It is almost impossible to litigate supply chain disputes without, sooner or later, dealing with Engineers as witnesses. Indeed, Engineer testimony is often at the heart of supply chain litigation since Engineers are the ones who understand how things are made and why things go wrong.
But Engineer-Lawyer relationships can be difficult. Engineers and Lawyers do not communicate or think the same way. We as lawyers are taught to think and talk in concepts like “reasonableness” and “proximate” and “material.” Engineers, by contrast, are taught to think and talk in concepts like “five.” “Five,” in fact is the favorite answer of Engineers to almost any question. “Five” actually is an intelligent answer to a myriad of problems that Lawyers do not have the technical background to understand.
Our guess is that by and large Lawyers and Engineers exist somewhere on opposite poles of the Myers-Briggs personality typology, if you believe in that sort of thing. Which Lawyers do. And Engineers absolutely do not. Engineers are fond of tuna fish sandwiches and pudding cups. Lawyers are fond of martinis and self-loathing.
Because of these differences, it can be difficult for Lawyers to get optimal deposition or trial testimony out of Engineers. First, Engineers find it difficult to attend fully to instructions given by Lawyers. This is probably because Lawyer instructions are rarely phrased in terms of “five.” Rather, they tend to be windbag-ey lectures about contract terms and legal concepts and other things that Engineers really aren’t interested in.
But this is not to say that Engineers do not need guidance before testifying. Like any other witness, they do. Engineers, being almost totally without guile themselves, may be lured into agreeing with opposing counsel’s leading questions. Engineers have a hard time believing that anyone would include that many specific details in a question unless those details were true.
Try as we might, we have never been able to convince an Engineer not to try to answer a question when he or she does not have true personal knowledge. Engineers like to be helpful. Also they abhor the wastefulness of unanswered questions. For this reason, you have to explain very carefully to Engineers all of the nuances of your case, what opposing counsel is likely to ask, and why opposing counsel will be asking these seemingly inane questions.
A Lawyer can buy a lot of street cred with an Engineer by explaining things that the Engineer actually does want to know. Like what exactly will happen at the deposition? Where will the Engineer sit? Where should the Engineer park? Will lunch be provided? How long will the deposition take? This last question in particular should be discussed with the Engineer, since the Engineer’s presumption will be that no deposition should ever take longer than 20 minutes. If the seven-hour rule isn’t fully explained in advance, you face near certain Engineer Meltdown.
When the circumstances that you describe to the Engineer materialize at the deposition, the Engineer will think you are a genius.
Another question that the Engineer likely will have is, what should I wear? Male Engineers own one suit. Giving testimony is a good time to wear it. You will also want to explain that it is important for the Engineer’s shirt to have long rather than short sleeves. We have seen this go wrong enough times to know it is an issue. Female Engineers also own one suit, and it will have pants. Female Engineers can be counted on to wear sensible shoes.
Although establishing good Lawyer-Engineer relationships may seem time consuming, it is worth the effort. Engineers present as highly credible, earnest witnesses – because that is precisely who they are. If they understand the need for it, they will prepare as endlessly as you need them to. Once you gain the Engineer’s trust, they will never fail you. You may even find that after the whole ordeal is over, you and the Engineer have become rather attached to each other.
Good luck.
