President’s Update # 7 November 15, 2021

 

 

 

 

By: Tom Blackburn, PE, GE, F. ASCE, F. ACEC
GBA President

Hello fellow GBA brothers and sisters. I hope everyone is getting in the holiday spirit! The Blackburn clan is planning out the Thanksgiving meal and our Christmas holiday time now. I love this time of year with beautiful weather and a slight slow-down of the hectic work schedule so we can spend time with friends and loved ones.

It was great to see so many of you at our conference in beautiful Henderson, NV a few weeks ago and then again just last Friday at Toddies with Tom! It has been nice to start attending some meetings in person again. I think we’ll be using virtual meetings more often now, but they simply can’t replace in-person experiences.

Lessons Learned from 30-Years of  Forensic and Expert Work

Over the last 30 years, I have worked on hundreds of forensic cases. I have attended many mediations, testified at over 50 depositions, 9 trials and 3 binding arbitrations. Here are some important lessons I learned along the way.

Before deposition testimony

Think about what you write and whether you can answer questions about it. This includes email and texts. Most deposition notices require you to produce all your reports, calculations, messages, invoices, and any of written material you relied on. If you write something down, expect that the other side will get it and ask you questions about it.

Prepare a statement of opinions (SOO) before you testify. The SOO keeps you focused on your opinions. You often must include some unflattering things for your client in the SOO, so you’ll want to go over this with your attorney, so they know where they are weak.

Most forensic cases are mediated – often multiple times. Even though your work can be protected by the mediation privilege (if you mark documents as mediation privileged), at some point mediation might fail. When that happens, carefully go through your file, and separate your final testimony from your mediation protected information (preliminary reports, cost estimates, plans, preliminary calculations, etc.). Mediation protected documents don’t belong in the file you produce before your deposition.

Outside of testimony, tell your client and their attorney what their strong and weak points are. That way they can present their strongest case.

You can’t get over-prepared for testimony. Know your file well. If you have limited time, first and foremost, know your work material best. If they catch you unprepared with your own information, the testimony likely won’t go well.

During deposition testimony

Dress and act like a professional. The stakes might be high if it has gone this far. Don’t show up looking unprepared and frumpy. You get to teach them how to treat you.

Testimony is designed for the other side to understand your position. That’s why it is helpful to have your SOO. The other side also uses testimony to impeach your credibility. Be prepared to talk about your past experiences and knowledge on similar cases. If you are vulnerable here, they might try to have you dismissed at trial.

Don’t offer all your musings, ideas, and opinions during testimony. Attorneys are trained to exploit you in this area. They sense when you are not on solid ground and will put you in a difficult spot. “I don’t know” is likely a better answer than something not well thought out. Wait for the full question (and objections) and answer them briefly without extra information. You don’t have to anticipate their next question; they’ll ask additional questions if they have them.

You are not an advocate. You must be truthful. Your reputation is at stake.

The attorney won’t typically know the technical aspects as well as you. However, they will be prepared by their expert(s) and others. Again, control your ego and don’t jump ahead and answer anticipated questions.

Don’t get mad or vindictive. No matter how belligerent or demeaning the questions seem, keep your cool and answer them calmly and truthfully. Again, the attorney is trained in this area, you are not. Don’t stray from your statement of opinions.

If you get rattled, ask for a break. No one’s keeping track of them, and they expect it. It’s not a marathon.

Ask for payment when you’re finished with the deposition.

During Trial Testimony

All the chips are on the table if the case gets to trial. This might translate to a lot of pressure on you. Do what you need to do to get a good night’s sleep before the trial.

Again, be prepared. The better you know the file, the better it will go.

Anticipate questions from the other side. Know where you are weak and will concede the points. If you don’t have this worked out in your mind before trial, you might lose credibility as you scramble for answers.

Don’t talk to jurors in the hallway. However, you can smile at them and be courteous. Like all human interactions, they are evaluating you from the first time they see you.

Like all people, jurors only remember and understand parts of what you say. However, they remember how you made them feel. When you answer questions, speak to them, not the attorney that asked the question. Again, they will remember whether you made them feel like you were a trustworthy expert, or a patronizing hack.

Further, keep the concepts simple and understandable. They don’t care how important and educated you are. They just want to understand the important points so they can decide.

Most of the above information also applies to bench trials. The judge too will evaluate you and decide whether he/she trusts you. Like arbitrators, sometimes they will just go off the script and start asking you their own clarifying questions.

Conclusions

Forensics work that leads to testimony is not for everyone. You don’t control the cards you’re dealt. Some cases don’t turn out well for your client. And you face some high-pressure situations from time to time.

However, we get some interesting cases, and we often learn from them. And they make our firms more aware of what can go wrong on projects. The experience is like chess, you must think ahead a couple moves or more to do your best work.