Blog – Page 2 – Packaging Expert Witness

A packaging expert should be responsible AND responsive

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

A packaging expert witness is responsible for the delivery of services, such as consulting, analysis, site inspection, testing, opining, reporting, and testifying. By responsible is meant an obligation to practice decision-making and control and to be accountable for results. Having credentials and ethics are necessary but not sufficient for the delivery of competent services to the attorney. An expert also needs to be responsive, demonstrating the ability to respond quickly, especially under deadlines; however, the quick response should not be at the sacrifice of quality.

Sometimes an expert will be retained late in the game, for example, after the attorney has failed to obtain an anticipated settlement and soon has to disclose an expert, and perhaps, that expert’s expected topics of testimony, should the case go to trial. The attorney will inform the expert about the timetable and perhaps offer an apology or two. At that point, the expert should not accept the case UNLESS the expert is positive of being able to give the case the requisite priority. An expert’s reluctance to decline a plausible case is understandable, in that every expert desires a sustaining caseload; however, the truly professional expert devotes whatever levels of time and resources that are necessary.

Even under less harried conditions, the expert should proactively exercise time management practices. Every time an expert receives case materials from the attorney, the expert should send an acknowledgement. That’s not just a courtesy; it starts the clock ticking. Even if the attorney’s cover letter open-endedly says, “Please contact me after your review,” the expert should not take inordinately long. An attorney, aware of the volume of materials sent, has an idea——even if unexpressed——of what constitutes a reasonable time for review, and, therefore, will be impressed if the expert delivers before then.

When the need for review is on the part of the attorney, the expert has another opportunity to score points. A prime example is the Expert Report. An attorney appreciates the convenience of receiving the report in ample time to: review; suggest revisions; have them made; and, review again. It’s not unusual for there to be more than one round of that sequence; therefore, an expert should submit the report accordingly.

Any type of report submitted by an opposing expert might require a response; and, not to file one could result in a strategic disadvantage. Under that scenario, an expert should: analyze the report; formulate opinions; discuss them with the attorney; and, write a rebuttal. After that, the aforementioned review/revision/review sequence tacks on more time. An experienced expert will prove equal to the task.

Another area of services in which an expert should be time-conscientious is that of testing. An expert experienced in the type of case at issue would know at the onset if testing is needed and would have a reliable idea of the type. Communicating that information to the attorney allows for effective scheduling, thereby avoiding a situation wherein neither the testing can be conducted nor the results ascertained in time for the intended use.

More examples should not be necessary to make the main point: there is a time element, of varying urgency, to much of what an expert does, giving the expert repeated opportunities to build on a reputation for on-time delivery.

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 experience of the packaging expert witness

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

Most packaging expert witnesses can claim a considerable number of years of experience in their specialties. That’s to be expected, since becoming an expert at anything requires an investment in time; therefore, what should differentiate among experts of similar lengths of experience? It’s the type of experience that determines relevancy.

An expert should bring a requisite amount of experience in whatever area is core to a given litigation; nonetheless, it’s possible for that experience to be too narrow. An expert can meet the expected length of experience in a particular industry, for example, and still not be the best choice (or even a good one) if all or most of that experience derives from a single company or institution. Such narrowness can foster myopia and thereby hamper the expert’s ability to creatively provide the attorney with services that reflect a variety of perspectives.

Even when the expert’s industry experience was gained from different companies, the specific job responsibilities deserve consideration. Managerial positions should be regarded as a plus, not only because of the demanded skills but also because of the involved participations and decision-making. Having on-the-job experience, in general, and managerial experience, in particular, should engender an attorney’s confidence that the expert has capabilities in teamwork, meeting deadlines, and producing results. The best experience weighs in heavily on the scales of the practical.

That is not to say that the theoretical should never factor into the scheme of things. That’s particularly true when the expert’s experience includes a stint in academia. Its best when the subjects taught directly relate to the litigation, but even if they don’t, having taught suggests an ability to organize information and to communicate it effectively, in both the spoken and written word. That ability is invaluable to the interactions between the expert and the attorney, and by extension, between the expert and third parties, the most important being a jury.

A question that’s always of relevance in the evaluation of an expert’s experience is: How long has the expert been an expert? It’s tempting to become enamored of an expert who promotes on having been involved in, literally, hundreds of cases. Notwithstanding that such an expert certainly knows the ropes, a caution might well be in order. If the long list is due to full-time work as an expert, or even if expert work constitutes the major portion of income, the expert is subject to being branded by opposing counsel as a hired gun. It behooves an attorney evaluating a full-time expert to probe for vulnerabilities, especially those that opposing counsel might claim are contradictory positions of the expert across different cases.

Once retained, an expert can prove to be an asset or a liability. To maximize the chances for the former while minimizing the chances for the latter, the savvy attorney assigns due diligence to the evaluation process. Given that attorneys sometimes operate under the tyranny of a ticking clock (for example, a deadline for declaring experts), it will benefit the attorney and the expert if the attorney always has a well-thought-out evaluation framework at the ready.

When packaging expert witness and attorney first talk

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

An attorney and packaging expert have their initial conversation. Common sense allows certain motives to be ascribed to the parties: the attorney wants to know whether the expert deserves further consideration; and, the expert wants to know whether to seek further consideration. Those motives are interdependent, but herein are discussed from the perspective of the expert.

After the attorney has identified himself/herself and before the conversation begins in earnest, the expert should ask how the attorney learned of him/her. The attorney doesn’t always volunteer the information, though not intentionally. If the expert advertises, it’s good business basics to know what’s working.

The expert should want only enough details to determine whether the case is within his/her bailiwick. Beyond that, the expert runs the risk of being conflicted out of the case, should the expert not be retained by the attorney but opposing counsel calls. Another risk is that the more details supplied, the more the unspoken expectation of a response from the expert. It is not the expert’s obligation, at this juncture, to opine on the merits of the case. There’s time for that after the expert has been retained.

The expert should be cordial and considerate. The expert can be both without being reluctant to steer the conversation, as needed; for example, as soon as the expert has sufficient details, the attorney should be informed, “Yes, Counselor, I’m qualified to serve as your expert;” or, “Thank you, Counselor, but I’m not the expert for you.” If it’s the former, the expert should provide a concise narrative on qualifications, highlighting those aspects relevant to the case. Then, the expert should offer to send pertinent information——curriculum vitae, fee schedule, references, and whatever else the attorney might reasonably request.

If all of the heretofore advice is followed, the result will be a relatively short and to-the-point conversation. That’s a good thing. The phone call is business, not social. Both parties are assumed to have various demands on their time; therefore, there’s a need for effectiveness and efficiency. No matter how short the call, the expert, unavoidably, beyond questions and answers, conveys much for the attorney’s consideration. There’s the expert’s command of language and ease-of-expression. Whether the delivery is halting, professorial, stilted, fluid, or otherwise, the attorney is justified in regarding it as indication of what it would be like to work with that expert in the important realm of communications. It’s equally justifiable to regard delivery as indication of how the expert would come across in a deposition and in court.

If, at the conclusion of the conversation, there’s something further to pursue, the expert’s motto should be, promptness. Whatever has been promised should be fulfilled with dispatch; otherwise, the expert gives the impression of being less than reliable.

It’s rare that an attorney will think, “You had me at, Hello.” That fact notwithstanding, for the expert, the initial conversation is a unique opportunity, in that, if not handled competently, no other opportunities will be forthcoming——at least, not from that attorney.

7 ways attorney derives more from packaging expert

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

Engage the packaging expert as early as feasible. Any veteran expert can recount instances of being contacted by an attorney who’s under a time crunch, practically needing an expert yesterday. Whatever the reasons behind the delay, opportunities have been lost. There’s a shorter time for the vetting process, especially with multiple candidates. Even if the attorney has a particular candidate in mind, that candidate might not be available, worse if the unavailability is due to having been retained by an opposing attorney. It shouldn’t be just about finding an expert who can perform under tight timing; for, whatever the performance, it arguably could be better, given more time.

For Plaintiff attorneys and Defense attorneys, alike, being proactive pays dividends, especially for a Plaintiff attorney who’s not sure of the merits of a contemplated case. Before filing the Complaint, with Discovery being scant, it’s likely that it’ll only require a few hours of an expert’s time to provide an opinion. If the expert performs impressively, and regardless of the opinion rendered, the attorney will be left with either of two favorable options: file and retain the expert; or, not file but remember the expert for future cases.

Set ground rules for the expert. Since every attorney has a preferred way of working with experts, those preferences should be made known from the onset. Attorney and expert comprise a working relationship; however, it’s not one of equals. The expert is not the advocate, and, therefore, should defer (within ethical limits) to the attorney’s ways of working a case. That’s not to suggest that the attorney needs to be a micromanager; nonetheless, it’s prudent not to leave certain issues to assumption.

An issue that illustrates that fact is work-product, more specifically, what is and isn’t discoverable. The attorney’s position on note-taking by an expert is an example. Whatever the position, does it extend to the annotating of deposition transcripts? Does the attorney take different positions depending on whether the case is federal or state? Does the attorney take different positions depending on whether the expert has been retained to only consult or to also testify? No expert wants to compromise whatever privacy privileges that attach to work-product, but necessary to such avoidance is that the attorney establishes ground rules.

Address problems with the expert immediately. No problem should be considered too small to address, although the response should be commensurate with the size of the problem. Not to do so is to implicitly endorse the problem, thereby increasing the probability of repeat or exacerbation.

While acknowledging that a problem can originate from either party, the following example addresses one from the perspective of the attorney: taking issue with——or, at least needing further explanation about—— an expert’s invoice. The expert should be able to explain and justify every item of the invoice, ideally with documentation to the attorney’s satisfaction. A problem (and it’s a big one) that never should arise is billing for work that has not been authorized; for, that’s an indication of an out-of-control expert.

Don’t choke the expert with purse strings. An attorney owes cost-effectiveness to the client; however, it would be a contradiction to that maxim to prevent the expert from performing necessary work, simply for purposes of expenses. If, for example, a site inspection by the expert is advisable or if it’s advisable that the expert see, handle, examine, etc., an exemplar, the attorney should authorize such activities. The alternative is to jeopardize the expert’s credibility. That’s a handicap that won’t escape the notice of an experienced opposing counsel, particularly if the expert’s expertise is central, for example, a packaging expert in a case alleging an unreasonably dangerous product due to defective packaging.

Frugality need not be discarded, though. Flying coach, moderate lodging, and modest dining are common-sense practices to which no expert should object. The expert can further contribute by arriving with a well-conceived agenda that is carried out with dispatch, saving time and money.

Challenge the expert’s creativity. Attorney and expert are experienced in the type of case that brought them together. Whereas the upside is self-evident, the downside can be underappreciated. The more times something is repeated, the greater the chance that the thing will be done by rote. If it ain’t broke don’t fix it. A better philosophy: If it ain’t broke, improve it. The case objectives never change: prove or disprove the allegations to a preponderance of the evidence; however, success in the pursuit of the objectives can hinge on creativity.

The expert should approach the case from multiple perspectives, constantly searching for something overlooked, something hiding in plain sight that can be utilized for a competitive advantage. An expert can endorse the attorney’s theories without being just a sounding board or a programed agent. The expert performs a valuable service by getting an attorney to rethink assumptions. An expert should demonstrate self-initiative regarding creativity, but the attorney should make it known from the onset that creativity by the expert is expected.

Involve the expert in case strategy. Valuable experts serve not only in a tactical role but also in a strategic one. For discovery, an expert can inform on the necessity of certain evidence, enabling the attorney to acquire it through requests for admission, requests for production, or interrogatories, whichever is appropriate. Using as an example the aforementioned case involving an unreasonably dangerous product due to defective packaging, the attorney who unilaterally decides on what evidence is pertinent, might not know to request a particular specification, or perhaps certain quality assurance records.

As for the other discovery tool, depositions, collaboration between attorney and expert should extend beyond the former’s preparation of the latter. An expert always should be consulted about the questions to be asked of the opposing expert. On a related note, attorneys know the wisdom in supplying experts with all pertinent deposition transcripts; however, there’s more to it than informing the expert on who said what. The attorney and expert should have phone discussions to exchange takeaways on the various deponents. Perhaps the expert has noted a technical error or some other verbal miscue by a deponent that can be utilized for strategic advantage.

Express gratitude to the expert as deserved. Well accustomed to working with experts, attorneys are not easily impressed; therefore, an attorney should acknowledge exceptional service. An expert should be committed to excellence, regardless, and when it’s delivered, recognition can be a powerful motivator and reinforcement.

Lastly, when an attorney has need for a particular type of expert and immediately thinks of a candidate based on prior collaboration, time is saved, time that can be devoted to other aspects of trying the case. That, in itself, is worth the occasional verbal pat on the back.