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