My first expert witness case involved a man who was injured using a chinup bar designed to fit within a door frame. The bar has rubber suction cups at each end, and its length is adjusted by twisting its two sections together or apart for a telescoping effect. On vacation in Europe, the man placed the bar within the door frame of his hotel room, twisted it out enough to get a tight fit, and began to do chin-ups. In order to do his chin-ups through a full range of motion while hanging above the floor, he had to bend his legs back at the knees. As he did his chin-ups, the bar slipped, his knees were first to hit the marble floor, and both kneecaps were shattered, one being dislodged about 3 inches into his thigh. He sued (Cala v. Best Products, 1985). The defense responded that the rubber ends were not suction cups, that metal brackets had been packaged with the bar, that proper use of the bar required the brackets to be screwed into the door frame to support the bar, and, moreover, that the instructions stated this. The man claimed that after having purchased the device, he opened one end of its rectangular box, dumped out the bar, threw away the box with no brackets or instructions having come out of it, and used the bar unaware of the need for brackets.
One issue in the case, therefore, was that of who was at fault because the brackets were not used. The attorney for the plaintiff looked over the door-bar box (he had bought a new one to examine), and noticed the phrase, "Portable and Convenient for Pullups at Home or Office." He felt certain that the meaning of "Portable and Convenient" is contradicted if brackets have to be screwed out of one door frame and into another in order for the bar to be used in different locations (e.g., "at Home or Office"). Deciding that he had a good argument, and feeling that it would he even more persuasive if it were endorsed by a communication professor, he phoned his local university, got me by chance, and asked me to testify that if a product is described as "portable and convenient for use at home or office," then that means that it does not require the nuisance of frequently installing and removing brackets.
My answer disappointed him. Like any good semantics student, Iexplained that meanings are in people, not in words, that for every expert witness he found to agree with his meaning of "portable and convenient," the other side could find an expert witness to agree that screws and brackets are very portable, that using a screwdriver is not inconvenient, and that" ... at home or office" might indeed imply multiple locations, as he insisted, but that the other side could argue just as effectively that it implies a stationary location (e.g., "home or office" versus "home and office"). In short, I said that I could not under oath endorse a single exclusive meaning for the target phrase.
Fortunately, that did not terminate our discussion. Eventually we agreed that it would be wise to frame the question as one of whether the need for brackets had been communicated well or poorly-by the box as a whole, and/or by the instructions (even though the client said he never saw them). I agreed to examine the box and instructions, easily came to the opinion that the need for brackets was communicated very poorly, was retained as an expert witness, supported my opinion with an experiment comparing the original box with variations I hypothesized would communicate the brackets message more clearly (see Motley, Chapter 15, this volume), and went through the various remaining steps of an expert-witness assignment for the first time (e.g., Motley, Chapter 16, this volume).
I have chosen the door-bar example to introduce this chapter on litigation concerning semantics partly because it is chronologically where my experience began, but also because it demonstrates a principle that seems to apply to virtually all of the 30 or so semantics-related, or meaning- interpretation, cases in which I have been involved: Usually it is not productive to claim a specific meaning for a specific word or phrase in isolation. About the only time this is preferred is when asked for a lay "translation" of specific passages in legal or technical documents. Instead, it usually is more effective to identify one or more messages that one side claims to have been communicated (e.g., "This bar is to be used only with accompanying brackets for support"), and then ask whether that meaning was communicated relatively well or relatively poorly by the composite of verbal and nonverbal information to which a client was (or was supposed to have been) exposed. Usually, the opinion comes not from a direct translation of given phrases, but rather from interactions of messages, message placement, verbal and physical context, accompanying metamessages, and so forth (e.g., Foss & Hakes, 1978; Hayakawa, 1962, 1972; Nierenberg & Calero, 1981).
This chapter attempts especially to introduce semantics-based litigation consulting to readers who may wish to venture into this kind of work for themselves. But it hopes to also serve attorneys who may not be aware that some communication scholars will have expertise in this area.
For the most part, the chapter simply provides several examples of the kinds of meaning-related issues that can come up in court cases, along with descriptions of how they might be approached by an expert witness with a communication background. When possible, recurrent themes or principles are pointed out, but these are fairly rare, as virtually every case is different. The organization is according to the semantic issues involved.
WARNINGS AND DISCLAIMERS: WAS THE PLAINTIFF INFORMED?
Case 1: Door-Bar Gym
Let us simply continue with the door-bar case. One of the legal issues was whether the defendant should be liable for the injury because the plaintiff did not use the bar with the supporting brackets provided, and because-at least according to the defense-the need for the brackets was communicated to consumers. Among the expert witnesses on various issues was the communication professor mentioned above, me, who was asked for an opinion on the clarity with which the packaging and instructions communicated the need for supporting brackets. Inspections of the box and the instructions were performed.
The Box. The box was rectangular (- 22" X 2" X 2") with two opposite long sides containing the same information, the other two long sides blank, and the two ends blank. The information contained on the box is presented in Fig. 11.1. The reader is invited to examine the box via Fig. 11.1 to formulate an independent opinion before reading the opinion rendered and its rationale. Is the message about needing brackets communicated well? Why or why not?
The opinion rendered, of course, was that the need for brackets was communicated very poorly. Here are some of the reasons for that opinion:
- Most obviously, perhaps, brackets are not mentioned at all on the box. There is nothing saying, "Brackets enclosed," "Use only with enclosed brackets," "Screwdriver needed for installation," or anything of the sort.
- The photograph of the man doing chin-ups contains no brackets.
- The end panels did not say "open this end," or "open at other end." If opened at the end containing the brackets and instructions, they would have had to come out with the bar, precluding the possibility of their getting stuck in the box and the consumer never knowing they existed.
- "Instructions enclosed. Please read carefully." This is a weak admonition in any case, but especially for devices that are ostensibly intuitive in their operation (e.g., unscrew the two sections until a snug fit is made with the suction cups, and do chin-ups). And "please" suggests" ... but only if you want to" rather than " ... do it for your own good." Compare the original with a revision such as, "Important safety and mounting instructions enclosed. Read before using bar to avoid injury."
- "Capable of holding up to 200 pounds when properly secured to door frame" is irrelevant if the user is 200 pounds or less and believes (even if incorrectly) he or she knows how to "properly secure" the bar. Much better would be, " ... when secured to door frame with enclosed brackets," for example.
- "Portable and convenient for use at home or office" does not necessarily preclude the use of brackets, as the attorney had originally wanted to argue. But something like "Portable and convenient for use at home or office; brackets and screws included" or " ... mounting hardware included" would be more accurate about portability and more clear about brackets.
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