In this episode…

Staying engaged in your field through work or academia is important, according to our guest, Dr. John Stanton. He notes that when expert witness work is not your primary career, it is easier to say “no” to engagements you aren’t an excellent fit for, which is essential in maintaining credibility.

Check out the entire episode discussing not taking anything personally, reasonable fees, and the ramifications of being published.

Note: The transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. John Stanton, Professor of Food Marketing at St. Joseph University

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and I’m excited to welcome Doctor John Stanton to the show today. He is a professor of food marketing at Saint Joseph’s University and a sought-after expert witness in food marketing and product development, advertising, sales, and sales management. Professor Stanton is in the halls of fame of the European Retail Association and Private Label Manufacturers. He’s a frequent conference speaker and has a Ph.D. in Quantitative Methods and Marketing from Saint Joseph’s University. Dr. Stanton, thank you for joining me here at the Round Table.

Dr. John Stanton: My pleasure to be here.

Noah Bolmer: Let’s jump into it. You’ve been in food marketing since the early 1970s. How did you first get into expert witnessing?

Dr. John Stanton: I have been in food marketing, as you said, having consulted with Campbell Soup for quite a few years, and we got a call from some lawyers representing the State of Pennsylvania. My colleague and I had no idea what it meant to be an expert witness, but they said they would pay us, so we [thought] it was a good idea.

Noah Bolmer: Fair enough.

Dr. John Stanton: Since that time, I’ve learned quite a bit about being an expert witness. The first time I did it, though, I was overwhelmed by what the other side had, what they knew, and what was going on. It was an interesting learning experience for me.

Noah Bolmer: In those [types] of situations, do you think it is a failing [of] the attorneys not to prepare newer expert witnesses adequately? To what extent does the expert witness need to take it upon themselves to be ready, and how much is the engaging attorney’s responsibility?

Dr. John Stanton: The attorneys generally do a good job. Since I’ve done about 50 cases, they feel less obligation to spend time. In the beginning, they spend time on the basic things. Some of the subtleties are things that you can only learn through experience. A good example would be the recognition that opposing attorneys don’t hate you. Now, I feel that’s their job. My job is to answer the question and not get angry or upset. Just listen and answer the question. Understand that’s their job. I could tell the newer expert witnesses about that, but until you’re in that environment. It’s tough.

Noah Bolmer: Let’s talk about those situations a little. Does this typically occur in a Daubert hearing, depositions, or cross-examination? What are the conditions in which expert witnesses find themselves impeached vis-à-vis their expertise?

Dr. John Stanton:  I find the worst-case scenario is in the deposition itself. The attorney that you’re with can’t object. You have to answer all the questions, and when you go to trial, you can’t change any of these things from that deposition position. You have to be super careful there. I remember a case [where] I said, “The company should have”- and the attorney with all of their activity- “What do you mean?” and they read from the transcript of the deposition, and there I said, “Could have.” [The opposing attorney said,] “Which is it, Dr. Stanton? Is it should or could? Do you have any idea what it is?” [ineligible]. The traditional stuff, so you must be careful.

Noah Bolmer: I assume this also comes up in rebuttal reports from time to time. When you write an expert witness report, and they come back saying, “No, his expert witness report is wrong for these reasons.” Do they usually try to impeach your logic, or are they trying to impeach you as an expert?

Dr. John Stanton: I have found the logic because I think background is secure. It’s mostly the logic. Recently, I had a situation where I had to do some forecasting, and I thought I did a good job. In this case, the jury rejected that whole position. I came back and said, “How could they do that?” It made no sense. Once you get to the jury, you have no idea what will happen.

Noah Bolmer: How do you go about connecting with juries when you are in front of them? Do you have techniques that help you make a connection with them either through body language or perhaps something like visual aids?

Dr. John Stanton: Two things. I try to be an average Joe. I try not to appear like a highfalutin expert who’s coming in to set the situation straight. I try to use basic language and to just be one of the guys. I have a style and I’m probably giving this away, but I have a style with the opposing attorneys where I try and be a nice guy. I always say, “Sir.” I always say, “I’m sorry, Sir. Could you repeat that again?” I try to be as polite as I can be to the other attorney.

Noah Bolmer: Under heavy cross-examination, how do you go about maintaining that polite, stoic demeanor?

Dr. John Stanton: It’s my job. Before I face the guy, I literally say [to myself], “This guy doesn’t hate you. It’s his job to rip you to shreds, and your job is to continue smiling and answer his questions.” In my opinion, any expert that loses his temper probably shouldn’t be an expert. The job is to maintain- and I’ve lost my temper on it on a couple of occasions. I remember one time it involved international food marketing. The opposing attorney said, “Dr. Stanton, you’re not even in international marketing, are you?” I said, “Yes, I am. I’ve lived in four different countries. I’ve taught food marketing in these countries. I teach international marketing- food marketing.” He said, “Well, on the website you’re not listed as one of the people teaching international food marketing.” I said, “I don’t care what the school says. I mean, I don’t even know what they have to say.” He kept it up, and I raised my temper and said, “Look, I’m leaving here and going back to the university and teaching international food marketing tonight.” The attorney next to me patted me on the leg under the table like, take it easy. I don’t know what it was, but it bugged me that he kept on it after I thought I made it clear.

Noah Bolmer: It’s interesting. You bring up your experience in an international role. Have you worked as an expert witness in international venues as well?

Dr. John Stanton: Not in venues but in court cases in this country that involve the business in other countries. It’s funny this case that I just referred to involved Germany and their expert witness spoke fluent German. The attorney says to me in the way he always talked, “So, Doctor, you don’t speak German, do you?” I said, “I get along a little bit in German.” They said, “Can you tell me the word for apple pie?” I said, “Apple kugel.” He picked about the only word I know. If he had said any other word, I wouldn’t have known it, but I knew apple kugel. When he heard it, he immediately stopped asking that line of questioning.

Noah Bolmer: Do you find that when you’re working, like you said, not necessarily in an international venue, but on a case that involves international concerns, is there a significant amount of outside research that you have to do for that or any other cases where you’re handed your materials from the engaging attorney? If it doesn’t quite cover everything, do you find yourself needing to do a significant amount of supplementary research to do your report or a deposition?

Dr. John Stanton: That’s a good question for a newer person. I have found that I always have to do some additional research. The materials that your attorney gives you are in the best interest of your attorney. It’s good to make sure you know all the issues, not just the issues that they select. You also need to make sure that this is a topic that you can represent well for your client. If you’re uncomfortable with what they’re saying, don’t do it. Because it will come out in the deposition. They’ll nail you on it, and it’s best to forego that opportunity.

Noah Bolmer: That brings us to the vetting process. When you get a call that they need an expert witness, what is the calculus that goes on in determining whether or not you’re going to take the case? Obviously, the first among them will be, “Am I in fact, an expert in this area?” Beyond that, how do you decide whether or not you’re going to accept an engagement?

Dr. John Stanton: Do I believe this person has been harmed, or this company has been harmed by the behavior of the other company? That’s number one. Number two is, does it appear that I have the background to be able to opine on it?

Noah Bolmer: As an academic, do you feel that has helped prepare you for a lot of the expert witness work that you do? Not only the subject matter but the way you engage with people, juries, and judges. Do you find that it affects your temperament when you’re in court?

Dr. John Stanton: I think that anybody who has a job where they have to stand in front of a group of people talking, whether it’s lecturing students or doing some other type of work, it helps just being comfortable. In that regard, yeah, It helps quite a bit if you publish a fair amount, which I do. You have more experience in how to do the research to follow. I have access to a lot of material online from the university. The big thing is since this isn’t my primary source of income, I’m much more willing to be frank and honest with the client. If they decide they don’t want me to do it, or I don’t want to do it, it’s not a major financial stream, or loss, like, “How am I going to pay the rent this month?” It helps a lot in that regard, that it isn’t my primary source of income.

Noah Bolmer: For expert witnesses who aren’t necessarily in the career of their expertise. In other words, you’re a professor rather than working for an advertising agency. How can expert witnesses in those situations keep up to date on their own knowledge? There are a fair number of academics, what strategies can you employ to make sure that you are up to date and well versed in the most current goings on of your niche?

Dr. John Stanton: It’s one of the positives that I have with the clients. As a food marketer, I publish academic articles. Do you know what an academic article is? It’s an article that no one reads. But I’ve also written a number of books. I stay pertinent in the field of food marketing. I go to the National Grocers Association. I go to the Food Marketing Institute meetings, and I believe I stay reasonably pertinent to the food marketing field.

Noah Bolmer: As somebody who is well-published, do you have any concerns about changing your mind about something you wrote 30 years ago or something taken out of context? With such a large body of work, how do you maintain a library of knowledge in your head about everything that you’ve ever that you’ve ever said.

Dr. John Stanton: That’s a good question. There have been a couple of occasions. Generally speaking, I have a good recollection of what I thought at that time, and I probably haven’t changed my mind on many of those things. I would say there are times when I’d say, “What did I write about that?” I know the other side’s been fine, but to be honest with you, I’m clear on my beliefs about these various topics over time.

Noah Bolmer: As somebody who has been at this for quite a while, have you seen any significant changes in the field that is different from when you first got started in expert witnessing compared to now, for example, technology, maybe things like Zoom?

Dr. John Stanton: The main thing is being able to have documents delivered online. In the days of yore, I would get four or five boxes of materials to read delivered to my house. Now, it’s all delivered online. That’s a major thing for me. Another change is you always had to go someplace to be deposed, whereas now you can be deposed [online].

Noah Bolmer: Do you find it’s different in a fundamental way when you’re online rather than face to face? Do you have to consider your demeanor, what you’re wearing, or how good your webcam is?

Dr. John Stanton: It’s the opposite. I believe that’s part of what I’ve done well as an actor. I believe in a lot of things like that. I dress nicely. I don’t think that people get to see what I look like enough. I prefer to be there in person. e, I prefer to teach in person. That puts me in the minority already, but for me personally, I like to do it in person. I know it’s a big cost savings and I understand that, but I’m happy to do it any way they want.

Noah Bolmer: Do you have a story or two about any cases? Obviously, you don’t have to go into any specific details or cases that changed the way you go about expert witnessing fundamentally or reinforced a behavior or position that you take on expert witnessing?

Dr. John Stanton: There was a case involving two privately held companies where the presidents were just at each other. When I looked at the case I said to myself, “What are these guys arguing about? This should have been settled in a minute and a half.” One of the things, for example, was the other side claimed that our client had released proprietary information. We said, “But it was in a national advertisement. You can’t call something propriety that’s in an international ad.” So, there were a lot of these little things. I realized it wasn’t about the law.  These two guys didn’t like each other, and they were just- and I have so many cases like that. You have to realize that these people are fighting over now. In many of the cases, it was two millionaires fighting about $200. You just take that for what it is and try not to make judgments about whether it makes sense that they do these things. I’ve been asked to do a job and offer an opinion. In some cases, I make it clear it’s not that I would have a conflict but I might have known people, and the other companies, etc. I make it clear I’m offering an opinion on this point. I’m not making a judgment of whether you’re right or wrong in terms of a court case. The specific thing was a supermarket and had to do with a zoning case, and I was offering an opinion on whether I thought something was within the zoning rules or not within the zoning rules. I made it clear that I wasn’t making any judgment on how good or how bad either of the two supermarkets were. I will tell you one funny story.

Noah Bolmer: Go for it!

Dr. John Stanton: I was in a court case and the judge- I’m in the stands testifying, and the judge says, “Look, we’re going to finish this by 5:00, or I’ll finish it at 5:00 because I have to get a plane to Brazil. I have to get through Customs, etcetera. You figure out how to get me through Customs quicker and we can stay longer.” Well, I knew. I’m sitting. I didn’t know what to do and I looked over at the judge and said, “Your Honor, you can get what’s called the [inaudible]. It’s a person that does all of the- gets you through Customs and does everything for you.” He talked with me about that for a couple of minutes. I didn’t know whether I should do it or not, but he said, “Does anyone know?” I used to live in Brazil. After that, that guy protected me like- the other side would be doing this, and he said, “You’re not going to answer that question.” I told him how to get through Customs, and after that, he treated me like the golden boy.

Noah Bolmer: That’s great. Those are the little things that expert witnesses talk about when they talk about what they get out of being an expert witness. Along those lines, what do you find meaningful? What do you find important about being an expert witness?

Dr. John Stanton: First of all, I’m also a university professor, I bring real examples that I know take place without revealing anything I shouldn’t reveal. I teach a class in food marketing research, and I said to the class, “Not one example that we’re going to talk about this semester will be out of a book. Every example will be something that I personally worked on.” You do that to try and establish credibility with your students.

Noah Bolmer: I’m sure that it humanizes to talk about things that place outside of the classroom. I always liked professors who used personal stories as well. Back when I was in law school one hundred years ago along those lines, Speaking of relationships. What makes for a good expert-attorney relationship? What are the factors that lead to an engagement that’s not only productive but also leaves you feeling good and has the attorney calling you when they need another expert such as yourself?

Dr. John Stanton: Honesty. I feel like the opposing attorney has to be honest with the real situation. There is a tendency for attorneys to not reveal too much about what else they have going on in this case. The more honest they can be, the more I appreciate doing the work. On my part, I want to find the attorney receptive to what I’m saying and trust that I can be honest with them. One of the first questions I ask an attorney when we’re talking is, “Is our conversation protected?” In some states, it’s not protected. Everything that you produce and everything you talk about they can get. In other states, an expert is the equivalent to a client. I like to find that out because what I wouldn’t want to do is not be entirely honest with the courts. If I said, “Maybe you should have done this.” The other side says, “Did you ever tell them that wasn’t-” even though it was just the two of us in the conversation. I would be uncomfortable, not being totally above board with that. I’m careful when I find out it isn’t protected.

Noah Bolmer: That’s an interesting point. Do you feel that expert witnesses should take a proactive approach in finding out those small but important legal ramifications of what they say and do, or is it incumbent upon the expert witness to educate themselves on those things?

Dr. John Stanton: I’ve found that the attorneys are good at telling you the things that would affect you. They would say, “This is based on a case where the judge said you have to meet these five conditions.” They usually tell you that kind of stuff. What they don’t often do is give you the full picture of what it is that your case is about. They ask you to offer an opinion on this point but you don’t know how they intend to put that point in a bigger case.

Noah Bolmer: Dr. Stanton with a lot of cases moving towards settlement these days- I’ve had experts tell me more often than not, or the great majority, even sometimes, of their cases are moving to settlement. Does that change the way that you go about billing?

Dr. John Stanton: Between you and 250,000 people who listen to this– I hardly ever read a contract. My fees are well below the market by basically charging by the hour. They say, “We’re not going to court.” [I say], “Okay.” It’s the advantage of having another source of income. I just did a case where my fee was around $25,000 for the whole case. The opposing expert, and you know this for fact because you asked the other side how much it was– $500,000. And I thought, “Maybe I should raise my rates?” I’m probably not a good one to offer financial information because I don’t care. 

Noah Bolmer: Well, fair enough.

Dr. John Stanton: I want to get paid for an hour’s work when I put an hour in. I’m not saying I do this for free, but it’s just the way I was taught. My father always told me you do a day’s work for a day’s salary. He worked hard, and I’m comfortable with everything I’ve ever done with any of the clients. One time, a group asked me in the mid- and at the end of getting ready to go to trial. They said, “Can you do a taste test for us?” And I said, “We can’t do a taste test. We only have 2 weeks left, and now we have to have it.” I said, “Let me tell you what’s going to happen if we do a taste test in two weeks. There’s going to be something we overlook, something that the other side is going to be able to pick upon.” We understand that, but we go into that position, and the guy goes after my taste. There was something he picked apart and he wasn’t right about this. It had to do with the number of different types of people in the taste test. I said, “I didn’t want too many students. I didn’t- I followed all the basic rules.” My attorneys got back and said, “We’re not even going to go to court on this. We think you blew the thing.” And I didn’t blow it. But I said, “We’re going to find something, they’re going to attack. We had to be ready for that.” They didn’t pay me, and I said to myself, “You don’t sue lawyers.” They keep you tied up and they’re paying nothing, and we’re paying money. The second thing I was using it as a learning experience. I should not have done the case when I said, “You really can’t do a perfect case in two weeks.” Never do that. I’ll never do that. I’ll just tell them, “Find someone else.”

Noah Bolmer: A learning experience: every expert witness has had these sorts of negative experiences. Anyone who’s been doing it for a significant amount of time anyway. I find that most expert witnesses, as you say, take it on the chin and turn it into a learning experience. Our listeners can learn from your experience. Before we wrap up, do you have any advice for expert witnesses, and in particular newer expert witnesses?

 Dr. John Stanton: It’s what I said in the very beginning, which is you can’t take this stuff personally, I do know some people. I know one guy was an expert witness and he walked out of the deposition. He couldn’t take it. I mean, he just couldn’t take it. I know some people at the beginning, I think they’re 100 percent right. They can’t imagine that someone could ever have a different opinion. But I think the main thing that I had to struggle with in the beginning was understanding that these other attorneys don’t hate you. It’s their job. You have your job. They have their job. That’s what I think was the most important thing.

Noah Bolmer: Sage advice, Dr. Stanton, thank you for joining me here at the Round Table.

Dr. John Stanton: It’s my pleasure. 

Dr. John Stanton, Professor of Food Marketing at St. Joseph University

Dr. John Stanton is a Professor of Food Marketing at St. Joseph’s University and a sought-after expert witness in food marketing and product development, advertising, and sales. He is in the European Retail Association’s and Private Label Manufacturers’ halls of fame. Dr. Stanton is a frequent conference speaker. He has a Ph.D. in Quantitative Methods and Marketing from St. Joseph’s University.