AT SOME POINT DURING ITS EXISTENCE, your business will likely be a party to a legal disagreement in which technology – possibly even cleaning technology – is an issue. At least once in your career, you may need an expert witness (EW).

Some Examples

As a professional cleaning consultant, I have been involved in a variety of situations as a potential or actual EW. Some were about:

• -How a custom cleaning machine was represented in its purchase specifications.
• -The definition of a technical term that was a keyword in patent claims.
• -How waste from a solvent cleaning machine should have normally been disposed of 30 years ago.
• -How a commercial product which contained food materials should have been cleaned, and to what specifications.
• -Whether or not a cleaning procedure was compliant with an ASTM standard.
• -The normal cost of completing a cleaning operation.
• -The formulation of a cleaning product.
• -The technical meaning of a patent claim.

In each of these situations, I signed a non-disclosure agreement requiring me to remain silent about all details pertaining to the situation. That's normal for an EW.

It’s the Appearance
A courtroom scene in the 1982 movie, The Verdict (with Paul Newman), taught me much of what I needed to know about the craft, skill, and experience of being a professional expert witness. In that scene, a defense lawyer, played by James Mason, accuses a physician, who is testifying as an EW for the prosecution, of being willing to provide opinions suitable to any party willing to pay for them. The lawyer mercilessly impugns the physician's character, rendering his opinions, however valid, valueless in the case for the defense. The lesson for me was that in these situations, as in so many others, perception may well be reality, and appearance, unfortunately, may be all. In an EW situation, the EW can respond only to the questions asked. Scientific truth can be made irrelevant in a courtroom. Expert opinion based on legitimate and pertinent experience can be discounted by a judge or jury if the EW isn't perceived as credible – and, sadly, credibility may sometimes be based on little morethan a positive appearance.

Who Hires the EW?
Think how movies are made. As a manager of technology, you're the producer, responsible for the financial outcome. You hire the director (your attorney) responsible for the appearance. The director hires the EWs (the actors). Don't hire the EW yourself. You're a manager of technology, not a movie director. And don't let anyone assign the role of EW to your Chief Technology Officer (CTO); the opposing director (counsel) will contrive to make your CTO appear biased (naturally) and insular. If you happen to be your company's CTO, don'tallow yourself to be put in that role.

The Channel of Discovery
It is in the discovery process, where depositions are taken from EWs, that the director (your attorney) and the producer (you) first learn the actual strengths and pitfalls of your legal case. Don't let your EW make a judgment for you here. Actors don't advise producers about movie scripts. Do encourage your EW to distinguish scientific fact from informed speculation, and to propose alternate methods of presentation. It will be in this process that your director (your attorney) learns if they have cast the right actor (EW)for the role of producing the desired appearance.