Ronald R. Butters
"Lawyers tend to be rather conservative in doing things the same way they have always done."
Ron Butters is Professor Emeritus of
English at Duke University. His main interests are in the
interpretation of trademarks, contracts, and statutes. He is
President of the International Association of Forensic Linguists.
During a visit to CFL to teach in our Summer School, he talked to
Seemaab Naseem about his work as expert witness in US courts.
Initially what the attorneys would do was to phone up the English department and ask whether they had someone who is a specialist in English linguistics: sometimes I was approached and asked to provide expert evidence. After I had done a couple of cases and as I built a reputation lawyers were more likely to call me. Also Roger Shuy did not particularly like doing trademark cases and so he started referring cases to me. Much of my work has been with law firms that I have worked with before in trademark cases. Occasionally a law firm will be engaged in litigation where they discover that the other side has called a linguistic expert and often they will have no idea what a linguistic expert does so they will research and see who else has done these things in order to get a rebuttal witness, so sometimes they have found me that way. I have set up a website with my details and what I do because these days attorneys go on the internet to find expert witnesses.
Can you tell us about your role as an expert witness in the US?
About 75 per cent of my work has been in trademark cases. People also come to me regarding a contract which is ambiguous, and very occasionally I may be approached regarding a product warning case. I have mainly testified in depositions rather than in court trials as many cases are solved before they go to court. There was a court case I was involved in where linguistic experts were called by both sides. The linguist from the other side was Roger Shuy, but in the end we never provided our evidence because the judge wanted to go to his son's soccer game!
Cross-examination can be a challenging experience. What have been your experiences of this?
My experience with cross-examination is that it is not traumatic at all. In some ways I find direct examination more difficult because in direct examination there is a certain amount of material that I want to get through to the jury and I do not want to leave anything out. In addition, I want to get it correct and across in a way that the jury will understand. So it always troubles me after giving the testimony when I realise that I have not said something that I wanted to say. I do not like the preparation stage where we have to do rehearsals of the testimony: I know what is going on is not for real, so it is really hard for me to conceptualise as there is some psychological barrier present when I am 'pretending' to be engaged in a very serious discussion and so my brain is constantly telling me "Oh they really know the answer to this question, and why are we bothering with this?", and then in court I worry that I will leave something out.
When you say you feel worried in case you miss something out, is that because of the way lawyers try to restrict what or how much you can say?
In direct examination I do not really find that to be a problem. Sometimes I think, "well, why don't they want me to say something about this?", but then my role in this is not where I am trying to simply teach them what I know about this particular area, but rather I am a particular piece of their larger courtroom strategy. So as long as I tell the truth, the whole truth, and nothing but the truth, it does not matter. I should not be following my own outline; I should be following the outline of the attorney because my role in this is just one piece of the larger puzzle. So that does not really bother me if it is my own attorney. If it is the other side's attorney, then they try to control the agenda, but by and large there is nothing preventing me from saying what I want to say unless the judge tells me otherwise. Often when you watch television showing trial testimonies you will see the cross-examining lawyer dominating the discourse and frequently saying "just answer the question", but that does not really happen often, and if it does, particularly if there is a jury present, then you just go ahead and say it anyway. I have never had a judge say "the jury will disregard that comment", so I can usually say whatever I want to say.
In the US, the expert witness is there to illuminate the issues as best they can for the benefit of the judge and jury, so an expert witness can say "this is not a case of a yes or no answer, I cannot give you a simple yes or no answer because it's more complex than that". So they usually do not try to constrain me with yes/no answers. But cross-examination in my experience has been rather gentle, probably because of the particular type of case or expertise that I am involved in. The lawyers have roles that they have to play too and they do not want to come off in front of the jury as looking disrespectful, especially as I have a grey beard and a long curriculum vitae, in which case I think the younger attorneys have a harder time in trying to challenge me in a harsh way as it would make them look disrespectful and silly.
The second thing, which Roger [Shuy] and a couple of lawyers have reminded me about is that as an expert I know a lot more about the subject than they do, and they know that, and if they are smart lawyers they will follow the rule "do not ask a question that you do not know the answer to", so they usually are quite careful and the cross-examination is more like damage control. Lawyers have this whole discovery procedure during depositions where they ask all types of questions. They can find out in those depositions how expert the expert really is, and I think I do a good job in convincing them that I know what I am talking about and that I am relatively concerned with what I say, I am not going out on any limbs, I am not going to say something that can endanger my professional reputation - and that I am telling the truth, the whole truth and nothing but the truth; so that gives them a sense that I am a hard witness, and from their perspective they think I am distinguished because I have published a lot of different things and gone to different countries to give lectures. That reminds me of a lawyer who asked me a question which I sort of answered and then I said "I'm not going to get into an argument with you regarding the meaning of words" and his response to that was "well, there's no way that I'm going to get into an argument with you either because your credentials are so distinguished." I thought that was smart answer on his part because it was a way of saying 'I'm being respectful but I'm also being sarcastic'.
Do you remember any particularly interesting cross-examination?
One of the silliest cross-examination questions I ever had was in a contract case where the attorney for some reason asked me, "Dr Butters, is it true that in the English language a preposition is something you are not suppose to end a sentence with?". I was quite confused about why he asked me this question and I finally just said, "Well you just did!". Everybody in the courtroom laughed, but I do not think he himself realised what he had done. After that he did not ask me many questions. So don't ask a question you do not know the answer to.
What has been your most favourite trademark case so far?
The cases I have talked a lot about in my writing are the ones I have liked a lot. The kettle potato chips case and a case where the term 'kiss' is applied to candy were enjoyable because of the historical research involved in the investigation. There was another interesting case where I was retained by the lawyers for the Korean appliances firm, LG, involving a slogan with the phrase 'whisper quiet', which is an embedded simile, from 'quiet as a whisper'. I did historical research on it and found the term arose in commerce, I think in response to marketing of products that were noisy e.g. the first use of it was in the 1920s for an automobile to imply that its engine was 'whisper quiet'. The Remington typewriter group then started using 'whisper quiet' to describe their quiet typewriters. Then in the 1930s refrigerators were advertised as whisper quiet and after the Second World War its use just expanded. One of the major appliance manufacturers in the US had been using the term 'whisper quiet' and sometimes put it on their appliances, and then LG started using it as well, so the American firm sued LG to try and stop them from using the term. That was the first case where I really seriously used the internet. The whole point of LG's case was that the term is almost generic and that it has so much second-party use that it would be preposterous for anyone to say that they own this phrase. I was pleased that LG eventually won the case.
What do you think the future holds for expert witnesses especially in relation to trademark cases?
Lawyers tend be rather conservative in doing things the same way they have always done. If lawyers think they can win a case anyway without involving a forensic expert then why would they waste money on a forensic expert? I think linguists have a lot to offer in trademark cases. Chris Heffer from Cardiff University not long ago testified in a trademark case and his work was very good. In the future I would love to see more expert witnesses working on trademarks. In the UK, as well as Canada, the US, and Australia.
And finally, what do you have planned for the future?
I have a lot of articles now about trademarks and I am thinking of writing a book. I think I have already written the book, it is now just a matter of bringing everything together. Roger Shuy has written a very good book on trademarks but I think it is now time for another book perhaps written by a different author, me, that looks at some issues that Roger did not look at. This will be my first forensic linguistics book. Another thing I am interested in are the criminal cases involving instant messaging, I have currently got three cases like that now and I would like to write a short book just on that topic alone.
I look forward to reading you book. Thank you very much for your time!
Thank you, I really enjoyed it.