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.
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