no instance should it be a mea culpa.

There are answers that a testifying expert should have at the ready. That’s because, by then, the expert should be acquainted with the case file. In addition, by then, the expert should have been prepped, told what will be asked by the attorney-client and what might be asked by the opposing attorney. Having that storehouse of knowledge, an expert should bring a quiet confidence to the proceedings, committed to listening to the questions, understanding the questions, taking time to formulate answers, and, then answering truthfully. If that last step dictates an, “I don’t know,” so be it.

There are various ways that an expert can mishandle not knowing an answer; however, the worse is to give an answer that is factually incorrect. The consequence to the thusly exposed expert is not just embarrassment but discredit. Almost as bad is to deal in conjecture. Even if the expert’s preamble is, “I’m guessing…,” a fundamental principal of testifying will have been breached.

An expert should guard against beginnings that are defensive and apologetic, as exampled by, “I’m sorry, but I don’t know,” or, “I’m afraid I don’t know,” or, “I must admit, I don’t know.” Some opposing attorneys have a talent for triggering such responses through voice inflection, body language, eye-contact with the jury, or other tactics meant to imply that a reasonable expectation is for an answer other than, “I don’t know.”

If the follow-up question is “Why don’t you know?” the expert should not be intimidated, no matter how incredulously the question is posed. In the absence of a sustained objection by the attorney-client, an expert should be able to answer in a way that does not bespeak dereliction.

An expert should be aware that a line of questioning by opposing counsel might be designed to repeatedly draw the response, “I don’t know.” The expert should not succumb to concerns over being regarded as unknowledgeable nor to concerns over diversifying the responses. An expert who has come adequately prepared is not the best target for the aforementioned line of questioning, the reason being that opposing counsel will need to go increasingly farther afield to sustain the tactic. The opposing counsel who ventures into the irrelevant is not immune to taxing the patience of the Court and jury.

An expert should not confuse, “I don’t know,” with, “I don’t recall.” The latter should be reserved for instances in which the expert either once knew or might have known something but presently can’t bring it to mind. “I don’t recall,” is difficult to disprove; even so, an expert should not resort to it dishonestly. One who does might have the memory “refreshed” by being shown what was said in a deposition, for example. At such time, the jury will be keyed in, forming impressions on whether the I-don’t-recall claim was truthful.

An expert should never utter, “I’m not sure,” unless in association with having been asked, “Are you sure?” Then again, if the expert was not sure, the initial response should have been, “I don’t know.” Relatedly, when giving an estimate, the expert should let it be known that the response is an estimate; otherwise, “I don’t know,” is the advised response.

In summary, an expert should know that an essential part of testifying is the effective use of, “I don’t know.”

Packaging expert witness on forklift safety

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

A man was killed at a worksite when a rack of architectural glass fell from a forklift truck, crushing him. At the time, the man was one of two spotters serving as the “eyes” of the forklift driver, whose vision was obstructed by the load.

The ensuing litigation was against the manufacturer of the glass and against the manufacturer of the rack (known as an L-Buck because its side-profile resembles that letter) and alleged that the rack constituted defective packaging and that the rack should have contained warnings.

I was retained by the attorney for the Defendant glass manufacturer.

My opinions:

The direct and proximate causes of the fatality were breaches of standards governing forklift safety. The use of L-Bucks is regarded as a best practice throughout the architectural glass industry and is safe under the aforementioned standards. There is no need for warnings of the type alleged in the Complaint.

In his deposition, the forklift driver testified that obstacles close to the L-Buck prevented him from lifting it from the rear, so that the weight would lean against the mast, as he knew he should have done. He lifted it from the front to position it away from the obstacles; however, he didn’t set it down to reinsert the forks from the back. As a consequence, he traveled with the weight leaning forward, causing the load to rock unsteadily. In contrast, standards mandate that loads be carried low to the ground, forks angled upward, and the weight against the mast.

In his deposition, the forklift driver testified that the size of the load obstructed his vision as he drove the forklift in forward gear; so, he recruited two spotters to direct his travel. In contrast, standards mandate that the driver operate the forklift in reverse when vision is obstructed.

In his deposition, the forklift driver testified that the spotter who got killed was in front of the forklift at the time the load fell forward. In contrast, standards mandate that pedestrians in the vicinity maintain a safe distance from an operating forklift and that the driver remain alert to their presence.

In his deposition, the forklift driver testified that there came a time when the load rocked so violently that it came off the forks, during a time when the spotter who got killed was trying to manually steady the load. In contrast, the load would not have come off the forks had the driver been operating in accordance with standards; furthermore, the spotter would not have been trying to steady the load had standards regarding pedestrians been followed.

The L-Buck did not have a design defect by virtue of it being possible for a driver to carry it in the wrong orientation. There is no feasible way for a device designed for forklift handling to only permit entry of the forks from one direction. OSHA standards dictate that all forklift drivers be certified, meaning that they have been trained in safe operation practices.

The L-Buck did not have a marketing defect by virtue of not carrying warnings as to the correct way to engage the load and travel with it. Forklift drivers are sophisticated users, certified in safe operation practices. Besides, the forklift driver admitted that he knew the correct way to engage the L-Buck.

Result:

The case settled.

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert to the legal community. 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

The packaging expert witness on yes-or-no questions

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

To an experienced packaging expert witness, a yes-or-no question is not one that CAN be answered that way but one that SHOULD be answered that way. Knowing the difference is an important aspect of an expert’s testifying skills.

Opposing attorneys, immediately after posing a question, might add, “Mr./Ms. Expert, it’s a yes-or-no question.” Something to the same effect might immediately precede the question, for example, “This is going to be a yes-or-no question.” In either version, it’s the expert who should reserve the right to classify the question.

It is the expert who is under oath to tell the truth, the whole truth, and nothing but the truth; so, if a yes-or-no answer does not constitute the best compliance with that oath, the expert should speak up accordingly. “I can’t answer the question truthfully with yes or no, Counselor.”

If an expert gives such a response, it ALWAYS should be in good faith and never an attempt to undermine the opposing attorney’s effectiveness. The latter is being an advocate, which is not the role of an expert; besides, when the expert proceeds to give the expanded answer, the jury will decide whether the expert has been disingenuous.

Sometimes an opposing attorney will interrupt, saying that the expert will get an opportunity to expound during redirect. The problem is that the attorney-client might not have plans to redirect, and, even to the contrary, would have a shorter redirect, if the expert does not move away from an honestly-held claim of not being able to truthfully give a yes-or-no answer.

An expert who gives a yes-or-no answer and then attempts to add context (i.e. “Yes, but…” or “No, however…”) also might be interrupted, this time with, “Thank you. You’ve answered my question.” The expert immediately should make it known that that’s not the case; better yet, the expert should begin the answer with the context.

Since court rules allow cross-examinations to utilize leading questions, and since such questions, by nature, lend themselves to yes-or-no reminders, an expert should expect them. But no matter how authoritatively a yes-or-no reminder is posed, an expert should regard it as a request, an expressed desire by the opposing attorney and not binding on the expert.

In contrast, an inexperienced expert might misjudge yes-or-no as a demand and feel obligated to comply. That misjudgment is particularly possible if the attorney-client doesn’t voice an objection; however, such reliance on the attorney-client fails to recognize that an attorney-client has to cite a reason for an objection, other than the opposing attorney’s lobbying for a yes-or-no answer.

The inflection in which a yes-or-no question is posed can imply that the issue is so simple that the expert should give the sought response, a tactic that might cause the expert to comply, out of a desire to be seen as competent. The far better way that an expert can demonstrate competence is to fully understand a question and then give a reasoned answer.

All of the preceding comments have been from a scenario in which the opposing attorney characterizes the question as being the yes-or-no type; but, that doesn’t mean that it never comes from the attorney-client. When it does, it might be an indication that, theretofore, the expert has been too given to narrative, or worse, has been guilty of volunteering information.

It is the expert’s name that appears on the subpoena duces tecum, the deposition transcript, and the witness list: the point being made is that it’s the expert’s testimony, and that it’s the expert who must take responsibility for it. The expert should be satisfied with each answer, knowing that a permanent association is being made. Skillful handling of yes-or-no questions will lessen the probability that, someday, the expert will need to qualify a previously-given answer.

Packaging expert witness discusses miscommunications

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

Packaging is a medium, using graphics and structure to communicate. The communications can be explicit, for example, that which is conveyed by copy and images. The communications also can be implicit, forming the bases for any variety of perceptions. With any form of communication, the message intended is not always the message received; likewise, packaging sometimes miscommunicates, with varying consequences.

Children, because of their limited powers of discernment, are particularly vulnerable to miscommunications. Child-resistant (C-R) packaging is meant to address that vulnerability, but is best effective in the most foreseeable situations, for example, when the product embodies an inherent hazard. There are less obvious situations, in which the hazard derives from a miscommunication by the packaging. Examples include instances in which children mistakenly consumed products because the packaging was similar to that of another product. A canister of a leading brand of cleanser resembles that of a leading brand of grated Parmesan cheese. A box of pet food can be mistaken for cereal. See-through packaging can be a problem; for example, a liquid pine cleaner resembles apple juice, as does red shampoo resemble soda. By appearances, the contents of laundry detergent pods can be mistaken as edible.

A different type of miscommunication is when the elements of the packaging contradict one another. The labeling on the back of an aerosol can of furniture polish warns against its use on wooden stairs; however, on the front of the can are drawings of use applications, including one of a set of stairs with banisters. The accompanying copy mentions——among other applications——that the product can be used on bannisters; unfortunately, a consumer, having not read the copy, misinterpreted the drawing, sprayed her stairs, and suffered a fall. The misinterpretation aside, the packaging miscommunicated, in that, even if a consumer used the product on bannisters, the spray could land on the stairs.

When miscommunication by packaging results in litigation, either party should retain an expert, ideally one whose background includes experience in package research and design. Such as expert is well-positioned to opine whether the miscommunication was reasonably foreseeable and what methodologies would have foretold of likely miscommunication.

Packaging expert witness on cargo loading & securement

Sterling Anthony, CPP, expert witness, packaging, human factors, cargo loading & securement

Case synopsis:

A man operating a motorcycle sustained serious injuries when he collided with one of several industrial rolls of paper that had spilled off of an overturned flatbed trailer truck and onto the highway.

The ensuing litigation against the trucking company alleged negligence, claiming that the rolls had not been loaded and secured in accordance with applicable standards. Suit was also brought against the state of California, claiming inadequate maintenance of the involved stretch of highway.

I was retained by the attorney for the trucking company Defendant.

My opinions:

The loading and securing of the cargo was subject to federal standards, both the general requirements governing all categories of cargo plus the commodity-specific requirements governing rolls of paper weighing 5,000 lbs. or more.

The rolls of paper had been loaded and secured in accordance with the applicable standards. The claim that they hadn’t been, based on their having spilled onto the highway, was not justified. No standard——federal or otherwise——sets forth an expectation that cargo must remain contained and intact in the event of a truck rollover.

The rollover was not the result of improper loading, for example, improper weight distribution. Nor was the rollover the result of improper securement; for, prior to the rollover, the cargo had remained restrained in place.

Discovery revealed that the curved section of highway where the rollover occurred had been the scene of other such rollovers. Discovery also revealed that the driver of the truck had been ticketed for having negotiated the curve at too high a speed, given road conditions and ambient lighting.

Plaintiff’s expert opined that, had an enclosed trailer been used instead of a flatbed, the cargo would not have spilled onto the highway. Such an opinion was hypothetical, at best; more relevantly, the applicable standards allow for the use of flatbeds.

Whatever factors were causal to the accident, inadequate loading and securement of cargo was not among them.

Result:

The case settled.

The packaging expert witness on testimony style

By Sterling Anthony, CPP, expert witness in packaging, human factors, warnings, patent-infringement, cargo load & securement

Although depositions occur more frequently than trials, what they share in common is that they come late in the case. Every deposition is preceded by discovery along with its associated expenditures of time, costs, and resources. By the time of trial, the aforementioned expenditures have increased, as a result of all that goes into trial preparation.

With the signature aspect of depositions and trials being testimony, it stands to reason that ANYTHING and EVERYTHING that has been expended, prior to testimony, can be affected———for better or worse———by what is said after the administration of the oath. That’s true of every type of witness; however, a packaging expert——turned packaging expert witness——should stay mindful of the uniqueness of that role. The expert’s stock-in-trade is opinions, BUT it’s more than a matter of substance that determines efficacy; it’s also a matter of style.

Appearance, in terms of grooming and attire, is important. For depositions, it has become common for the attorneys to be casually dressed. An expert’s attire shouldn’t get too relaxed; for example, a male would be well served with a sports jacket, which can be taken off, if consistent with the mood in the room. A female expert also should subscribe to the casual-but-not-too-casual guideline. An expert should ask well in advance whether the deposition is to be videotaped. If it is, the expert should arrive dressed more formally, as one would for trial, against the possibility that portions might be shown to a jury.

For trial, men can’t go wrong with a clean, crisply-pressed, dark suit, either of a solid color or a subdued pattern. Neither the shirt nor the tie should be flashy. Jewelry should be keep to a minimum (wristwatch and wedding ring, perhaps) and absolutely no lapel pin that denotes a particular membership, cause, or philosophy. Women should abide in equivalent measure. For either gender, the attire should not speak louder than the expert.

An expert’s behavior is vitally important. The legal system is adversarial; nonetheless, the expert should never give the impression of being an advocate. Opinions that come across as unbiased and without agenda carry greater credibility.

The expert who is overly defensive or overly combative sacrifices effectiveness. An example is the expert who refuses to make any concession, no matter how logical, to opposing attorney. Question to expert: “If the assumptions that factored into your opinions are incorrect, would that change your opinion?” Answer by expert: “No.” By such an exchange, the expert has given the impression of being inflexible, a characterization that could have been avoided with a different, more reasoned answer, perhaps along the lines of, “That would depend on the specific assumptions you’re referring to and on how substantive they were in the formulating of my opinions.”

At no time should an expert demonstrate frustration or impatience, for example, over being asked the same thing repeatedly, something more likely to be encountered during a deposition, since at trial the retaining attorney will give an asked-and-answered objection, after which, the judge will make a ruling.

Moreover as to depositions, the expert should never demonstrate hurriedness, even when having been previously informed that the deposition is to take a specified amount of time. If it runs over, it should be regarded as the concern of the attorneys, not of the expert. Under all conditions, whether at deposition or trial, the expert should take the proper time to understand the question and to provide a thoughtful answer.

An expert’s attitude——or, at least what attitude might be inferred——likewise, is vitally important. A professional, respectful demeanor always should be extended to the opposition, no matter what the provocation to get riled.

On a different, although related note, an expert should not convey an attitude of superiority. It’s not self-serving for an expert to ridicule a question, for example, or even to engage in banter with opposing counsel.

Specifically, in a trial, the testifying expert has been proffered by the retaining attorney and qualified by the Court; as such, there’s no reason to convey an attitude of being the smartest person in the room, a surefire way of alienating a jury. In keeping with that, the expert should guard against facial expressions and gestures that signal a less-than-serious regard for the opposition.

Also to be avoided is having the pendulum swing too far in the opposite direction, which happens when the expert is too chummy with opposing counsel, as if to have forgotten that the operative word is, opposing. In a deposition, the expert should not digress into personal asides, even off the record. At trial, the expert should not attempt to lighten matters with humor, even the self-effacing variety.

Style-consciousness should not end at the conclusion of testimony. After a deposition is over, the expert should make a prompt exit, rather than remaining to socialize, which might result in an inadvertent gift to the opposing side. If there is some debriefing to be done by the retaining attorney, it should be done privately. After trial testimony a prompt exit, likewise, is advisable, in that, someone has eyes on the expert until the expert clears the door. Even in instances of sitting in on later testimony, the expert, now known to the jury, should be more self-aware than others in the gallery.

Establishing rapport with the jury overarches all of the preceding comments. It’s something that every expert should strive for; however, it’s important not to be obvious in the attempt. The expert, at all times before the jury, needs to project professionalism personified, under an aura of it being par-for-the-course.

And, the expert should not overlook little things that can have big impacts. An example is occasionally looking in the direction of the jury and making eye-contact during answers and always when providing an explanation. As for providing explanations, the expert should stay reminded that the jury is comprised of laypeople and take care neither to talk over their heads nor condescendingly down to them.

The retaining attorney is use to prepping experts as to substance, the, what to say. The how to say it and all its engendered perceptions is less under the direct control of the retaining attorney. That said, the expert who’s already style-savvy should be held in high favor. An expert who testifies with substance AND style, tells, The truth, the whole truth, and nothing but the truth——EFFECTIVELY.