markteting – Packaging Expert Witness

The case of ego vs. testimony

by Sterling Anthony, CPP, expert in packaging, marketing, logistics, human-factors, and warnings.

For an expert, ego is a job requirement; otherwise, there is no justification for holding oneself out as more knowledgeable, than is the jury, the attorneys, and the judge, about a subject before the court. Too much ego, however, undermines an expert’s effectiveness, particularly when testifying at deposition or at trial.

Too much ego does not mean that the expert is egotistical, or worse, egomaniacal. Such extremes are difficult to mask and likely would have manifested themselves before a matter progressed to testimony. Too much ego is any amount that hurts the case; after all, an expert is retained to be an asset, not a liability.

Rational experts don’t intentionally sabotage their testimonial effectiveness; therefore, they must guard against doing it unintentionally. One safeguard is to avoid being needlessly defensive.

When testifying at deposition, the expert’s qualifications, through vetting, already has been accepted by the retaining attorney. When testifying at trial, the expert’s qualifications, through proffer, already has been accepted by the court. The expert should bear those acceptances in mind and not fall into a defensive posture, distracted from letting the soundness of the testimony prove his/her qualifications.

The opposing attorney will appear unimpressed, and, overtly or covertly, impugn the expert’s qualifications vis-à-vis the matter-at-issue. That’s the nature of the adversarial system, and the expert should not be seen as taking umbrage, as if to say, “How dare you, when I’m the smartest person in the room.”

The expert should not engage in verbal combat but should leave it to the retaining attorney and the judge to reel in an overreaching opposing attorney. The expert should refrain from giving snide responses or saying anything personally directed at the opposing attorney. The expert who descends to that level has lost perspective.

It particularly can be damaging at trial, when everything is on the line and so much time and resources have been expended in getting to that point. The last thing needed is for the expert’s ego to alienate the jury.

Regarding what’s important, it’s about the expert only to an extent; what’s most important is the retaining attorney’s theory of the case. In that regard, the expert should subscribe to a Hippocratic oath, of sorts, in that, first, do no harm.

An expert’s susceptibility to allowing ego to interfere with testimonial effectiveness might not be discovered during the vetting process; therefore, the retaining attorney needs to stay alert to warning signs.

It’s a warning sign whenever the retaining attorney’s responsibly for case strategy is challenged by the expert, beyond the giving of advice. It’s a warning sign, for example, when the expert resists any and all proposed changes in his/her Report, down to the last comma. More worrisome is the expert who ignores instructions, for example, when the retaining attorney, concerned with what’s discoverable by the opposing side, specifies the channels (phone, email, regular mail) through which communications are to be made.

The saying goes, “Check your ego at the door.” That might not be totally possible or even desirable for the expert; nonetheless, ego should not be allowed to negatively affect the testifying expert’s temperament and comportment.

Sterling Anthony’s contact information: 100 Renaissance Center-Box 176, Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

Expert discusses court entrance

by Sterling Anthony, CPP, expert in packaging, marketing, logistics, and human-factors.

An expert’s impact on a jury does not being with testimony; rather, it begins with the expert’s entrance into the courtroom. When the judge instructs the attorney to call the next witness and the attorney responses with a name, jurors ready themselves for a new stage in the proceedings.

The expert should walk to the witness stand at a normal pace, while mindful of good posture. The expert should avoid the impression of wearing blinders; instead of a gaze fixed straight ahead, the expert’s head and eyes should divert normally, taking in the surroundings, an acknowledging nod or two, if appropriate.

As the expert walks to the witness stand, the jury sees the expert’s outer attire, and nothing about it should be off-putting. Testifying is serious business; as such, the expert only should wear business attire, preferably of a conservative style.

During the oath, the expert should stand tall, while maintaining eye-contact with the person administering the oath. A confident, “I do,” or even more succinct, a “Yes,” clears the way for the expert to be seated.

The expert should not nestle into the witness chair, using unnecessary adjustments that might be perceived by the jury as nervousness or lack of confidence. At this time, the expert should adjust the microphone, preventing having to lean or otherwise change posture with each answer. If water is within reach, this would be a convenient time to pour a drink, to have it at the ready for later consumption.

Now it’s time for testimony, to help the jury understand the issues pertaining to the expert’s specialty. Throughout, the expert should not let the effectiveness of the testimony to be sabotaged by errors in comportment. It begins with the entrance; after all, no one gets a second chance to make a good first impression.

Sterling Anthony’s contact information is: 100 Renaissance Center, Box-176, Detroit, MI 48243; 313-531-1875; www.thepackagingexpertwitness.com; thepackagingexpertwitness@gmail.com

The packaging expert witness on composing an Expert Report

By Sterling Anthony, CPP, expert witness in: packaging, logistics, marketing, warnings, patent-infringement, and cargo loading & securement.

From the onset, a packaging expert witness should regard an Expert Report as a communication of persuasion, the purpose being to convince stakeholders that the contained opinions are true within the standard of a reasonable degree of certainty. The stakeholders will vary in their willingness to be convinced, and the opposing side will be skeptical, if not hostile. The Report, therefore, should constitute a gestalt, the whole more than the sum of its parts.

In federal cases, an Expert Report must comply with the statutory elements detailed in Rule 26 of The Federal Rules of Civil Procedure; and, although an Expert Report in state cases isn’t governed under that rubric, it must embody certain elements, just to meet the threshold of professionalism.

Whether the venue is federal or state, an Expert Report should contain: the case caption; the expert’s name and business address; the client-attorney’s name and business address; a statement of purpose; a summary; a synopsis of the facts; an explanation of methodology; list of case materials reviewed; list of references i.e. books, articles, standards, tests, etc.; discussion of opinions; conclusions; statement as to the right to supplement; and, date and signature (notarized, if required).

As for aesthetics, the look of the Report should invite reading; however, as fundamental as that is, it’s only window dressing, if the Report fails in other key aspects. Opposing counsel will dissect the Report for opportunities to shoot holes in it. The experienced expert will not supply ammunition, in the forms of: poor grammar, spelling, and punctuation; poor paragraph composition; disjointed sequencing; imprecise wording; a lack of command of the facts; weak correlation between opinions and Counts contained in the Complaint; distortion and misrepresentation; and most damaging, faulty reasoning and fallacious logic.

An expert should not rely on the client-attorney as proofreader, despite the fact that no client-attorney will submit to opposing counsel or to the Court an obviously flawed Report. Opposing counsel, believing the Report to be flawed, will eagerly await deposition or trial. A worse possible consequence of a flawed Report is that the Court disqualifies the expert. Another incentive against composing an inferior Report: in some states, juries are given access to Reports. That aside, an expert can’t be effective in front of a jury if the majority of cross-examination is spent defending an ambiguous, or otherwise, flawed Report.

It’s common practice for a client-attorney to request strategic changes to the Expert Report. An example would be a rewording that more effectively captures a particular legal concept. What’s not common practice is for a client-attorney to have to essentially rewrite the Report, an unwanted expenditure of time and effort; moreover, if the expert is questioned under oath about “authorship,” the answer might cast the expert as a hand puppet whose supposed opinions are those of, and controlled by, the client-attorney as the puppeteer.

Regardless of how well a Report is (or isn’t) written, the client-attorney should not be blindsided by the opinions, because they should have been disclosed during prior discussions. An expert’s opinions should be independently derived and honestly held, but there’s no ethical requirement that those opinions be favorable to the client-attorney.

Faced with previously-disclosed unfavorable opinions, rather than commission an Expert Report, the client-attorney can evaluate options, for example, receptiveness to settlement. When it’s known that the opinions are favorable, a good policy is for the initial submission to be titled, Preliminary Report, a distinction to be removed after review and revisions. Added insurance is accorded if the Preliminary Report is read over the phone to the client-attorney before submission.

An Expert Report does not have an expiration date. It forever lurks somewhere, and the expert never knows when it might surface. The expert should bear that in mind with every syllable.

Not every expert is an excellent writer; however, since Report writing is integral to being an expert, a reasonable level of competency should be mandatory. An expert who doesn’t measure up in that regard lacks a key component in the delivery of services.

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