IMS Insights Episode 52: Expert Reports, Testimony Strategy, & Apparel Industry Disputes

IMS Elite Expert Gabriele Goldaper discusses juror engagement, expert witness reports and visual aids, preparing for testimony and cross examination, and common apparel industry disputes.  (Part 2 of 3)

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IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 45,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at imslegal.com.

Transcript

Hello, and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg.

Today, we’re speaking with Gabriele Goldaper about jury engagement, expert reports, cross-examination, and common industry disputes.

Gabriele Goldaper is a product authentication expert with more than 45 years of experience as a fashion industry expert and academic in luxury and budget markets. She has consulted on branding, marketing, and licensing strategies for numerous companies and teaches apparel management at the Fashion Institute of Design and Merchandising. 

Adam Bloomberg:

You've been at this a long time. How do you know if you're truly engaging with the jury in the courtroom? Can you feel that in the moment? And do you maybe change a little bit of your strategy when you're there on the witness stand testifying?

Gabriele Goldaper:

I've learned to read body language about when they get it, or they don't get it. You can see on their face; they squint a little bit, they didn't get it. And so I immediately go down and try again on a lower level to get there. I never want to talk down to a jury, but there are times, maybe because this whole thing is in my blood. I mean, I live the fashion industry, and maybe I went a little bit into too much detail, or maybe they just didn't get it. I can tell from their faces, and their body language, and I can tell when they have that “aha” moment, and that's very gratifying. 

Adam Bloomberg:

So I'm curious to know, you said you have a very small amount of cases that actually go to trial, and that's not surprising. We all know that a lot of cases settle. When you're in those teaching moments, can you talk a little bit about any sorts of visual aids you've used along the way when explaining complicated concepts or maybe some of the language and the terms that you've talked about?

Gabriele Goldaper:

Okay, I'd be happy to do that. Now let's go back a minute to that expert report. In that expert report, I must divulge all my opinions, and I must divulge all of my research because I can't just say it's my opinion that I have to support that with underlying documents. Now those documents, I always use a lot of exhibits. So if I'm doing a copyright case that has a print on fabric that somebody else is being allegedly to have infringed upon, then I will make exhibits for that report to show whether they did or didn't, okay. Now those exhibits go with me to trial so that not just the lawyers could see it; they use that document to depose me. But now those exhibits, I will enlarge them and post them up for the jury to see it. That's very, very effective for a jury.

Gabriele Goldaper:

If I put up a visual exhibit, then I can use words to address that exhibit. So I make a lot of exhibits for that reason.

Adam Bloomberg:

Yeah. Do you ever have any cases, I have daughters, so I keep talking about the purses examples, but do you ever have cases where you bring in a physical object? And I'm curious to know what's your perception of, you've got electronic exhibits that you're showing on a screen, but you also occasionally might have something you show in your hand or hand to the jury. Does that ever come up in your cases?

Gabriele Goldaper:

Well, when we go to trial, the expert and the attorney, the litigator attorney, we work closely together. In other words, I bring to trial those components that the attorney feels would be most beneficial. So if I'm doing a handbag case and like Gucci and Guess sued each other, and the handbags were involved, the same thing with Coach. I've done all those handbags. If they want me to bring the original and the alleged one that is threatening to be a conflict, if they ask that, then I bring the actual items. But I usually just show large visual exhibits on a screen. They're just as effective, I think, as bringing the live item.

Adam Bloomberg:

Yeah, okay. So a little while you talked about, I can't remember, I think it was a case with Guess, and you said the expert report was something like 60 pages long.

Gabriele Goldaper:

Yeah.

Adam Bloomberg:

I'm curious to know, how do you keep track of that? So you've created this document, this report, you've been deposed about it. What is your strategy for making sure you know every bit of that when you go to trial, and you know you're going to be crossed on that report. Talk a little bit about that strategy.

Gabriele Goldaper:

I'll tell you a giveaway. When you're sitting on the witness stand, there's a book on the ledge there, and that book has your report. So at any time that I want to, I'm allowed to go to that book and look at my report, and I can say, well, if you recall, when the attorney is talking to me, on page 17, I went into detail extensively about this, this and that. So because they use my deposition as the source for questioning me, I also am allowed as well to use my own deposition. So they do allow you a copy. It's sitting there. So I'm allowed to refer to it. And writing an expert report, I write, and then I edit, and then I write, and I edit. And I mean, it takes a long time. So by the time I finish, I probably know that report inside and out. And when I said 60 pages, remember, in my report, I also have a lot of visuals in my report, partly because I want to use them if I'm going to trial, too, then I'm allowed to show them, you see? 

Adam Bloomberg:

Sure.

Gabriele Goldaper:

I can't bring anything that I haven't referred to in my depo.

Adam Bloomberg:

Yeah, but are you reading up and catching up on it? If you haven't looked at it in two years, that maybe the week before trial, are you going back to look at it at all?

Gabriele Goldaper:

No, the life of an expert witness before it goes to trial is very busy. Why? Because there's what's called depo prep or trial prep. So you meet with the attorneys, if they want to, and most often, they do. And they have a session where they do trial preparation and the same thing with the deposition. They do that ahead of time, the day before or two days before. Now that doesn't end there. I still do my own prep. That means I review everything. I review everything in my deposition, I review all my exhibits, I review anything and everything, any opinions that I've given or anything that I feel in my gut they're going to ask me about. I do that on my own. 

Adam Bloomberg:

Yeah. So we're still talking about being on the stand, and I'm curious to know, without being led by an attorney, how important is it for an attorney to guide their expert witnesses?

Gabriele Goldaper:

My own attorney, by asking the right question, lays the foundation to our case. So the attorney, that's his job, a litigator, he or she. And then sometimes, they, even during prep, they tell me, I'm going to ask you a lot about this, I'm going to ask you a lot about that. And that's invaluable to me. And that's why I sit on the witness stand and I'm not nervous. I mean, I'm not bragging, but the reason I'm not nervous is because I did my homework, and I know what I'm talking about. And my attorneys have also prepped me. So that helps a lot. 

Adam Bloomberg:

So that's direct. Now let's switch over to cross. What is the strategy when it comes to cross examination; how you prepare for that?

Gabriele Goldaper:

I learned way back, like I said, I've been doing this for 26 years. You answer yes, no, or I don't recall. If it's a case of where they ask you a direct question, don't give any more details than you're asked. Just say, yes, that's correct, or no, that's not correct, or I don't remember. I prepare with the opposing with my own attorney. My first question when it goes to trial of my own attorney is, okay, where am I vulnerable? Where are they going to attack me? And they usually will clue me in. Now, if I was grilling you, this is where I would go. So I'm okay with that. And they're helping me, and they're prepping me, and they're showing me where I'm vulnerable. I do the same thing before a deposition. I say, okay, where am I vulnerable? I mean, I really know this stuff. Now where are they going to get me? And if there is an area where they think, they will tell me. Good attorneys work with their experts, and it pays off for both the expert and the attorney.

Adam Bloomberg:

Okay. So let's switch gears a little bit. Let's talk about the industry and the types of cases. So what are some common legal disputes that develop in the industry, and maybe what sort of cases result from those disputes?

Gabriele Goldaper:

Well, there are lots, but I'll give you a few. There's trademark infringement. Your trademark is your brand identifier, so you don't want anybody else to use it. And then there's copyright infringement, which is intellectual; you own what you created. But in addition to the intellectual property cases, I've done a lot of cases that relate to issues of quality. You have your goods made in China, and they come here, and there's a big problem with quality. It's a lawsuit. There's a lot of cases have to do with licensing. I let you use my license, but you destroyed my license because you sold it at a level that I don't want my brand exposed. I'm a better brand, and you sold it to Costco.

So there's a lawsuit in licensing. Then there is, besides quality control, I've done a lot of cases, not so much now currently, but in the past where employees sue, it's usually class action, their employer, what do they sue for? The employer says you must wear either certain colors or you must wear my clothes, whatever I'm selling in the store. And you must wear those clothes in excellent condition. That was the case with Tommy Bahama, who the employees had to wear some of the silk tops. And silk is very hard unless you dry clean it. It's hard to get it to look like it was when it was new.

Gabriele Goldaper:

I've done several cases that have to do with product development processes, okay. I had a wonderful case where a contractor developed the jeans to fit perfectly for the particular label. The contractor didn't charge for those, they're called patterns. You need to make a set of patterns, you draw them by hand, or you can do them on the computer. And that's the outline of how the garment eventually is going to fit. Because you use those pieces, you put them together, and the garment will fit. Now, this particular brand had tried everything. They tried hiring their own people, they tried using freelancers, and then this contractor said, "Don't worry, I know how to do it and if I do it and you are satisfied, then I want all your production. I won't charge you for the patterns." Which is a very expensive proposition. There's a lawsuit. Why? Because after seven years of working with this contractor who made the jeans fit right, and thousands of them were sold, I mean, hundreds of thousands, the brand said, "You know what? I'm going to go to China; it's cheaper."

And then the contractor said, "That's not a problem." The brand said, "I'd like to get my patterns." Contractor said, "You can't get those patterns unless you pay me." "Why?" "They're my intellectual property, I own the rights to those patterns. I created them, and I never transferred ownership. I did all your production, but I never gave you ownership." That was a big case. And, by the way, the contractor won. That went to trial, I sat on the witness stand for about two, three hours explaining what patterns are and how this whole process and patterns are part of the development of a product, how to get it to fit right.

Adam Bloomberg:

So you made me think of patterns, and I don't know why, but Burberry came to mind. It's a very specific look. So let's talk. I want you to give us another hypothetical. Let's say a designer at Burberry comes up with an amazing idea for some new product, could be a shirt, tie, anything. How does the process of manufacturing that go from coming up with the idea to selling it in stores?

Gabriele Goldaper:

Okay, well, the product developer comes up with the idea and generally having owned my own company, I know how we did it. And that's how most, I know from my consulting practice, too. After the product developer comes up with the idea, they present it to a committee, which is usually your management, your merchandiser, your production people, to make sure that the fabric is right, production can work with that fabric, that the pricing, the estimated cost to make it is right, that the product potential price is within the target market of where you're selling. And once all of that is approved, yes, it's priced right. The styling is right for my target customer. The product development people have selected the fabric and have selected this styling.

Now production goes in, and they will try and see, make samples for salesmen. The salesmen use as samples to show buyers, buyers place orders, and the orders are then filled through the production department, who usually outsources the production, the cut and sew. And after that's done, it's shipped to the store with all the requirements that the buyer put on the purchase order. That process, when I first started and I first owned my own company, used to take anywhere from three to six months. Now you can do it in two weeks.

Adam Bloomberg:

So based on that scenario that you just gave, the Burberry product going from conception of the idea to the store, why don't you give us an example of an intellectual property dispute that might come up in that sort of scenario?

Gabriele Goldaper:

What's very common in product development in this discussion that we just had is the designer wants to use a print, a fabric with a print on it, okay? Now, whoever is the originator of that print, if they applied for copyrights, meaning they own the right to that particular print, that designer has to be sure that she is released and nobody can come back and say, hey, you are using my print. I own it, so you are infringing on my private ownership. And there are a lot of copyright cases, an awful lot in that particular area. Now even Burberry is known for a very special striping kind of a print that they use. Have you ever seen the inside lining of a Burberry raincoat?

Okay, well, they own the rights to that. It's like their trademark, but it's also probably copyrighted. So anybody who wants to use something like that better make sure that they're not using exactly what Burberry is using because Burberry owns that through a copyright registration in Washington, D.C. We have a lot of copyrights about prints, and I've probably done 50 or more cases of that where during product development you are using a Navajo print. I did that case where the Navajo sued manufacturers for that Navajo-looking print. They said, "We own the rights to that. You are infringing on our intellectual property, and either you cease and desist and stop using that particular print, or you can fight it by saying it's not the same print. There's no visible similarity, if you can prove that." When I do consulting with clients, and I see that they're using certain prints, I tell them sometimes it's better.

I'll give you an example. I have a client who makes dresses, and she had a dress on her line that looked just like that Marilyn Monroe dress that went up in the air when the subway air blew on it. And she called that dress the Marilyn Monroe dress. And I said to her, you will get a lawsuit because the Maryland Monroe estate owns the right to that look. I mean, that name of that dress, the Marilyn Monroe dress. I recommend you make the dress, but give it another name, anything else. So that would be a perfect example, you see. And she did because it's not worth fighting it, fighting a copyright case or a trademark case or a licensing case; very, very expensive. And that's very common during the product development cycle when they're selecting their prints.

Thank you to Gabriele Goldaper for speaking with us today, and a special thanks to our listeners. 

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