Being An Expert Witness (Toys & Board Games)

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BEING AN EXPERT WITNESS (TOYS & BOARD GAMES)

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Legal cases are usually stressful and antagonistic. These are not conditions we would normally typicall seek out! Most legal disputes are resolved, one way or another well in advance of going to court. Normally commercial concerns make both sides come to the negotiating table to find agreed resolution in advance of forking out $£€ hundreds of thousands to lawyers.

Yet I have had some very interesting experience of being involved in legal cases which actually did go to court. Clearly I’m not going to comment on the matters concerned in the cases themselves, but I can describe some of what it is like to be an toy expert witness or a board games expert witness in such a case.

The process of being an expert is mostly focused on two elements:

1. Researching and writing a statement

2. (Potentially) testifying on the stand.

The first part of the process is an almost academic process of briefing, desk research and document reading, leading towards the detailed expression of opinion on whatever the topic at hand is. The opinion tends to be detailed because it needs to be robust enough to stand up to rigorous scrutiny and cross examination from both sides of the dispute. This is far from easy – interpretation can swing from one side of a matter to the other dependent on various factors. Typically available evidence is flawed/has shortcomings in some way, so a toy expert witness or board game expert witness can only hope to reach the least flawed, least imperfect conclusion available versus the perfect representation. Typically writing such a statement can take 1-2 months in total, followed by some back and forth with the lawyers instructing the toy expert witness.

The second part of the process is arguably far more stressful, as being cross examined by highly competent, highly experienced (and highly paid!) expert lawyers is not easy, especially when they clearly understand the law better than the toy expert witness. In circumstances where the evidence available is limited or very imperfect, the challenge for the expert witness is greater, as the more subjective a matter or an opinion is, the more it relies on opinion and less on proven hard data, the more ‘holes’ in the argument there are likely to be for the expert crosss examiner to utilise. Moreover, other evidence presented in court may change the facts available to the court/those involved in the case, and render an opinion or extensive statement less compelling and ultimately less persuasive.

Having been an expert witness, I found the experience to be very intellectually challenging (mostly in a good way), but also very stressful – to insert oneself into ardent conflict is not likely to be a particularly comfortable place to go, however, the intellectual and professional development it offers can be rewarding nevertheless.

by Steve Reece, CEO of Kids Brand Insight www.KidsBrandInsight.com,  a leading international Toy Expert Consultancy which helps people & companies get ahead in the toy industry, find the right toy & game factories and to consumer research test their products with kids and parents.

 

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