In this episode…
Dr. Seggev discusses with host, Michelle Loux, that two of the current trends he is seeing is how inexpensive marketing research has become and the other is how consumer behavior and research has advanced over the decades. He shares his thoughts on how marketing surveys can go beyond the fundamentals in litigation, which currently focus on class actions and trademark infringement but he points out that future facts are just as important as past facts. He elaborates, “The impact of an action taken by a company today that is a fraudulent user may last over the next five, ten, or fifteen years. Would survey research determine what the impact would be?”
Note: Transcript has been lightly edited for clarity.
Host: Michelle Loux, Assistant Project Manager, Round Table Group
Guest: Dr. Eli Seggev, President, Seggev Consulting, Inc.
Michelle Loux: Hello, welcome, and thank you so much for joining me today, Dr. Seggev. Could you please share your background, expertise, and how you became an expert witness?
Dr. Eli Seggev: It is a long story. I hope you have the time to listen to all of it. Let me start. I grew up in Israel and went to university in Israel. I studied political science and sociology, intending to become a diplomat. As a junior, I decided I was not interested in being a diplomat. I focused more on the sociology part. One of the courses I took was a field sociology seminar where the whole class traveled to a remote location in the desert of Israel where new immigrants were arriving. The immigrants my team welcomed happened to be coming from the Atlas Mountains of Morocco, so they were unfamiliar with modern civilization. Our job was to study how they adapted to it, how quickly they adapted, their problems adapting, and so on. That is when I got hooked on consumer behavior because there are some funny stories about their adaptation. It convinced me that this is an interesting field. Everything I learned from political science and sociology would apply to it.
After receiving my bachelor of arts, I applied to a few universities in the United States for my master’s in business. I am proud to report that Harvard declined me, but the University of Michigan accepted me, which was good. Terrific actually. I went to Michigan, received my MBA, and concentrated on marketing and consumer behavior. The University of Michigan did not teach the topic of consumer behavior. It was part of the Marketing MBA program. I pursued it on my own, and I started looking at the literature. When I finished the MBA, I decided, why stop here?
I approached my statistics professor and told him what I wanted to do. I explained that I wanted to keep studying and do a doctorate combining marketing with quantitative methods. The professor said, “I can help you if you want my help.” I said, “Yeah, that is why I am here.” He immediately called his friend Bill Wasserman, the author of the book he used in his introductory statistics course. Professor Wasserman had been teaching at the University of Wisconsin the year before and had just moved to Syracuse. My professor told Professor Wasserman that he had this crazy student who wanted to come by and study quantitative methods with marketing, and they were just starting a Ph.D. Bill Wasserman said, “Yeah, send them over.” I completed all the applications, which was tedious, but you must do it. I should mention that I was married and had a one-year-old child by then. We all got in the car in the middle of winter and drove from Ann Arbor to Syracuse during a terrific snowstorm. When we got to Syracuse, six feet of snow was on the ground, which was not much fun. Certainly not for someone like me who is used to the beaches in Israel, but I got used to the large amounts of snow in Ann Arbor.
At Syracuse’s marketing department in those days, nobody was interested in consumer behavior. I was on my own. But it was an excellent statistics, quantitative methods, and operations research department. When writing a dissertation, I developed a new method for measuring Brand Loyalty, a hot topic in 1968. I wrote the dissertation and was not good with computers, but the Dean at Syracuse was forthcoming and gave me a grant of $500. I could use the money to hire a Computer Science student to do the computer work. In those days, the big IBM 360 with the cards was open to dissertations only after midnight. So, the poor guy was there at midnight to drop the cards off, and the result was that my dissertation received the American Marketing Association Doctoral Dissertation Award. It was groundbreaking if I say so myself. I did not want to be a full-time academic because academic research did not appeal to me as much as solving real problems. Syracuse asked me to stay another year because I was one of the more mature students. There was an executive MBA program where I was a teaching assistant throughout my Ph.D. program. I stayed there for another year and then moved to New York. That is how my career started.
Michelle Loux: How did that launch you into becoming an expert witness? Did the marketing brand [companies] come to you, or how did you land that role?
Dr. Eli Seggev: As I mentioned a moment ago, I was not interested in doing academic research where you are allowed and encouraged to go to the edge of the basics of knowledge. I was a full-time academic for my 24-year career. I taught in the afternoons and got a job with a reputable marketing research firm in New York City. I wanted to learn the trade and how to solve and be involved with actual companies and solve problems. That is the only way to do it. I stayed with that firm for three years and then resigned to learn more about how consumer behavior and advertising work together. I worked for an ad agency. I do not know if you are too young to remember the “Please, don’t squeeze the Charmin” commercials, but I see you nodding, so I guess you do. The former ad agency, Benton and Balls, a big agency at the time, developed that commercial. I was a research director there for a few years. Then, I thought, “I know enough about managing this business, so why not do it myself?”
I started a marketing research company. A couple of years later, an English company came to New York looking for a small marketing research firm. Somebody gave them my name, I do not know how, who, and why. They bought me out and they gave me a car, which in those days was nice. I did that for about five years, and it was going nowhere. They did not intend to establish a more significant presence in the United States. It was a valuable experience, and I had a chance to practice trade on their penny, which was good. I terminated my relationship with them and started a new company. In the meantime, I met a few people, and we started working together. There were people like me from different backgrounds, which was the good part. I started a second marketing research company and had that for seven or eight years. Then it attracted the Brits, and another big British company came over. Unknown to me, this company intended to be a global marketing research company. They were interested in my company because we developed some interesting computer simulations of consumer behavior and brand management. I sold out to them. At that point, I was floating with nothing to do.
A friend and faculty colleague at New York’s Pace University and Baruch College opened an office with his son, an attorney who did not want to practice law. He started consulting with attorneys on marketing issues for their clients and doing marketing research. He was a Professor of International Marketing and had no idea of consumer behavior. He called me, and that is how I got into doing litigation research. I worked closely with this guy for about three years, and his company was doing well. Unfortunately, he got cancer and died. He was a good friend and a good fellow. After I finished that, I started working with him on this. His son’s office grew, and they hired one or two people. Then for family reasons, we decided to move to Florida, where we are today.
Michelle Loux: That is nice weather.
Dr. Eli Seggev: That was in 2008. I started doing litigation survey research in 2003 or 2004, and then when we moved to Florida, I continued to do it on my own. I set up a company called Selective Consulting Inc. It was an administrative vehicle for litigation research, and I enjoyed it tremendously. When you present your research to the faculty, for instance, they are very polite and say, “Well, Dr., give us your thoughts” and then [they] drop a bomb that you did not consider. That is always helpful because you cannot think of everything. I like to contrast that with negation research. Every rebuttal of every report I ever wrote starts with Dr. Seggev’s research being fatally flawed. Then new things get listed, but that is just on the surface. The innards of it are that it is a different and combative world. You are on your toes, and that is something that I have always liked. I like to be challenged and work with intelligent people. Lawyers tend to be smart, so that is my litigation research story.
Michelle Loux: I am curious. Have you seen any trends? I am sure over the years, you have seen surveys adapt and change, and even the visual aids you might use in the courtroom have changed with the explosion of computers. Have you seen any trends that you could share where the surveys were simpler versus now when it is getting more complicated? What is your impression?
Dr. Eli Seggev: Thank you for asking. That is a good question. There are two things that I think litigators have to understand. First, it is easier to do research now because everything is online. I can work independently and one phone call handles marketing research data collection. In the old days, you had to put everything together yourself, and now, as I said, one phone call does it. Secondly, and important to clients, is that research is dirt cheap compared to how it used to be. The way it works now is that of the marketing research company and about five of them are the leaders in this field. The data companies are funded by large funds that invest ten, twenty, or thirty million dollars up fronts with the promise of having an open pocket that you can bring in much more.
These data companies create panels with millions and millions of consumers, and they are global. The big companies spend all this money upfront as an investment to collect data. They call and email people and ask them a couple of screening questions. They categorize people in terms of what products they use, their socioeconomic and demographic characteristics, and so on. When I need to do a study with 400 people who must possess specific qualities, they could go to their database and get a random sample of ten times the number of consumers I require. That becomes the basis for the research. The cost of doing that is minimal compared to what it was generations ago when you had to go and knock on doors. After a few years, the doors would not open because you were considered a criminal or threat. The phone did the rest.
Today there are significant changes and trends which, as we can see in litigation research, have opened it up and made it inexpensive. A litigator, even a single attorney’s office, can use survey data today and afford to use it. Previously, they complained it was too expensive, and their clients would not pay for it, which was understandable. It is a big change. The other difference is that the discipline of consumer behavior, researchers, and research has advanced. Now we have more advanced methodologies that can tackle all kinds of problems that ten years ago were difficult to solve. We are considered pioneers. If we touch those areas in this context, let me complain about something. Unfortunately, for someone like me, survey research in litigation is used only in these areas: It is limited to trademark infringement, intellectual property, and class action. A class action deals with false advertising or promises made by a market or a company, whether advertising, packaging, or any other communication. That is a pity. First, it is nice that it penetrated those areas; as a scientist, I am grateful for that, but I plead for using survey research beyond those two areas. If you are interested in the right place, I can go into some detail about that.
Michelle Loux: Yes.
Dr. Eli Seggev: In 92.5% of all cases I have seen, the complaint asks for injunctive relief, or in my terminology, an injunction says not only do I want to punish you, and you deserve to be punished for what you have done, but you have to promise that you will never do it again. There is a good business reason for that, which is that the actions taken by businesses have a long-term effect if you do not stop doing it tomorrow. It will hurt them when the judge tells them to sit in the corner for their actions.
There are two areas where survey research goes above and beyond. First the Lanham Act that regulates trademarks. The other area which has become accepted traditionally, is class action suits. One of the things I like about litigation is the people who make the decision, whether it is a jury, a judge alone, or the two combined, the legal profession refers to them as finders of fact. That is an excellent term to use. My contention is that there are past facts, but also future facts. The impact of an action taken by a company today that is a fraudulent user may last over the next five, ten, or fifteen years. Would survey research determine what the impact would be? I think it would behoove litigators to use the power of research we can provide today to strengthen their argument for requiring an injunction to give the finding of facts to the court. The other guy must stop doing what they have been doing because not only have they affected what has already happened, but it may also affect what will happen if they do not stop.
The impact is cumulative and continuous over time. For instance, if you make a terrible product or if two businesses terminate a contract and one regulates the supply of ingredients to the other, the result is the product must change. That will have an impact over time if they do not stop. The statistics we use strengthen my argument. We can decide the precision of a finding with as much as 95%, which is the norm, or 99% if the client is ready to pay a few pennies more, so the estimation of future facts is accurate. Is the recounting of past facts measured by counting?
Michelle Loux: It would be interesting to see if that takes place and keeps moving forward as the need grows. How about one last story about being an expert that maybe was a learning moment for you or something you did not recognize at the time as a teaching moment and then later applied yourself?
Dr. Eli Seggev: There is one very fundamental thing that I am sure many people in my capacity have gone through. I do not want to believe it is unique to me. Arguments in my educational and professional upbringing are proven quotes, established acts, and relationships. Let’s put it this way, in the beginning, I was surprised that that did not seem to matter in some cases. I understand the litigation process has three distinct aspects. One, what is the law? Two, what is the precedent in this district? Three, can I find something that is even marginal that can cast doubt on what the other party, the other attorney, is trying to prove? None of that had anything to do with the fact itself. That was a learning moment because I realized how stupid I was until I got it. It wasn’t easy to consider my presentations, but I learned how to do them. Writing a report covering the opposing attorneys’ various angles requires two things. One is understanding it, as I just said, but the other is that it requires cooperation between myself and the attorney with whom I am working. I must make them understand that I can do only a portion of the job. That still leaves him open to other parts. The reverse of that is what he does is the principal thing, and what I do can contribute to and strengthen the argument they are trying to make.
Michelle Loux: I appreciate your time and your stories today. I was going to say report writing plays a vital part in conveying that information so you can defend your position in the cross-examination. Are there any other statements about being an expert witness that suits you? Is there one that sticks out the most?
Dr. Eli Seggev: I like what I am doing. It gives me the freedom to not be in an office. On a personal level, until the pandemic, it allowed me to travel around the country. I have been all over the country just testifying and being deposed. It has been fun and interesting, allowing me to do what I like in an important environment.
Michelle Loux: Thank you. It challenges you because you continue to accept challenges.
Dr. Eli Seggev: That is the essence of it all. If you are in my business, you must constantly repeat yourself, which is not good.
Michelle Loux: Right. Thank you for your time and your insights. Have a good rest of your day.
Dr. Eli Seggev: Thank you for the opportunity. I enjoyed it.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Dr. Eli Seggev is the President of Seggev Consulting, Inc. and an intellectual property survey research expert. He studied political science and sociology in Israel and then pursued a doctorate in marketing and quantitative methods. He worked for an ad agency and a marketing research firm before starting Selective Consulting Inc. in 2003.
Our consumer behavior experts have worked with industry giants such as Procter & Gamble and Ketchum Communications, have conducted market research studies for various private and public sector companies, have provided expert testimony, and are prolific authors of scholarly articles, college textbooks, and trade books.
Intellectual property is a form of legal entitlement which allows its holder to control the use of certain intangible ideas and expressions. The term ‘intellectual property’ reflects the idea that, once established, such entitlements are generally treated by the courts as if they are tangible property. The most common forms of intellectual property include patents, copyrights, trademarks, and trade secrets.
Marketing is the process of teaching consumers why they should purchase your product or service instead of your competitors. It includes advertising, selling and delivering products to consumers and other businesses. Getting the attention of a target market, persuade consumers to purchase your product or service, and provide customers with a specific, low-risk action that is easy to accomplish are the three main purposes of marketing.
In 2016, an estimated 7 million trademark registration applications were filed globally, which was a 16.4 percent increase over 2015. Three times more applications were filed in 2016 than in 2001!
A trademark is a word, name, symbol, or design, or any combination that is used commercially to identify and differentiate goods from one company or seller from those of another manufacturer. Trademarks can be protected by filing a trademark registration application with the United States Patent and Trademark Office and paying a registration fee. The registering of a trademark provides a company with exclusive rights to their trademark and reinforces their legal position during litigation. Our trademark expert witnesses and consultants have a broad range of experience in areas such as trademark infringement, Lanham Act, trademark dilution, false statements, false advertising, marketing, brand confusion and damages, among many others. They include scholars from major universities and professionals who have worked in advertising for Ketchum Communications, Mattel, McDonald’s, and various Fortune 500 companies; practiced law with the Federal Trade Commission; and written a number of books and articles for academic journals.