Engaging Experts
After 25 years helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On this podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Engaging Experts
Engaging with Telecommunications Expert, Gerry Christensen
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In this episode…
Our guest, Mr. Gerry Christensen is the founder of Wireless Waypoint, a consulting firm specializing in wireless technology solutions, and Mind Commerce, an information technology and strategy firm. Additionally, he’s the Head of Partnerships and Regulatory Compliance at Caller ID Reputation, a technology-driven service company. Mr. Christensen is a sought-after expert witness and holds an MBA from Auburn.
If you can’t take your emotions out of a case, you should decline, according to Mr. Christensen. Even without a traditional conflict of interest, it is important to be comfortable opining on a topic given the facts of the case and the framework established by the engaging attorney. Neutrality is key.
Check out the full episode for our discussion on expert witness referral services, trying too hard to be helpful, and arbitration.
Introduction to Gerry Christensen
Speaker 1This episode is brought to you by Roundtable Group the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at roundtablegroupcom.
Speaker 2Welcome to Engaging Experts. I'm your host, noah Balmer, and today I'm excited to welcome Mr Jerry Christensen to the show. Mr Christensen is the founder of Wireless Waypoint, a consulting firm specializing in wireless technology solutions and applications, and MindCommerce, an information and communications technology strategy company. Additionally, he's the head of partnerships and regulatory compliance at Caller ID Reputation, a technology-driven service company that helps businesses maintain the integrity of outbound phone communication systems. Mr Christensen is a sought-after expert witness and holds an MBA from Auburn. Mr Christensen, thank you so much for joining me here today on Engaging Experts.
Speaker 3It's great to be here, Noah.
Speaker 2Let's jump into it. So you've been working in information and communications technology, also called ICT, for over 25 years. It looks like how did you first become involved in expert witnessing?
Speaker 3Yeah, and, as a matter of fact, I need to update my bio, I think, because it's actually over 35 years now. So, yeah, your listeners can't see my gray hairs and I've earned all those gray hairs. But yeah, I got involved with it sort of circuitously. I've always had a day job per se. I'm not like a professional expert witness. I know there are some folks out there that that's all they do but it's always been sort of a side gig for me.
Speaker 3And, as I recall, the way I got involved with it initially was a book that I had written. Somebody had read the book and they had a particular problem. I've actually gotten some jobs as a result of that sort of thing as well, like working for a startup company. But this one particular instance, I think it was a case involving intellectual property where one company was suing another one saying you're infringing my patent and that sort of thing, and I had written a book about prepaid wireless. So somebody reached out to me and said hey, I think you you know a lot about this topic. Would you be interested in at least consulting for us and perhaps even being an expert witness? So that's how I got involved initially.
Speaker 2Did you know that expert witnessing was a thing at all at that point, or was it just a totally out of the blue kind of request?
Speaker 3It was somewhat out of the blue. I mean, I knew it was a thing, but it's not the type of thing I ever thought of doing as a career or even as a side gig, so I just kind of stumbled into it.
Speaker 2To be honest, what was that first phone call like? So you get a call, presumably was it the attorney, or, like one of their, an assistant, a paralegal.
Speaker 3It was an attorney and it was directly with the firm Fast forward. Now I work with a lot of brokers, like Roundtable Group, that broker these conversations, and the way that goes, of course, is you know you talk to Roundtable Group first and then they kind of clear conflicts and see if you're appropriate and then you talk to the attorney and then they kind of clear conflicts and see if you're appropriate and then you talk to the attorney. But this was the other way around, where I talked directly to the attorney. You know, initially it was kind of an ego boost, I guess you could say, because he found me and he says oh, you're an expert in this area and actually in that first call I had a lot of useful things to kind of help him out. But then from there we got into the logistics of getting engaged and moving ahead and helping with the case.
Speaker 2So, during those first phone calls, what were the sorts of vetting questions that they gave you, and has that changed over the years? You've been doing this for a long time.
Speaker 3Well, initial vetting questions they're pretty typical.
Speaker 3First of all, they speak with you a little bit about the matter, whatever it is.
Speaker 3That first one was an intellectual property dispute, but there's all kinds of different things that come up and you know, typically the very first thing is they want to clear conflicts.
Speaker 3That's always a good idea.
Speaker 3They'll talk about the different parties involved, oftentimes even before you know the specifics of the matter, because you know they want to make sure there's no conflict of interest or anything like that.
Speaker 3So we did that and then we talked a little bit about the matter itself and I think either during the call or shortly thereafter they sent the patents to me and some other material. So that's very typical as well, as you'll not only get a copy of the complaint itself, where the plaintiff and the people that are involved on that side are talking about what their concern is, and then you read that and then any other supporting material and then typically from there you move to an agreement if you both think that there's a good fit there, because you know you want to read all that stuff, you want to make sure that there is in fact a fit, you don't want to make assumptions. And then again, if both parties agree, then you sign an agreement and you move ahead as a consultant and or an expert witness and by the way, there is a difference between a consultant and expert witness.
Speaker 3An expert witness is actually named as a person that can testify in court or maybe in live arbitration or something like that, which I've done, as opposed to a consultant, which could be just kind of behind the scenes and never actually testifying in court or even, for that matter, doing an affidavit or something like that or a deposition.
Speaker 2Do you have a preference for either being a consulting expert versus a testifying expert?
First Steps into Expert Witnessing
Speaker 3Well, I don't have a clear preference. I've done both. Being an expert witness means that you will have to testify. From that it's recorded and there's a transcript. Same thing for an affidavit. That's a written document that you write down that's submitted to the courts. One thing in my experience that I have not yet experienced is a live court testimony, because it seems like every case I've been involved with always sells before it goes to court. I guess that's a good thing because it saves some money there. But I do have experience with providing live testimony with arbitration, so there's an arbiter in a case. So I do have that as a consultant. You don't have to give testimony necessarily, you're just kind of behind the scenes, and I would say that both have advantages and disadvantages. I don't see a clear preference myself personally for either one.
Speaker 2You mentioned arbitration. How is alternative dispute resolution, like arbitration, different from a jury trial for an expert witness?
Speaker 3Well, first of all, arbitration typically comes up when it's written into some kind of a contract, and that particular case that I was involved with live testimony with arbitration. They had a contract, there was a contract dispute and I believe the way the contract was written was that, rather than going to a jury trial, that they would resolve it via arbitration. So typically that's how you get there. I would imagine that even if it's not written into a contract, you could still wind up with arbitration if both parties agree to it. But both parties don't have to agree to it. Typically it's cheaper and it's easier. It's resolved more quickly because court cases they can really drag on and cost a lot of money for all the parties involved.
Speaker 2And in arbitration do expert witnesses still do things like write expert witness reports.
Speaker 3Arbitration. Do expert witnesses still do things like write expert witness reports? Oh, absolutely yeah. As a matter of fact, typically there's an expert report that's written on the plaintiff side that's asserting some type of a position, and then if you're on the defendant side, you have an opportunity to write a rebuttal and all that information is submitted to the powers that be that are involved, and whether that is ultimately to the court itself and it goes to a jury trial or whether it goes to an arbiter, they have a chance to review that prior to any interactive questioning that they might have at the actual live testimony for arbitration. So all those things are very important.
Speaker 2Let's back up a little bit. You had mentioned depositions. What is your preparation strategy for something like a deposition? These can be quite long and quite grueling sometimes. So how do you like to get yourself in the right headspace and to be prepared and ready to go for a potentially difficult deposition?
Speaker 3Well, first of all, prior to a deposition, you would have most likely already done some other things, such as developing an expert report, and had quite a few conversations with the attorney on the side that you're working with. So just real basic prep stuff like review the facts in the case, review opinions that you've already offered as part of your testimony. You might talk about things like what sort of questions the other side might ask, and that's really basically it, and other than that, it's just showing up being relaxed, making sure that you offer informed opinions that don't stray away from the case. That's really, really important. Speculation is never a good idea. You have to stay within the boundaries of your expertise and the facts of the case. So usually just stuff like that, just general common sense prep work.
Speaker 2Have you been in situations where the other side is trying to impeach your credibility, be that through something like a Dobert hearing or some intense depositions, where they're saying this person isn't actually an expert at all. Look at this, they've contradicted themselves once, uh things like that. And if so, how do you uh handle those tense situations?
Speaker 3Well, that kind of stuff happens all the time and you know, most of the time, uh, when they're trying to do that to you, they're very professional and they're not rude, so it's it's um, you know, very low probability that they're really crass when they do that, but actually some of those are the ones that are the more dangerous, because they're trying to act like they're your friend, but you always have to remember you know they're not your enemy, but they are your opposition, so you need to be cognizant of that.
Consultants vs. Expert Witnesses
Speaker 3In terms of Daubert rulings, I've only had that happen once. I've only had that happen once and it was an interesting case in hindsight's 2020, where I was requested to opine about a particular piece of software and in retrospect, I wish I hadn't opined about it because and the Dalbert ruling for me in that instance was my testimony was not allowed and the court said the reason why it wasn't allowed is because I didn't actually review the source code. I reviewed documents related to the source code. With that, because I think that one could make a strong case to the court that specifications and things that are involved in developing the source code are almost as good or just as good as a source code. But in that particular case I did have a Dalbert ruling. They didn't say I wasn't a good expert. I never had anything like that happen. But my specific testimony relative to the software was not allowed in that particular ruling.
Speaker 2Wow, that sounds like a little bit of a difficult situation, but it's also a learning experience. Do you have any cases that kind of served as major touchstones in your career as an expert witness?
Speaker 3Yeah, I have a few of those, and one that stands out in my mind in particular was I had one case where we actually did a mock trial and again, I haven't actually provided expert testimony in trial only because they always settle, and I think, ironically, this particular one also settled. But we did a mock trial and I thought I was ready for it. But they, they, they actually did a really good job of putting me under the hot lights, so to speak, and I got to admit on that particular one I was not ready. I, you know. You know some of the typical things like don't say too much, stick to the facts as you know them, and when they throw you a curve ball, that doesn't make any sense, it's okay to say I'm not following you. It doesn't make any sense because there will always be an opportunity to clean it up on cross, where the attorney on your side will. If you're getting confused, they'll clean things up a little bit. So I think on that particular one, I got a little bit frazzled, but I definitely learned a lot from it, though the main thing there is to be calm and collected and, you know, keep your answers accurate and complete, but not too long, you know, don't you know? Don't stray from the particular question and they're asking and don't try to be.
Speaker 3You know, one of the mistakes that experts make, I think, sometimes in any kind of testimony, is you try to be too helpful. You know you try to answer the question that you think they're asking, cause like one of the tactics that will often happen is they'll ask the same question maybe two, three, four different ways and as an expert, I guess it's like human nature. You want to try to be helpful, you want to try to be a good person if you're so inclined, but it's not a good idea. What you should do is kind of stick to the script, stick to what you've already said, stay within the boundaries of your expert report, for example, and if they do try to lead you down a particular area, you know you should always respond because that's really, really important. But again, if they get you off track, if they're trying to trip you up, the attorney on your side can always clean that up on cross.
Speaker 2You have a lot of great advice regarding going into a trial. Is this stuff that you picked up during the mock trial, or are these things that the attorney first told you? Hey, you want to be like X, y and Z. You can kind of prepared you for the mock trial, then use the mock trial to test how well you are retaining that.
Speaker 3It's really a combination of everything that you just said, noah. It's not only the mock trial itself, which is that particular case. For me was a little bit more of a high pressure thing, because they were definitely trying to throw me off in a big way and I wasn't expecting that. That was somewhat early on in my expert witness consulting career. But I would say, more generally speaking, all of the other testimony work that I've done mostly the depositions, similar things come up where they try to throw you off, and so I've read some good books. I've had some good coaching and discussions with attorneys, so I feel much more confident than I was, say, 20 years ago in a similar situation.
Speaker 2Let's talk about relationships. How do you get started on the right foot with an engaging attorney? What are the factors that go into building a positive expert attorney relationship?
Speaker 3Well, I would say there are a lot of the same factors that you have with any business relationship, and that's the important thing to keep in mind that it is, at the end of the day, a business relationship and that you need to keep it professional.
Speaker 3I would say having certain pleasantries and things like that is important because, after all, that is part of the human condition is that we need to connect with one another but at the same time, though, recognizing that it's a business and that the attorney on the other side they've got their billable hours and they've got probably a lot of other cases and you need to make sure that you serve them in the best way possible. Be as efficient as you can, don't waste their time, and I think that helps you to earn their respect. If you're somebody that's been an expert witness on quite a few cases, like I have, they probably already assume or they already know from references that you're good and you're very helpful and efficient. But if you're earlier on in your career, building up that reputation is really important that they know that you're somebody that's going to help them get done what needs to get done and not waste their time.
Speaker 2And then, on the other side of that coin, what can attorneys be doing to satisfy the needs of their expert witnesses? What are the things that you like to see from an attorney?
Speaker 3Well, one of the things I like to see is just talking about processes and procedures. Expert report is a good example, like one of the things that often comes up when you're planning for that is the attorneys. A lot of them will ask you what is your preference as an expert? Do you like to write it completely from scratch or do you like to start with a template? And I've worked both ways, by the way, both processes by the way, both ways and so, and they both have advantages and disadvantages.
Preparing for Depositions
Speaker 3But at the end of the day, you, as an expert, you own your testimony. So whether they start off with a template, which is based on conversations that you've had and facts and opinions that you've discussed on the phone, and they put that into a template and then you review that and edit it and clean it up if necessary, or whether you do it completely from scratch, you own that. But getting back to the original question, that's one of the things I like to see is for the attorney to a certain extent, ask the expert how do you do things and what is your preference for working? So I always like to have an attorney that asked me that.
Speaker 2Absolutely, and then you can be flexible in your approach, whether or not you're working from a template or working whole cloth. There's another relationship that sometimes occurs on larger trial teams, which is with other expert witnesses. Perhaps there's paralegals, there might be a consultant coming in to do a mock trial, something like that. Have you worked on trial teams that have other moving parts that you've had relationships with and, if so, what are the important factors in those relationships?
Speaker 3Yes, I have, and so oftentimes you have to work with a paralegal and what they'll do is they'll work with you on the basics of how things are going to play out for that particular day, if it's a mock trial or if it's maybe a discussion about planning for the proceedings of the court, because you know, oftentimes things change and so you have to be really flexible. So knowing who's who and who to contact, and so you have to be really flexible. So knowing who's who and who to contact and again that kind of gets back to being mindful of the attorney's time, because you know they're working on not just your case. You know they're working on oftentimes you know many cases, sometimes dozens of cases. So knowing who's who, who's working on what and handling those blocking, tackling logistical type things with the right person is very, very important as well.
Speaker 2Do you have any specific software techniques that you like to do to manage your schedule? You said that you're not a full-time expert. You've got this is a side job for you, so how do you keep track of where you need to be when everything needs to be done all of your logistics?
Speaker 3Well, what I found, at least for myself anyway and again, I'm not, this is not my day job and it doesn't take up a significant amount of my time all the time. It's kind of feast and famine for me. So when there's an active case where there's a lot going on, then yeah, that's more of a challenge and I use the typical CRM tools to do that. But I'll often go long periods of time where I don't have things going on with the case. And for your listeners out there, they may find themselves in that type of a situation as well, where maybe you're scheduling some initial discussions about a case and they might get back to you later and say, well, thank you very much for your time, but we're going in a different direction.
Speaker 1That happens a lot by the way.
Speaker 3There's a very wide funnel where you spend a lot of time talking about a case and, for whatever reason, they don't select you or maybe the case even settles before they even get experts. So you have to manage your time on the front end with a lot of that. It's more, when you get into the case a lot and there's sort of a cadence of things that you're delivering, that you have to really manage your time much more carefully.
Speaker 2Have you had to say no to a significant number of potential engagements? No.
Speaker 3I wouldn't say a significant number, but I've have had to say no. I think maybe in very rare occasion I had sort of an ethical dilemma, either with a plaintiff or the defendant, where I just thought that what they were doing was outright wrong and I would deny that as a matter of fact. Yeah, one does come to mind as a matter of fact. It was a case where, of course, I didn't know all the facts because I haven't gotten into it, but I had a really hard time not forming my own opinion about the case and I think it involved wrongful death or somebody that was hurt, involving a trucking company or something like that, and I just morally I just couldn't do it. No-transcript couldn't do that, so I rejected that case.
Speaker 2Right and neutrality is job number one for an expert witness. As you say, You've brought up conflicts a few times. What are some of the more standard types of conflicts that you have to be wary of as an expert witness when you're considering whether or not you should take an engagement?
Learning from Challenges and Mistakes
Speaker 3Well, a real obvious one is if either party is a customer, because obviously, even if there is unconscious bias there, the other side could claim bias. So even if you're not actually causing harm one way or another because you're not actually biased, they could claim unconscious bias and that could cause you to either lose the case or even just lose your own credibility, because you know, if you took a case when there could be a claim of unconscious bias, then that hurts your own reputation as an expert and might keep you from getting other cases. So that's one of the things you need to look out for as an expert and might keep you from getting other cases.
Speaker 2So that's one of the things you need to look out for. When we very first began our discussion, you had brought up Roundtable Group and how that has kind of changed some of the way that your initial phone calls go, because some of it's been pre -vetted. In general, have you found expert witness referral agencies like Roundtable Group to be helpful to your expert witness practice?
Speaker 3Extremely helpful. I mean, there's some folks that I've talked to that never use them and every time they say that it's because they prefer to be able to charge more because of course there is some overhead there, understandably for a valuable service that Roundtable Group and others provide. But I would say that is at least in my own personal experience but I would say that is at least in my own personal experience that that is far outweighed by the volume of opportunities that are brought to you. And I don't know exactly how this works out, but I can just imagine there's a lot of law firms that also want to save time and they don't want to go through LinkedIn and try to find the right expert for themselves. They'll just rather contact Roundtable Group and have have you.
Speaker 3So it's all about leverage. So in my experience it's a good thing, even though understandably so, the funnel is quite wide at the top end. You know you'll have lots of conversations that don't lead to anything. So it's somewhat of a numbers game there. But but if you're not having those conversations, that wide part of the funnel, the top part of the funnel then you're just not going to get engaged at all. So that's why it's really important.
Speaker 2Do you have any terms that you like to insert into contracts to make sure that you're paid? You said that all or most of your engagements have led to depositions. Do you, for instance, have a non-refundable retainer to make sure that you make some money in case it goes to settlement?
Speaker 3Yeah, I kind of go back and forth on that a little bit, to be honest.
Speaker 3No, I'd prefer on all of my cases to have at least something up front.
Speaker 3You know the proverbial skin in the game, because you're right, that does happen more often than you would like where you get retained and you have little or no billable time, because you know you're just kind of like in this perpetual holding pattern that settles or whatever. But sometimes you have to say no, sometimes you have to say OK, well, I'm not going to ask for a retainer because maybe the end client is just not willing to do that. But I would say, if you're a listeners out there, if you can get at least a small retainer, that's a good idea For the reason I just stated. The other thing that I've heard that happens sometimes is sometimes either on the plaintiff, even if they don't know if they want to use you or not, they might want to retain you, get you under protective order and all that stuff, and then you know you just can't do anything. So you know, I'm not saying that everybody does that, but it's possible and that's also one of the reasons why you want to ask for a retainer.
Speaker 2It's certainly something that I've heard from other expert witnesses as well. For a retainer it's certainly something that I've heard from other expert witnesses as well. Do you have thoughts on, just in general, the importance of expert witnesses? Why is it important that there are expert witnesses? Why is the work that experts do important for jurisprudence overall?
Speaker 3Well, again it gets back to you know kind of the common sense thing that you need to have a neutral, dispassionate party that knows something about the subject matter, because all the other parties have a vested interest. You know, each of the attorney sides have a vested interest in winning. The defendant side has a vested interest in getting out of whatever the dispute is, and the plaintiff side of course has some kind of recourse that they're looking for. But the expert. We don't care who wins or who loses. What we care about is our reputation, and what we care about is our credibility and being able to put forth what we believe are the facts of the case and our opinions based on the facts, and that's it. So it's really crucial, I would say not only for the parties I just mentioned, but if it goes to a jury trial, it's really important for the jury to be able to hear that testimony, because you know they may be listening to that expert more than anybody else, and the same goes for the judge.
Speaker 2Before we wrap up, do you have any last advice for expert witnesses and, in particular, newer expert witnesses and also attorneys who are working with expert witnesses?
Building Attorney-Expert Relationships
Speaker 3I would say a few things. One thing is continuously take a look at your background, your skills, your expertise. Update that with somebody like Roundtable Group or whoever you're working with. Keep that up to date on LinkedIn. I'm kind of preaching to the choir here. I try to do that as much as I can, but there's always more that you could do there, because you never know what you might get interest in in terms of your background or what you're retained to do. For example, I've been doing IT and telecom for 35 years, but the last five years I've been focused more on the voice over internet protocol system and, specifically, business to consumer contact, and I focus on both sides of that, both the protecting the consumer's part as well as making sure that calls go through to consumers from legitimate enterprises that are following all the rules, and so I keep my LinkedIn profile up to date on that.
Speaker 3And getting back to your previous question, sometimes I have to turn things away.
Speaker 3As a matter of fact, there was a case that came up recently where what they call a non-practicing entity some people refer to them derogatorily as a patent troll there was a non-practicing entity that was claiming that some of the carriers were violating their patent that had something to do with this thing called stir shaken.
Speaker 3Now I'm not going to offer my opinion here for your podcasters, but I decided to not be any part of that because I thought that I definitely didn't want to be adverse to the carriers, that's for of that. Because I thought that I definitely didn't want to be adverse to the carriers, that's for sure. And I thought that that might be sort of a thorny thing to get involved with. So sometimes you just have to turn things away. That was an instance in which keeping my LinkedIn profile up to date did lead to somebody reaching out to me directly, but I just turned it away because I just didn't want to be involved with that. But I would say, getting back to your original question, keep your skills up to date, make sure that it's out there, and be prepared to have a lot of those top end of the funnel conversations, because you don't know which one of them is actually going to lead to your involvement on a case.
Speaker 2Sage advice. Mr Christensen, thank you so much for joining me here today.
Speaker 3Thank you, noah, it's been great to be here.
Speaker 2And thank you to our listeners for joining us for another episode of Engaging Experts Cheers.
Conflicts and Ethical Considerations
Speaker 1Thank you for listening to our podcast Engaging Experts. Our show notes are available on our website roundtablegroupcom.