Engaging with Environmental Expert, Mark Elmendorf

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This episode is brought to you by Roundtable Group, the experts on experts.
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We've been connecting attorneys with experts for over 30 years.
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Find out more at RoundtableGroup.com.
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Welcome to Engaging Experts.
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I'm your host, Noah Ballmer, and today I'm excited to welcome Mark Elmendorf to the show.
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Mr.
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Elmendorf is principal at Root Associates, an environmental consulting and management firm.
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He is an expert in regulatory analysis, risk management, and hazardous materials, and a whole lot more.
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Mr.
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Elmendorf is a sought-after public speaker and expert witness.
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Mr.
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Elmendorf, thank you so much for joining me here today on Engaging Experts.
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Well, thank you for having me.
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I'm excited.
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Let's jump into it.
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So you've been in environmental consulting for gosh, nearly 40 years, it looks like.
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Uh, how did you first become involved in expert witnessing?
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Uh, you know, I had been doing consulting for a while, and I was working with a couple of attorneys who had uh cases I was working on with them, doing like some expert reports.
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And two of their cases actually were going to go to trial.
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So they asked me to testify and spent a couple of weeks getting prepped, meeting with them, and testified.
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And you know, both cases uh turned out quite well for them.
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Uh was an insurance carrier involved, and they were very happy with the work.
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Um, and I just really enjoyed doing it.
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It was something different.
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You know, you really got to use your expertise and you know, the matter of that at the end.
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It was enjoyable working with the attorneys and seeing the strategy they were using to try to, you know, get their side of the story across uh as strongly as possible.
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You know, a little nervous the first time you actually go to court and you're up there and it's very formal.
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And when you're testifying, I've always found that part of it easy, you know, because I'm prepared.
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I know exactly what I'm gonna say, pretty much, you know, not exactly, but pretty close.
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Cross examination, that's the part where a little more stress, um, because you really don't know, you know, what they're gonna say.
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I was told by an old attorney early in the early in the game, yes or no is the best response for cross-examination questions.
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Don't don't offer anything, just yes or no, and stick with it.
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It's it's interesting.
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I've had so many experts come on that have been doing it for a very long time, but very rarely, if ever, have been in an actual court setting because so many of these go to uh settlement.
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So it's it's interesting that your very first shot, you were already right in there, right in court.
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I think in our field, and I know you do a lot of different areas, of course, you know, the extra witness uh realm, but in the environmental business, I think a very large percentage of the cases have insurance coverage.
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So you have an insurance carrier that's in there saying, you know, it's gonna cost us this much to go to trial.
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Let's let's start offering, you know, incremental amounts going up and up and see if we can settle this out and avoid going to trial.
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And that's why so many of the cases sell.
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Right, right, exactly.
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And that's true in a lot of different industries.
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Let's talk a little bit about initial phone calls.
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So you get a call out of the blue, somebody needs somebody with your uh particular brand of expertise.
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How do they vet you to make sure that you are the correct expert for the job?
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And how do you vet them to make sure that it's an engagement that you are the right person for and have time for?
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Well, usually, you know, they'll ask for a CD in an interview, and then they'll ask you to provide very specific experience examples.
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I just started a case out in California that involves uh gasoline exposure, and they wanted me to provide them with example cases and projects that dealt with very specifically tank systems, gasoline, beatx contamination, air exposure, that type of thing.
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So I wrote up about 10 different cases uh background information and sent it out to them with my CV.
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And then we had an interview that lasted probably about 45 minutes.
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Then they asked me, do you kind of go through some of the cases?
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I always ask a lot of questions because I want to make sure there's nothing, it's not going to be a big surprise once I say, Yeah, okay, I'm ready to go with this.
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Uh, so I want to know, you know, all the parties involved, whatever information I have to describe to me exactly what the case is about.
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How many people are involved, uh, how many plaintiffs involved, what are they claiming?
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Property damage, is it health damage, is it, contractor problems, whatever, you know, just so you really kind of understand.
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Um, we do a conflict check on all the parties right off the bat before we commit anything.
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Make sure, uh, and you'd be surprised, we're a decent-sized firm.
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Uh, we represent a lot of the bigger corporations out there.
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So there's probably 10, 20% of my cases I had to turn down because we have a conflict.
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Oh, no kidding, that happens a lot for you, huh?
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Yeah.
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And we have a bunch of nationwide contracts with some some of the bigger corporations.
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I mean, just to be on the safe side, if they're involved in any way.
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I hate to do it, but I usually turn it down.
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Sure.
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Once in a while I try to get around it one way or another.
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But I find you start to open up the door to problems.
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I say, ah, well, you know, we'll put up a firewall and we won't talk to people or whatever, you know.
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But you're still you know, you're still on the other side of that company and it could come back to bite you.
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And you know, the of course the attorney doesn't want a conflicted expert any more than you want to be part of a conflicted action because it can, you know, remove their best expert from the action.
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It could complicate cross because if they if they wanted to, they could twist that somehow that's your involvement with one of the plaintiffs.
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You wouldn't look good.
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Well, just if it was a jury trial.
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And sometimes there's multiple room people working on these projects, and we're all going to be on the same page with what we're gonna do.
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Absolutely.
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Well, let's talk a little bit about trial teams.
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So, in larger actions, a lot of the time, it's not just one expert witness and it's not just one attorney.
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There's a whole team of people playing together, sometimes apart.
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To what extent do you work with the entirety of the trial team?
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Do you work in any way, shape, or form with the other expert witnesses?
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Do you work with a multitude of attorneys, paralegals, assistants, and and what and so forth?
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Tell me a little bit about the makeup of the trial team.
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Most of the time, there's several attorneys involved.
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There will be.
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There'll be an associate attorney or paralegal, somebody else that's kind of the day-to-day providing documents, you know, getting questions.
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There have been times where I've interfaced with other experts.
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The focus of that has always been not necessarily exchanging documents, but having conversations to understand where each of us was going to make sure we weren't going to contradict each other.
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A common point that we were going to get to, make sure we're all on the same page, so it looks good.
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You know, you don't want one person saying this, another person saying that, uh, you know, five minutes later.
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Is that something that your attorney sets up or that you do okay?
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Yeah, the attorneys would handle getting that in place.
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And I assume that whenever you're talking to another expert, there's an attorney present.
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No, not always.
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Yeah, they're they're pretty open with that.
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When we do expert reports, which is uh really a big part of what what I do on those cases.
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I think following the legal credo, you know, they're not supposed to comment on your expert report, not supposed to give you guidance, we'll exchange ideas and stuff.
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You want everybody to be happy with the focus of what the arguments are going to be.
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Everybody's making those arguments in their documents.
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The attorneys are filing motions, you've got your reports.
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You might have rebuttal reports once the other side comes back and complains about your report, talks about how stupid you are, and you know how much of a moron you are, and you don't know what you're talking about.
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And it's good to share.
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Let me put it that way.
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You know, you've got an idea of what everybody's doing.
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Tell me a little bit about your report writing strategy.
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How do you go about starting a report?
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Do you like to use demonstratives?
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Do you like to use indexes?
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I have a re I have a real organized way that I do it.
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I'm very good at expert reports.
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I'm very I've always gotten very good uh reviews on my my expert reports.
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I start with an outline, and I know you know the front end of my report is gonna be background information, and that's easy.
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That's you know, that's that's that's good.
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And so what I do is I I start with it with a uh you know, I make an outline and I start by deciding what my opinion points are gonna be.
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So, you know, I might end up with five or six or seven or eight points that I'm gonna make.
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Opinion one, plaintiff uh failed to do A B and C.
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And then I go to the next one and I get that because I don't want to have duplicate arguments in the extra report.
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I want to separate the issues as much as possible into kind of you know a fine-tune argument.
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So each opinion is very unique and covers one important topic.
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If it's say I worked on a uh big PCB case a couple of years ago up in New England, and and I broke it down into like failure to review relevant information, uh misinterpretation of sampling results, I broke it down into topics, and that reads well because then it's okay.
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They're gonna have to come back and they're gonna have to address each of those points separately, not merging everything together and blending everything.
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It's very specific topics.
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And then each of those topics will have reference material, background information, maybe other documents that the plaintiff has provided or documents that we've found as an attachment, an analysis if necessary that we've done on something, because it's costing information.
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We'll do, you know, we'll do a cost analysis and put paste that summary right in there.
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So it's right up front and center.
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I did a fracking case that should have been$30,000,$40,000 claim, and it turned into a$3 million claim.
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And a lot of that argument was based on failure to operate their site properly.
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I went through every piece of equipment, every dike, every containment system, everything, every single individual item, and said, this is what the industry standards, the state regulations required, this was what they had, this is why it was inadequate, this is why it was inappropriate, and it went on, boom, boom, boom, boom, boom, boom, boom.
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You know, so anyway, if they found a strong argument for one of those items, it was 40 items.
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You know, like they're never gonna, you know, they're never gonna walk away from all of it to wrap it up after all the different opinions we did in an or I did an analysis that said, look, if they had been operating the site properly, this is what would have happened.
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Boom, boom, boom, you know, A, B, and C.
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The cleanup quest for that would have been again$40,000.
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And they home, that was an insurance coverage where they were trying to subrogate against other parties to recoup that$3 million.
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And they didn't have a good argument.
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It sounds like you write your reports in anticipation of their rebuttal.
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Oh, yeah.
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Oh, yeah, absolutely.
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Yeah, you have to do that.
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I mean, that's something different.
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I did a criminal case a few years back that I thought was very interesting.
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Um, two small business owners were being sued by the EPA uh and charged with criminal violations.
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I did a report, but that really wasn't the main focus.
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The main focus of that case was um being in the courtroom every day for four weeks and giving my team of attorneys as much advice as I could on how to cross-examine the EPA's witnesses.
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And that went really well because the EPA's witnesses were Cory, Daryl.
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One of their witnesses was so bad, the judge offered to call a mistrial because the witness was just that bad in contradicting himself and putting information on the table he shouldn't have been putting on the table.
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But that's another example, though, of how we can help.
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You know, they retained me.
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I would I went and I sat in the back of the courtroom every day.
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And at the end of the day, we could get together for a couple hours, review the testimony, and come up with a list of cross-examination questions for them to put out, you know, for them to go and attack the witness.
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But again, they're their witnesses were terrible.
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And it looked good for us because at the end of the day, they were found innocent of all charges.
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Uh it was great.
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What's your uh rebuttal strategy when you're writing a rebuttal report against somebody else?
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Do you find that the opposing reports are usually as well organized as your own?
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Too many of these people, and I would never say this to somebody's face.
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I find a lot of the expert witnesses put in way too much background information.
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That PCB case, the first rebuttal report I got back, yeah, it was probably 80, 90 pages.
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And I have to say, probably 75 of those pages were just background information.
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Studies, he quoted, QPA documents, he quoted, and just paraphrasing.
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It had nothing to do with the case.
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And he starts it out by on the first page, basically saying, Well, this guy's a moron, doesn't even know what he's talking about.
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But the fact, you know, stick with the facts.
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I would never issue a remote report and say, okay, this other this other expert's a moron, which we happens more than you think with these people.
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It diminishes your credibility right off the bat that you're not sticking to the case and the facts.
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If you have an argument to make that you're right and I'm wrong, make that argument and explain why.
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What are the facts?
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I said the needs do this under this regulation.
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Is that wrong?
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Well, if it is, explain why.
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Quote the regulation.
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Is it a definition misinterpretation?
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Is it something like put something on the table that makes sense?
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Not just I disagree with you.
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As somebody who's been doing this for a while, have you seen any significant changes in expert witnessing in general?
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Has technology changed?
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Has uh timing changed?
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I'm old, so we want to look around technology changing.
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I think it takes you back to fax machines, couriers, and you know, FedEx binding your own documents in the back room, you know, nine o'clock at night saying, you know, to make FedEx to before they close.
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Yeah, the young kids today have no idea what any of that's about.
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PDF and email something, you know, like, I don't know.
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It used to be.
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Run to FedEx by eight o'clock to make sure you got it, got the package out to get it out to, you know, the next state so the lawyer's happy.
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I tend to think over the last 10-15 years or so the insurance carriers have gotten much more aggressive with wanting to settle cases.
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And I don't know if that's really a cost function, policy function, whatever, but you know, the bigger carriers and we work for pretty much every insurance carrier out there, you know, they really just don't want to go to trial.
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And maybe because you know, there's been some unfortunate bad outcomes when they do go to trial.
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So they just decided that if we can avoid it, let's, you know, let's pay a few bucks.
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Does the move towards settlements affect you as an expert witness, your ability to work and make money?
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Because obviously it can potentially make more money uh than if it settles rather quickly.
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So, how has that affected your business?
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Yeah, I mean, we're we leave a lot of money on the table when these cases settle.
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Because you just get that phone call all of a sudden, but yeah, we settled and stopped working.
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Or so you might have another six months' worth of work on that case if it was going to trial.
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Do your contracts anticipate that at all with like non-refundable retainers, ways to make that up a little bit on the front end?
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I think I think uh everyone kind of does that differently.
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Again, I'm you know, I'm kind of old school, so I don't I don't even ask for a retainer most of the time.
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I probably should, but I don't.
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I I do a quick uh one, two-page retainer agreements.
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I do a flat hourly fee for everything.
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You know, some guys have all different rates for you know, expert reports, trial testimony, you know.
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I used to use this phrase for everything.
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Keep it simple.
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You know, expenses plus whatever, you know.
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Uh I think the attorneys appreciate that.
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It makes it simpler for them too.
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Sure.
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And then, you know, I'll do a you know, estimated not to exceed for the different phases of a case if they want it.
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Okay.
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The ones guys I work with a lot that don't even ask for that anymore.
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They just say, you know, get start reviewing stuff.
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Um, you know, and it could be it could be some effort sometimes.
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I mean, you know, they send you over call you know a hundred pages of documents.
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It takes me 10 minutes to go to that.
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They send you over 20,000 pages of documents.
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Although most lots of times, you know, 90% of that information is worthless, you still have to go through it.
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And it's costing information, and get and I can get one of our staff people to summarize it for me to save money.
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I'll do that.
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Sure.
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You know, if somebody, if somebody sends me again, you know, three million dollars worth of invoices, I'm not gonna sit there and you know, I don't psych that fast.
00:17:05.359 --> 00:17:11.279
Uh, you know, I'll get I'll get one of my staff people to sit and pull all that together in a nice organized fashion.
00:17:11.599 --> 00:17:14.079
So I can just look at that and understand, you know, what we have.
00:17:14.319 --> 00:17:22.960
Is the expectation from your engaging attorney that you will look over all materials that are sent, or is that more in case you need it, here it is?
00:17:23.279 --> 00:17:29.039
I think I think 95% of the time they expect you to look at what they sent you.
00:17:29.200 --> 00:17:36.960
You know, again, because you're they're they're relying on you to pull out if there's something important in those documents that they're not catching.
00:17:37.119 --> 00:17:44.720
And even though they might be an environmental attorney, you know, they may not have the expertise in that particular area.
00:17:45.519 --> 00:18:00.880
You know, again, whether it's tracking and, you know, well drilling, uh, you know, PCB management, air emissions, whatever, you know, like they're looking for you to say, oh, here's, you know, not the magic bullet document, but you know, these 10 documents are important.
00:18:01.119 --> 00:18:03.839
Like, make sure you, you know, make sure you understand these.
00:18:04.079 --> 00:18:13.759
Um, and usually that's what ends up happening is it's a large volume of the material is kind of worthless, but there'll be some good stuff in there that you can use if you're gonna do an expert report.
00:18:14.480 --> 00:18:23.839
As somebody who has spent a significant amount of time actually in courtrooms and underwent cross-examination, what is your your preparation strategy?
00:18:24.000 --> 00:18:29.039
You're gonna go into a potentially contentious situation, you're gonna undergo cross.
00:18:29.200 --> 00:18:32.160
How do you get ready the day before, the morning before?
00:18:32.960 --> 00:18:40.880
I tend to, you know, I'll review my report to make sure that I refresh my memory with what I said.
00:18:41.839 --> 00:18:44.079
They're certainly gonna ask you about that one way or another.
00:18:44.400 --> 00:18:44.799
Sure.
00:18:45.039 --> 00:18:50.400
And if there's any other experts or remote reports, I'll go through those again also.
00:18:51.519 --> 00:18:53.039
Just so I'm familiar with that.
00:18:53.119 --> 00:19:16.400
Because again, you know, I it's gonna they'll probably rely on that their own experts' report to try to throw something at you to say, well, you know, you said it's gonna be 20 bucks, and our guy said it's gonna be, you know, thousand dollars, and this is you know, you you disagree with this because they said this, whatever, you know, so kind of familiarize you with it.
00:19:16.480 --> 00:19:21.440
It doesn't jump you, you know, you're not you're not surprised all of a sudden, oh, why is he saying that?
00:19:21.519 --> 00:19:28.960
You know, uh you know, and in the back of your mind, you can kind of start to formulate what your response would be.
00:19:29.599 --> 00:19:38.720
You know, we say, Oh, you know, they failed to take this into account, or you know, they didn't look at this properly, it should have been this way, it should have been that way, you know, that type of thing.
00:19:38.880 --> 00:19:41.119
Or, you know, where you got your information from.
00:19:42.400 --> 00:19:46.960
We did, you know, like that that criminal case was was eShap related.
00:19:47.920 --> 00:20:00.000
And one of the charges was they drove a piece of uh mechanicalized equipment, a bobcat basically, on top of asbestos floor tile.
00:20:01.359 --> 00:20:02.559
We drove it back and forth.
00:20:02.720 --> 00:20:07.599
And EPA was charged with a criminal charge for doing that.
00:20:08.000 --> 00:20:14.799
And I knew I knew that wasn't right, and I I remembered I remembered it wasn't right, but I couldn't remember exactly why.
00:20:15.039 --> 00:20:16.319
I'll be honest.
00:20:16.720 --> 00:20:17.039
Sure.
00:20:17.200 --> 00:20:33.920
So we went back to the hotel that night and I did a little research on my computer and I found what I was looking for, and there was an EPA document that talks about what's allowed under the aspicious niche app during construction activities.
00:20:34.799 --> 00:20:51.039
And sure enough, on page like whatever, 16 or 17, there's an entire page that talks about how you're allowed to draw drive specifically, and it mentions you're allowed to drive bobcats on top of this tile, no problem, we don't care.
00:20:51.279 --> 00:20:56.559
So I was able to, well, it was great because I was able to give that to my attorneys.
00:20:57.359 --> 00:21:01.279
And you know, when they did the cross the next day, they introduced that as evidence.
00:21:01.519 --> 00:21:05.839
They put it up and they have these we have a criminal crowd, they have these giant screens everywhere.
00:21:06.079 --> 00:21:10.319
They put it up on one of the screens, and the guy was down the stand, could you read that for us?
00:21:11.200 --> 00:21:12.880
You know, and now what do you think about this?
00:21:12.960 --> 00:21:14.319
You know, like this, that kind of stuff.
00:21:14.400 --> 00:21:19.039
Like that's that's where we bring value, really bring value to the team.
00:21:19.279 --> 00:21:31.279
Well, speaking of interesting cases, do you have any other uh tent poll cases which either change something about the way that you go about expert witnessing fundamentally or reinforce something that you are already doing?
00:21:31.599 --> 00:21:51.039
You know, one of my earlier cases was an insurance case for a contractor was involved and he he was accused of contaminating this big mansion out on the end of Long Island, one of these big, you know, Wall Street guys, the$50 billion uh, you know, mansion.
00:21:51.279 --> 00:21:59.440
And I was able to figure out things that they had done previous to this contractor doing work on the house.
00:22:00.240 --> 00:22:04.880
That caused as much of a problem as anything else.
00:22:05.119 --> 00:22:08.799
And they were looking to, they were looking for millions of dollars.
00:22:09.039 --> 00:22:11.359
They wanted to basically cut this place out.
00:22:11.680 --> 00:22:23.279
And we put all these items on the table to basically say, you know, then they had them subpoena one of these other contractors for their files.
00:22:23.440 --> 00:22:27.279
They didn't, they didn't, they didn't put them on the stand, but we had their files.
00:22:27.920 --> 00:22:30.799
And they were able to question me to review those files.
00:22:30.960 --> 00:22:32.799
They introduced those files into evidence.
00:22:32.880 --> 00:22:42.799
And I was able to review those files was basically say, you know, a month before this guy did anything, you hired this team to come in.
00:22:42.960 --> 00:22:46.000
And if anybody contaminated anything, it was these guys.
00:22:46.240 --> 00:22:47.920
Because this is what they did.
00:22:48.400 --> 00:22:49.599
It was great.
00:22:57.839 --> 00:22:59.680
And they settled that night.
00:23:01.359 --> 00:23:04.799
And you know, and then the insurance carrier would have some kind of representative there.
00:23:04.880 --> 00:23:13.680
And a few days later he called me and said, Yeah, look, they they knew there's no way they were gonna get a favorable, you know, uh, after all this information we put on the table.
00:23:13.759 --> 00:23:14.319
So that was good.
00:23:14.400 --> 00:23:21.200
So that that kind of taught me, you know, don't just look at one angle of it.
00:23:22.000 --> 00:23:33.920
Like really dig, you know, like if you if you if you if you think there's any possibility that there's additional data you can look at or additional information that you need, dig for it.
00:23:34.160 --> 00:23:35.359
The answer might be no.
00:23:35.759 --> 00:23:41.599
You know, it might be a dead ending, not gonna do anything, but you know, there could be some good stuff there, you know.
00:23:41.680 --> 00:23:47.839
Um, and the benefit of the doubt, you know, I mean, you want to you want to make it so it's not a slam dunk, you know.
00:23:47.920 --> 00:23:53.920
So if you can put uh again, you can put that, you know, oh, maybe there might be an issue here, you know.
00:23:54.079 --> 00:24:07.200
Uh I think maybe the experts might not agree with you, but I think the attorneys, especially the attorneys that have a lot of trial experience, they know, you know, these cleaners guys know, ooh, they're gonna start bringing a lot of doubt here.
00:24:07.359 --> 00:24:09.759
You know, this is not gonna be an easy one to win.
00:24:09.920 --> 00:24:15.599
So there'll be more, they'll be more inclined to settle in a favorable fashion to your clients.
00:24:16.000 --> 00:24:19.920
You know, maybe you take a little less money, you know, make it a little more simple.
00:24:20.160 --> 00:24:24.319
Um, you know, again, no, each each case is different, obviously.
00:24:24.400 --> 00:24:31.200
You know, uh we do a lot of um, we've been doing a lot of cost recovery cases.
00:24:32.720 --> 00:24:39.519
Because obviously everybody wants money, so it's it's you know, they're they're attractive cases for the attorneys to take.
00:24:40.000 --> 00:24:48.079
Um, and under the regulations, there's there's multiple avenues to bring third-party cost recovery suits.
00:24:48.799 --> 00:24:54.960
Um, so you know, again, everybody wants money, you know, but uh they really do, you know.
00:24:55.039 --> 00:25:03.599
It's like the subrogation, the way subrogation works, you know, this person's not giving you enough money, and you're after that person, you know.
00:25:03.759 --> 00:25:08.799
Uh, you know, and it's not even that person, it's that person's insurance carrier.
00:25:09.039 --> 00:25:12.160
So it's an insurance carrier against insurance carrier.
00:25:12.799 --> 00:25:17.839
And they, you know, and they all have budgets, and they all, you know, like uh, I'm this high, I'm gonna go that high, whatever, you know.
00:25:18.079 --> 00:25:21.200
Do do you primarily represent uh defendants?
00:25:21.440 --> 00:25:22.960
Pretty much exclusively.
00:25:23.279 --> 00:25:26.799
Exclusively, almost is that ever a liability to no?
00:25:26.960 --> 00:25:44.000
I mean, look, you know, if you testify, usually the first hour is, you know, them chewing you up for your background, your education, your life, your mother, you know, uh uh, you know, the fact that you only represent defendants, you know, what you charge, you know.
00:25:44.079 --> 00:25:50.240
Um, but just as a and it's not even the policy, like Rude doesn't say, Oh, you can't represent plaintiffs, because we do at times, you know.
00:25:50.400 --> 00:25:54.880
The thing is, most plaintiffs don't want to pay to hire, you know, good experts.
00:25:55.119 --> 00:26:01.599
Um, and just my personal stance on this, you know, I hate working for homeowners and property owners.
00:26:01.759 --> 00:26:03.759
I would not want to make a living doing that.
00:26:03.839 --> 00:26:09.279
You know, people just don't, they just don't understand, I think, how this whole thing works.
00:26:09.440 --> 00:26:17.359
And, you know, I've had some really wacky plaintiffs come to us, wanting to hire us, and everything, I don't think so.
00:26:17.440 --> 00:26:19.519
You know, like I don't want to get involved in that, you know.
00:26:19.759 --> 00:26:22.880
I don't know what you're thinking here, but we had a guy.
00:26:23.039 --> 00:26:28.720
I mean, for example, you know, I did a I did a favor to an attorney that I knew.
00:26:28.960 --> 00:26:33.680
She'll know there's a fire in this guy's house that was mainly a smoke fire.
00:26:33.920 --> 00:26:40.319
Big place, hired a guy to come in and hand stein all the woodwork.
00:26:40.559 --> 00:26:45.039
Well, you put all his rags in a metal can at the end of the day and went home.
00:26:45.680 --> 00:26:50.240
Most people, a lot of people don't know, but when you do that, those rags will self-combust.
00:26:50.319 --> 00:26:51.759
Okay, so that's what happened.
00:26:51.920 --> 00:26:53.839
So the house is completely filled with smoke.
00:26:54.000 --> 00:26:55.359
So this guy sues.
00:26:56.799 --> 00:27:05.119
The insurance carrier went in, they offered 20 different things to clean the house, you know, restore it and get it back to where it needed to be.
00:27:05.359 --> 00:27:20.480
So this guy, this homeowner goes out and hires this indoor air expert from I think Oregon, who rang up like, you know,$60,000,$70,000 in the middle of writing this expert report.
00:27:21.039 --> 00:27:25.920
That was one of those reports where all it wants is photocopies of other documents.
00:27:26.640 --> 00:27:29.359
So I didn't want to pay him.
00:27:29.599 --> 00:27:33.920
But his his conclusion at the end of the report was basically he had to tear the house down.
00:27:34.799 --> 00:27:43.279
Because these these micro particles of soot got into everything in the house, and you're never gonna get them all out.
00:27:43.759 --> 00:27:46.079
So because of that, you gotta tear the house down.
00:27:48.319 --> 00:27:49.920
So they got they went to mediation.
00:27:50.240 --> 00:27:52.319
The guy you never get paid, he never showed up.
00:27:53.279 --> 00:27:57.359
You know, the guy's got nobody there to take his sign on stuff, you know.
00:27:57.440 --> 00:28:04.160
Uh, but just kind of showed me like, hmm, again, you know, not when I work on homeowners, you know, like and they and they get wacky.
00:28:04.319 --> 00:28:16.960
Some of the wackiest people, you know, uh I can tell you stories, I won't get into it, but I can tell you stories, you know, where even working for the for the defense, like the homeowners are just strange, you know.
00:28:17.039 --> 00:28:19.440
Uh it's not what I want to do for a living.
00:28:19.920 --> 00:28:20.240
Sure.
00:28:20.400 --> 00:28:22.880
Let's talk a little bit about class actions.
00:28:22.960 --> 00:28:26.559
I see that you have been involved in some class action cases.
00:28:26.720 --> 00:28:29.279
Yeah, how is that different for an expert witness?
00:28:29.359 --> 00:28:33.599
Does that change any fundamental part of the job or is it business as usual?
00:28:34.319 --> 00:28:41.440
I would say it's it's and from what we do in our expert area, it's pretty similar.
00:28:41.519 --> 00:28:42.799
It doesn't change a lot.
00:28:43.039 --> 00:28:49.119
You have to kind of be aware of the fact that you're gonna have different endpoints.
00:28:50.160 --> 00:29:00.640
So, you know, like I did a I did a school district related class action, and that's so there was you know multiple plaintiffs involved that they had signed up.
00:29:00.720 --> 00:29:11.839
I think it was like 15 or 16 different families, and you had to put the time in to really kind of try, at least try to understand, you know, with any differences between those parties.
00:29:13.519 --> 00:29:18.319
You know, they're all living in the same town, same kind of house.
00:29:18.559 --> 00:29:21.599
Or was it was there, you know, substantial differences?
00:29:21.680 --> 00:29:53.359
Uh and I'm not talking like background, you know, income, yeah, kind of stuff, but just when it's an exposure situation, you need to understand, you know, where these people are, what kind of housing they have, what kind of exposure scenarios they might have seen, you know, what are they claiming how they're how they got exposed, where they got exposed, and try to come up with similarities and differences, you know, because they're gonna be arguing, they're gonna try to argue it's a unified class.
00:29:53.519 --> 00:29:56.559
So there's gonna be some commonality among the party.
00:29:56.640 --> 00:29:57.119
Right.
00:29:57.440 --> 00:30:02.400
You know, um, and you know, if you can point out that that's not the case, it's good to know.
00:30:02.480 --> 00:30:03.519
It's good to have that information.
00:30:03.680 --> 00:30:10.319
Like now another weird case, you know, we were able to we were able to demand that they test the residences of all the parties.
00:30:10.480 --> 00:30:19.039
And I know it's class action is still giving unlimited number, you know, of plaintiffs, but they had maemed, you know, to get their get their class action uh certified.
00:30:19.279 --> 00:30:29.759
And the the levels of contamination in most of these residences was higher than the buildings and the exposure scenarios that they were putting in their case.
00:30:29.920 --> 00:30:32.160
So didn't go the case didn't go too far.
00:30:32.559 --> 00:30:35.119
Let's back up uh to a couple general questions.
00:30:35.279 --> 00:30:48.319
When you when you first get engaged, you sign the engagement letter, how do you start off on the right foot and maintain that momentum throughout the engagement, make sure that everything goes smoothly, that you're communicating with your attorney.
00:30:48.400 --> 00:30:55.119
What are the important aspects, the important factors in a good uh expert attorney uh relationship?
00:30:55.599 --> 00:30:59.920
I I keep a running inventory of everything we're doing.
00:31:00.079 --> 00:31:06.480
So when they send me documents, whatever it might be, you know, I'll start an index of those materials.
00:31:06.559 --> 00:31:10.319
So I can provide that to the attorneys to say, so far, this is what you provided me.
00:31:10.400 --> 00:31:23.279
If I'm looking for additional documents, the same thing, I'll have one list that I keep again running list of, you know, these are the things I'm looking for, you know, so I can update them and remind them, you know, don't forget I'm still looking for this and looking for that.
00:31:23.839 --> 00:31:29.759
So again, just to make sure we're all on the same page with you know what I think is important that we review.
00:31:30.000 --> 00:31:30.400
Sure.
00:31:30.559 --> 00:31:44.640
And if it's you know additional costing information, or you know, if one of the reports mentions a document that somebody might have looked at, or you know, they were they referenced something that I think would be good to have, you know, we'll call that out and put that on the table so everybody knows about it.
00:31:44.960 --> 00:31:48.240
Uh, you know, and I think that's that's a good way of doing it.
00:31:48.480 --> 00:31:51.519
And then I like to get deadlines in writing.
00:31:51.680 --> 00:31:58.160
So, you know, if they're saying, okay, you know, we're gonna need an expert report, I'll say, okay, I'll have it done by this day, I'll have the draft done by this date.
00:31:58.240 --> 00:32:00.400
You know, is that that meets your schedule?
00:32:00.559 --> 00:32:06.160
And if it is, uh, you know, email or a quick letter or whatever, you know, just showing how that, you know, formalized.
00:32:06.720 --> 00:32:09.119
That's what we're doing, so there's no surprises.
00:32:09.599 --> 00:32:09.759
Right.
00:32:10.000 --> 00:32:16.319
You know, and when somebody coming back and say, you know, you're leak with something, and I said, Well, I told you it was the 15th, it's only the 10th.
00:32:16.559 --> 00:32:17.759
Well, you know, you need a quicker?
00:32:17.920 --> 00:32:19.119
Let me see what I can do.
00:32:19.359 --> 00:32:21.599
You know, I don't know, I won't refuse to do it.
00:32:21.680 --> 00:32:25.759
I'll just say, you know, that's the only case I'm working on.
00:32:25.839 --> 00:32:26.880
I got a bunch of other stuff going on.
00:32:26.960 --> 00:32:28.640
I'll be more than happy to prioritize.
00:32:28.799 --> 00:32:30.240
It's important to you, you know.
00:32:30.400 --> 00:32:31.920
I'll work this weekend if I have to.
00:32:32.000 --> 00:32:33.359
I will get this done for you.
00:32:33.599 --> 00:32:40.880
You know, um, and most of the attorneys are pretty good, you know, they understand um with stuff.
00:32:40.960 --> 00:32:49.359
And I think and I think everybody appreciates being organized so they know, you know, what they have coming up.
00:32:50.000 --> 00:32:51.599
They're trying to find stuff.
00:32:52.400 --> 00:33:02.640
And it makes it easy for them too, because if you go to them and say, oh, okay, you know, please go to the plaintiff counsel and request these documents.
00:33:03.359 --> 00:33:06.880
I don't think it's easy for them because they just cut and paste and shoot email.
00:33:07.440 --> 00:33:11.039
You know, they don't have to go digging through everything trying to figure out what they're supposed to ask for.
00:33:11.519 --> 00:33:15.599
You know, um, so I think that helps them too on their on their own.
00:33:16.400 --> 00:33:27.440
Similarly, are there any red flags either during the initial conversation or during the engagement itself that really make you think, uh-oh, this maybe isn't headed in quite the right direction?
00:33:28.000 --> 00:33:32.000
You know, I've only I've only worked on one case where I wanted to get out of it.
00:33:32.079 --> 00:33:37.680
And I ended up having a long discussion with the attorney saying, you know, I just I really don't feel comfortable with this.
00:33:37.920 --> 00:33:41.519
And it was a landlord, pretty big property owner.
00:33:41.599 --> 00:33:46.720
And I got a ref through a reference, this attorney claw, but he wanted me to get involved.
00:33:47.759 --> 00:33:50.799
Usually, a lot of questions back and forth.
00:33:51.440 --> 00:34:02.559
Um, some tenants were suing for for habitability issues and exposure issues, and at first cut didn't seem that unreasonable.
00:34:02.720 --> 00:34:12.000
And then they sent me their first discovery, which included a whole bunch of photos and some videos from inside a couple of these buildings.
00:34:14.480 --> 00:34:25.760
I would assume, you know, it's uh and I just couldn't uh there's just no way I couldn't, you know, I could stand in front no matter how hard I thought.
00:34:27.280 --> 00:34:34.239
There was just no way I was gonna be able to testify that this was a reasonable situation.
00:34:34.559 --> 00:34:36.719
It was rare, you know.
00:34:37.199 --> 00:34:58.159
Um, so I said I'm not gonna charge you, but you know, my advice is settle this out as quick as you can, you know, uh, because uh I'd say that the stuff they send me, you put that in front of a jury, no one's not gonna no one would not convict this guy.
00:34:58.239 --> 00:34:58.960
It was that bad.
00:34:59.280 --> 00:35:05.360
Before we wrap up, do you have any last advice for expert witnesses or even attorneys working with experts?
00:35:06.000 --> 00:35:16.880
You know, just you know, again, I think, I think getting getting organized, you know, getting getting a good punch list together, get an index together, take the time to talk to your experts.
00:35:17.840 --> 00:35:20.639
You know, don't don't just say, yeah, I'm gonna do this.
00:35:20.719 --> 00:35:25.679
You know, like set an hour aside, go through the case in detail.
00:35:26.000 --> 00:35:33.119
Like, you know, we need to understand as much detailed information as possible so we can help you out.
00:35:33.280 --> 00:35:40.239
And for you know, for consultants that are a little newer to the game and they're trying to get into this thing, you know, don't be so nervous about it.
00:35:40.719 --> 00:35:48.400
You know, if you if you if you know your your your uh your your specialty, you know, go for it.
00:35:48.480 --> 00:35:55.119
You know, I mean just uh again, just get organized, make sure you're comfortable with the cases that you take.
00:35:56.079 --> 00:36:03.679
Um, you know, the better attorneys will help you out, they'll prep you, you know, they'll work with you to get you where you need to be.
00:36:03.840 --> 00:36:12.239
And you know, it's it's to their benefit that you know turn out to be a good expert witness for their case, but it does go to trial.
00:36:12.880 --> 00:36:14.719
Improve your writing skills.
00:36:16.719 --> 00:36:18.480
I can't stress that enough.
00:36:19.360 --> 00:36:22.880
You know, this new these new generations of kids that are coming up.
00:36:24.480 --> 00:36:25.920
Can't write a thank you note.
00:36:26.400 --> 00:36:28.320
You know, I mean, I don't know what they're teaching them.
00:36:29.519 --> 00:36:34.400
But you know, some of the stuff you read, you'd be like, How did you know, like, where did this come from?
00:36:34.559 --> 00:36:36.880
Like, you know, this is bad.
00:36:37.039 --> 00:36:42.000
You know, like you know, you might have an engineering degree, but you can't write a sentence.
00:36:43.039 --> 00:36:45.199
You just you just you're not gonna be an expert witness.
00:36:45.679 --> 00:36:47.599
You know, you're not gonna be able to put these reports together.
00:36:47.679 --> 00:36:49.119
You know, they have to read well.
00:36:49.519 --> 00:36:49.760
Right.
00:36:50.000 --> 00:36:52.559
Um you know, proof your work.
00:36:53.840 --> 00:37:01.360
You know, you do something, you put it together, set it aside for an hour, go back, go through every line.
00:37:01.760 --> 00:37:07.039
You know, you don't you do not want any errors in these documents.
00:37:07.280 --> 00:37:13.360
You know, every error, every mistake, every typo, it all makes your credibility re reduced.
00:37:13.519 --> 00:37:16.079
You know, they documents gotta be tight.
00:37:16.159 --> 00:37:17.840
You know, you gotta spend the time to go through.
00:37:18.159 --> 00:37:19.599
Get somebody else to look at them.
00:37:19.840 --> 00:37:21.920
You know, we have a technical editor in our firm.
00:37:22.079 --> 00:37:27.119
And lots of times when I'm done, done, done, I've been through it so much I can't go through it anymore.
00:37:27.280 --> 00:37:30.960
I'll send it to her, you know, and have her go through it.
00:37:31.280 --> 00:37:36.400
Make sure I'm not missing anything in my punctuation or you know, a comma, or you know, whatever, you know.
00:37:36.480 --> 00:37:38.639
Uh and I think it matters.
00:37:38.960 --> 00:37:41.920
Not all attorneys, but a lot of attorneys are very good writers.
00:37:42.159 --> 00:37:43.840
Appreciate well-written documents.
00:37:44.159 --> 00:37:45.440
Absolutely sage advice.
00:37:45.599 --> 00:37:45.840
Mr.
00:37:45.920 --> 00:37:48.880
Elmendorf, thank you so much for joining me here today.
00:37:49.199 --> 00:37:49.760
Anytime.
00:37:50.000 --> 00:37:55.519
And thank you as always to our listeners for joining us for another edition of Engaging Experts.
00:37:55.760 --> 00:37:56.239
Cheers.
00:37:56.800 --> 00:37:59.760
Thank you for listening to our podcast, Engaging Experts.
00:37:59.920 --> 00:38:04.079
Our show notes are available on our website, roundtable group.com.