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 Commercial Litigator and Expert Witness, Erik Groothuis
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In this episode…
What happens when a seasoned commercial litigator steps into the expert witness chair? Erik Groothuis takes us behind the scenes of this fascinating professional duality, sharing candid insights from his journey navigating both roles in the legal system.
Having spent decades as a practicing attorney before adding expert witnessing to his repertoire, Groothuis offers a refreshingly practical perspective on what truly makes an effective expert. Contrary to conventional wisdom, he reveals that communication skills often trump pure subject matter expertise. "It's about storytelling," he explains, highlighting how the ability to translate complex concepts for judges and juries separates mediocre experts from exceptional ones.
The conversation takes surprising turns as Groothuis shares his evolving views on virtual testimony. Despite initial skepticism about remote proceedings, he's discovered they often run more efficiently than traditional court appearances. From the elimination of travel time to streamlined exhibit sharing, this shift represents a permanent evolution in how expert testimony gets delivered – one that experts and attorneys alike should embrace.
Perhaps most valuable are Groothuis's tactical insights on expert witness preparation, engagement structures, and maintaining credibility across cases. He emphasizes the importance of having experience on both plaintiff and defense sides to avoid being labeled a "hired gun," while offering practical advice on billing arrangements and pre-testimony rituals. The discussion culminates with his perspective on why expert witnesses remain crucial to the legal process: they can "tie the whole story together" in ways fact witnesses simply cannot.
Whether you're an expert witness looking to sharpen your approach, an attorney seeking to better utilize experts, or simply curious about this specialized field, this episode delivers practical wisdom that only comes from someone who's truly lived both roles. Listen now for a masterclass in expert testimony from someone who knows the game from every angle.
Introduction to Eric Gruthius
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 . Welcome to Engaging Experts . I'm your host , Noel Balmer , and today I'm excited to welcome Eric Gruthius to the show . Now . Mr Gruthius is a commercial litigation attorney and an expert on New York contract law and professional malpractice , among other things . Additionally , he's an arbitrator for the American Arbitration Association and he holds a JD from Harvard . Mr Gruthius , thank you so much for joining me here today on Engaging Experts . Thank you , and thanks for having me . Of course , let's jump into it . So you've been an attorney for over two decades , but how did you first become involved in expert witnessing work ?
Speaker 2So my journey to the expert side is relatively recent , I would say over the past five years or so , after a couple of decades sort of fighting in the trenches , doing the you know the nuts and bolts of it . I decided I wanted to try , you know , a little bit of a different path , and I did that in two ways One , as you noted , by becoming an arbitrator and secondly , by becoming an expert where I'm sort of one level removed from the hand to hand combat .
Speaker 1Absolutely . In your , in your practice have you used a lot of expert witnesses .
Speaker 2For sure , and that's sort of what led me to Roundtable Group . I had been using a number of their experts as a consumer and that's what got me to thinking gee , you know , it would be interesting to see what it would be like from the other side of it , and I've enjoyed being on the other side as much as I do . You know the litigation and in working with experts , you know , as a , as counsel .
Speaker 1You know you bring up roundtable group . Have you found in general that expert witness referral agencies are helpful ?
Speaker 2Very much so . I mean typically , at least in my firm when we're looking for experts the first inquiry kind of goes around internally to all the attorneys . Anybody know a good expert in this area and oftentimes that will get the job done , because we have some experts that we've used over the years . But many times cases are far more specialized than what we've typically done in-house , and outfits like Roundtable Group I have found to be super helpful for getting the particular expertise at a granular level which a lot of times we just can't find through our own word of mouth .
Speaker 1So let's compare and contrast a little bit . I don't have too many attorneys that are also experts that I've interviewed , so let's talk a little bit about an attorney , but putting on the expert witness hat , let's start from the beginning . You get a call . How do you vet them and how do they vet you ?
Speaker 2For my vetting of them .
Speaker 2I have to make sure that the subject matter , first of all , is something that I have expertise in , which typically wouldn't would already be covered Otherwise it wouldn't be speaking to me in the first place but also that , at least from the initial conference , it's an opinion that I'm comfortable giving , which is not always the case , is not always the case .
Speaker 2Sometimes they're looking for somebody to say something that's just , you know , not quite my understanding of the way the law is practiced or the way that New York law , you know , speaks to particular issues . So that's what it would be like , I think , from my perspective and from the other side . You know this is something I'm , having done it for much longer , you know , more comfortable with . I think they're looking for an expert . That's going to be , you know , first of all to have the subject matter expertise , but also to be able to present themselves effectively , both in deposition and in court , and somebody that they can work with , that they can rely on , you know meeting deadlines and things like that , all of which I'm quite familiar with from having done it as litigation counsel .
Speaker 1Let's talk about some of those intangibles . How do you know from that initial phone call not only that they know the subject matter , that one's almost trivial , but that they're going to make a great expert witness in a deposition , at trial , during cross examination or in front of the judge during a bench trial ? How do you , how do you suss that out during your initial call , and what can expert witnesses do to prepare themselves so that they have a great first impression with an engaging attorney ?
Speaker 2Yeah , it's a great question and I think it's probably more art than science . You know , some of the things that I look for when I'm looking to engage an expert is I don't want them to be only having done one side of the coin . For example , you know , just to give an example , in securities litigation there's damages experts that you know do the plaintiff side , the way that plaintiffs sort of like to calculate their damages , and there's experts that always sort of work on the defense side and you kind of get pigeonholed to be a plaintiff side expert or a defense side expert and you will be subject to cross-examination for always sort of taking one side of a coin . In my own practice I've been on both sides . You know I've litigated legal and accounting malpractice claims on the plaintiff's side as well as on the defendant's side , and so you know that's something that I sort of look at to make sure that they're not . You know we're not going to give away kind of an easy line of examination on whether it's a deposition or cross . That you know you're kind of a hired gun for one particular constituency . You know you're kind of a hired gun for one particular constituency . So I think that is , you know one area and then otherwise , you know it's about storytelling
Journey from Attorney to Expert Witness
Speaker 2.
Speaker 2At the end of the day , yes , you have to have the chops and you know the expertise , but you also have to as the cliche goes , you know be able to explain it to your grandmother or to your eight-year-old . You have to be able to truly understand something . You have to be able to sort of explain it in a way that somebody who's not an expert can understand . And it's amazing to me , you know how many , truly , you know people who have the subject matter expertise but can't quite get out of their own way in terms of how they explain it . And that's really , you know , I think , what's most important , particularly for a jury trial I think less so for a bench trial , but for juries , you know , you really need somebody who is able to explain these things . Charisma would be , you know , a bonus if you could get it . So those are the kinds of things that you can . You could try to suss out , as you say , you know , the storytelling and the connecting aspect of it .
Speaker 1You mentioned the plaintiff-defendant mix . How can a new expert witness or a newer expert witness achieve that when , most of the time , they're getting phone calls or they're working with a referral agency , but they're not necessarily , you know , the master of who's going to call them ? So if a bunch of plaintiffs call them , should they , you know , consider not accepting them all and trying to get a little bit of a balance . Is that something that they need to actively manage ?
Speaker 2Yeah , I think it's a luxury to be able to manage that right At the beginning . You probably have to take what you can get . At least you can build a critical mass of just engagements right , because one of the other early questions you get is how many times have you been deposed , how many times have you testified in court ? That's probably even more important , I think , than which side you've been on . But once you've covered that initial hurdle right , you've got a critical masses of cases under your belt .
Speaker 2I think you could try to be a little more selective so that you try to work out . You know both sides and there are cases where you know it's not totally clear who's the plaintiff and the defendant . Many cases that I'm involved in , you know there's counterclaims and cross claims and so you know one side is nominally the plaintiff . But really you know everyone's sort of suing each other over different things and I think as you get a little more seasoned in your expert career , you can be more selective and make sure that you've worked both sides . But also you have to be careful , right , you don't want to say anything inconsistent with an opinion you've already given Right , and you know how that applies to me as well is . You know , I've made arguments right as an advocate and I have to be mindful right that I'm not saying something as an expert that might be inconsistent with a position . Certainly that's in a current case , but even for prior cases too .
Speaker 1Sure , and you know , speaking of saying something that might be inconsistent , you've been doing this for a hot minute . How do you keep track of everything that you've ever said to make sure that you don't accidentally contradict yourself or , for that matter , what if you change your mind ? What's the best way to approach when you are being impeached , either in a deposition or on the stand , about an opinion that you made publicly at some point in your career ?
Speaker 2Yeah , so this comes up for us a lot . My firm has a blog called the Commercial Division blog where we write up cases that come out of the Commercial Division , which is a special section of the New York State courts . That kind of models itself after federal practice , and a lot of times we'll write briefs or we'll make arguments and our adversaries will point out well , you know , in this blog post you said the law was X , y , z , and now you're saying it's . You know something totally different . So it's something that we're sensitive to . For that reason , you know , I think that there is a difference .
Speaker 2As an advocate right , as long as it's a colorable argument I probably have to make some arguments that may not be squarely within the bounds of existing law . You've got to do the best you can with the facts you're given . I think that's a different exercise from what you do as an expert , which is here's my assessment of what the current state of the law is and here's how I think you know the highest court in New York would rule on this issue . And so I think you have to be a little bit more objective and you know , true , to the confines of the law as an expert , as you would be as an advocate where you know everyone sort of understands . You got to make your arguments because you have one side that you have to take .
Speaker 1Let's talk engagement letters . Are there terms that you , as an expert witness , put in to ensure that you're going to get paid ? For instance , if you know , with a lot of cases moving towards settlement , do you have a non-refundable retainer ? Do you like to do project rates or hourly rates ? What is your billing scheme like and , as an attorney , what do you like to see from an expert witness in terms of a billing scheme ?
Speaker 2push against non-refundable retainers and if the client , as some clients are , are more cost sensitive or they want more cost certainty , we might look to fixed or phased fee engagements to make sure that there's not going to be any surprises . Something that I also have to do as an attorney is my firm has a policy that for an engagement letter of an expert ,
Finding and Vetting Expert Witnesses
Speaker 2the client ultimately is responsible for the expert's fees , so that the firm never becomes , you know , engaged where the expert might be looking to the firm as opposed to our underlying client . That's not something that are always in the templates that we get from experts , but we have to ensure that it's in there just as a risk management issue for the firm . You know , as an expert I don't ask for non-refundable retainers . I think you know you should be paid for the work that you do and you shouldn't be paid for work that's , you know , undone , and so this happens from time to time .
Speaker 2There are cases where I'm engaged and the case settles or just otherwise goes away . You know , whatever's unused gets sent back to the client . Less of an issue when you work with expert retainer firms like Roundtable Group , where they sort of work on the back end for the financial aspect of it . But our general policy is , you know we work typically on hourly arrangements . Obviously , as an expert you're not doing any sort of contingent fee type situation . But you know , for clients that are interested in this kind of arrangement we would consider phased fee or fixed rate engagements as well .
Speaker 1One of the things that I have heard from expert witnesses , especially those that are kind of at the top of their field or well-known , is that simply the act of engaging them might drive a case towards settlement , or just towards a positive settlement , and they feel that some compensation is due when you're retained , kind of really for that purpose . Is that something that you've ever run against ?
Speaker 2I have not heard that . That must be a nice , you know place to be where you could send . You know , I'm worth so much that just having my name on the file is good enough and it's going to drive your settlement . Obviously , you know , there are some experts that are more well-known and more you know impressive , I guess than others , but I have not personally seen an expert that you know . I certainly have had experts who will say look , you know , if I'm going to take on this project , I'm going to have to , you know , hire a team and devote three months of my life to sort of putting this together . If it settles , you know , in a week , like I'm , I've now moved all the pieces around . So you know , we will consider although typically push against the notion that you should get some kind of a non-refundable retainer , but I haven't heard it just sort of based on their prestige or the kind of effect that they might have on the other side .
Speaker 1Sure , sure , let's talk about technology a little bit . A lot of actions are moving towards Zoom and other telepresence methods . How has that affected your practice and how does that affect the way that you connect with a jury or a judge or any other parties during a hearing ?
Speaker 2Yeah . So I would give a different answer today than I would have given you before COVID . I think before COVID , like a lot of lawyers would say , like you know , I need to be in the room , I need to look the witness in the eye , I need to read the body language . But in the early days of COVID so , like you know , summer of 2020 , I had an arbitration it was about 30 hearing days where it was just myself , my partner and the client in our offices . The office was a ghost town . We did the entire arbitration virtually . Arbitrator was someplace , our adversary was in a different place , their client was in another place , and once you sort of got used to the rhythm of the virtual proceedings , I thought it actually worked a lot more smoothly . For example , you know breaks , we say it's , you know 3.15 , let's all come back at 3.25 . And because you got to sign in on the video , you know it . Just , it makes the day go smoother . Sharing the exhibits is also a little easier than passing papers around . And this notion about you know reading body language and all that I think it's a bit overrated and so most of the depositions that I take or defend now are happening virtually even when they're here in New York . You know where I'm physically located .
Speaker 2I think that lawyers have just realized that it's cheaper and it's more efficient , and especially for court appearances . Right , I mean this may be a little off topic for experts , but you know a typical case conference where there's a calendar call . You go to the courtroom there's like 25 cases . You got to sit there for an hour and a half waiting for your case to be called . That's by and large not happening anymore .
Speaker 2I sign in , you know , for a court call conference at 3.30 .
What Makes an Effective Expert Witness
Speaker 2They call us by , you know 3.45 . We're on to the next one and so all the travel and waiting time has sort of gone by the wayside . So for me , you know , it's been a good thing . I have not done a jury trial since you know COVID . Those by and large are happening , you know , in person . But I think as people get , you know , more and more used to Zoom . I know there was Zoom fatigue for a while , but in my practice at least , you know commercial litigation . I think the trend , the majority trend , even after we've sort of gone over the hump of COVID , is everything's happening virtually , if it can be done that way .
Speaker 1Are there ever hybrid situations where some of the parties are physically in court and some of them are remote , and if so , how does that kind of affect the flow of everything ?
Speaker 2Yeah , so I have done situations where the witness is elsewhere . Typically if you're defending a witness you're going to want to be , if you can , in the same location of it , because it just makes it easier . Sometimes you don't have a choice and you just got to get on the phone and call them during breaks and make sure that you know the mute is on . But you know it mixes and matches right If some combination of people are in the same city and the preference is to get them together . But you know one person an arbitrator , an expert , a witness is elsewhere . You know you can make it work . I think the court reporters tend to prefer to be , like , physically in the room with the witness if there is a physical happening . But , like I said , this arbitration that I did we had , you know . Also the court reporter was virtual too . So everyone's just sort of gotten used to the different permutations of it and it works more smoothly than you would expect .
Speaker 1As an arbitrator , you involved in alternative dispute resolution , and that's something that expert witnesses do get used for from time to time . What can an expert witness expect going into mediation or arbitration , and how is it different than a typical court action ?
Speaker 2So the ideal of arbitration is that it's supposed to be more streamlined and more efficient than court proceedings , where there will be depositions , there will be disclosures , there'll be expert reports and if there's disputes , you got to tee these things up in front of a judge . That's in the court context . You know , in arbitration it's all by party agreement , right ? So you don't necessarily need to have expert reports , you don't necessarily even need to have depositions , and if there are disputes around , you know what an expert should or shouldn't disclose or whether their opinions are . You know the opinions they're expressing at a hearing are , you know , permissible given what they've expressed in writing . Arbitrator right there who's sort of incentivized in real time to make those determinations . And good arbitrators , I think you know , understand that the premise of arbitration is to make it less expensive , less time consuming and just more efficient for the parties , and so they try to cut through a lot of the stuff that you see in court , where judges and their clerks , you know , just don't have the time or patience or attention to give to discovery disputes . So you know , if done properly , I think you know , arbitration can be a better way to present expert testimony .
Speaker 2There are arbitrators , unfortunately , just like in you know , any other sort of profession that take advantage right , and the longer cases go on , the more they get paid . And so , yeah , I've seen cases that sort of go off the rails the other way , where you know it turns into a whole sideshow and the arbitrator it's a full employment act for them . But I like to think that's the exception , and certainly when I'm an arbitrator I try to do , you know , hue to the spirit of arbitration , which is to keep things kind of tight , keep a leash on the parties , because I know from being on both sides you know where I'm stalling or where I'm pushing . I know what lawyers try to do to get away with things .
Speaker 1How do you take off one hat and put on the other , especially going from attorney to expert witness ? You know you get called up , you're an expert in a case . How do you disconnect the attorney side and let the engaging attorney take the reins , without offering , you know , a lot of legal advice and just you know wanting to jump in as an attorney ?
Speaker 2Yeah , that was probably the biggest challenge for me . When I first got started as an expert , you know , I'd read the case file and I have all these ideas . Have you thought about this ? Have you thought about that ? And then I realized , you know what . That's really not my role here . I'm not being hired as co-counsel or shadow counsel . They just want me to , you know , give them a certain set of opinions , if I'm able to do it . So I had to kind of restrain myself from being an advocate and it is as I said earlier .
Speaker 2I think it's a different hat , right , it's not just make any argument that you can think of , and you know you've got five arguments and your number one is the best and five is the weakest . But you really have to look at the law and , as the person who's going to be testifying right , your name and your signature is behind your opinion and you're the one who's going to be testifying , right , your name and your signature is behind your opinions and you're the one who is going to be cross-examined on them . Anybody can make an argument , right ? But ? But you know , once you're a testifier , or even somebody who's signing an opinion , you're the one who's sort of , you know putting your name and reputation behind them , and so I have found that I like to let the lawyers take the lead . If they ask for my opinions , I'm happy to offer them , but I don't offer them unsolicited . I just sort of figure out , try to figure out what it is they want .
Speaker 1And then I determine whether I can give it to them and what's the best way to do that . Is the other side likely to try and impeach you on that ? Do they say you know , oh , you're advocating , you're acting as an attorney , Aren't you an attorney also ? Is that something that you have to contend with on the stand sometimes ?
Speaker 2A little bit of that , although in the cases where I've been retained as a testifier it's been in legal , in the legal malpractice context , and so at least in every case that I've been involved with , the expert on the other side is also a practicing lawyer , so
Managing Expert Witness Engagements
Speaker 2it's sort of mutually assured destruction , right , Like whatever they're going to say about me could just as easily be applied to them . So I don't see much of that . You know that argument that like you're just trying to , you know , be a hired gun and make whatever arguments you can Fair enough .
Speaker 1Let's talk about preparation a little bit . So do you have a pre-trial , pre-deposition , pre-going-to-court routine ? I've had people say they do yoga , drink 37 cups of coffee or no . We fast before it . What is your pre-trial ritual routine ? How do you get yourself ready to go ?
Speaker 2Yeah . So I would say I don't try to do anything special . I know , when I'm sitting in a chair all day , you know whether I'm taking a deposition , defending a deposition or testifying myself . Even though you'd think , gee , you're just sitting in a chair like you know what , what could be like you know less taxing , I find that I'm exhausted at the end of the day it's , I guess the brain uses a lot of energy and calories up , so what , I'll just try to do myself , just to maybe clear my head . I'll do like I'll just go to the gym in the morning , even if I have to get up super early , and that kind of like gets whatever you know juices flowing and gets me ready for the day .
Speaker 2You know , try to keep hydrated and other than that . But I don't have any kind of like . I'm not listening to Rocky on the way in or orange wine yogurt to calm myself down . I mean , I'm pretty comfortable in these scenarios from having taken so many depositions , including expert depositions , over the years . Certainly , it's a different exercise when you're testifying , but in terms of the preparation , physical preparation or you know , just rituals it's probably , you know , the same sort of drill .
Speaker 1How about just preparation in general , getting ready to go ? Do you like to review your expert witness report ? Do you like to review files ? Do you , as an attorney , like to put expert witnesses in mock cross , anything like that ? What are some of the expert witness preparation methods that you like to use methods ?
Speaker 2that you like to use .
Speaker 2Yeah , I would say all of the above .
Speaker 2I mean , when I'm the expert , for sure I'm going , you know , point for point , through everything I've said in my report , everything the opposing expert has said in their report , and also all the exhibits , and I'll , you know , typically mark up the deposition transcripts .
Speaker 2So I know kind of like what's most important and I'll go back through those to refresh my memory on like the most important testimony , key admissions , things like that when I'm defending or well , when I'm defending an expert , I will definitely put them through mock cross-examination and the idea being like whatever I'm going to do to you right now should be worse than like whatever you're going to get you know tomorrow at the at the deposition itself . So sometimes you have to like be aggressive and bully the witness a little bit just to see how they react under different stresses . And yeah , if I've done my job right , I've gotten through just about all the documents that they're probably going to see , most of the subject matter that they're going to get covered , and also kind of treated them worse than they're going to get treated during the actual deposition . So that you know , many of them know the drill already , but for some it's their first time and they can be pretty nervous , and so extra prep is a requirement in those situations .
Speaker 1From an expert perspective , how do you contend with going into a new venue that you've never worked in before ? Maybe that's a new state , maybe it's your first tort instead of a criminal action ? Is that something you need to work with your attorney on ? Do you , as an expert , need to understand the law , or can you pretty much just know , be confident in your expertise in opine and not really worry too much about venue ?
Speaker 2Yeah , I think it's the latter . I had a case a few years ago where I was retained as an expert for a case in Iowa State Corp . I'm not an Iowa barred lawyer . I don't know the first thing about Iowa law and I was very upfront about that fact with the lawyers who retained me . But as it so happened , you know , the case involved an M&A transaction . And . But as it so happened , you know , the case involved an M&A transaction and so it was more about you know what is expected of lawyers in M&A transactions .
Speaker 2That didn't turn on particular issues of Iowa law and to the extent there were rules of professional conduct that applied , you know the rules were the same in Iowa as they were in New York . So I try to stay in my lane right . I'm certainly not going to give expert opinions on another state's law , but when I'm in an unfamiliar venue like that , I just have to make sure that I'm talking about the things that I know and that got me there , and if there are areas where I'm not comfortable or I feel like they're outside the scope of my expertise , try to be upfront with counsel about it , and in that particular case they were well aware you know that I was a New York lawyer and there were particular reasons why they , you know , wanted that in this , in this case , and so , as long as you're kind of upfront and stay in your lane , I found that's the best way to navigate that .
Speaker 1Let's shift gears to a couple of general questions .
Speaker 2How do you , as an expert , get off on the right foot with an attorney ? Or , more broadly , what makes for a great relationship between the expert witness'm the attorney or whether I'm the expert ? You have to be sort of . You know you don't treat it like a formal business meeting , Right ? I think it should just be a conversation kind of like this one , Right , Like this is somebody you're going to be working with for an intense period , probably a stressful period , and so you want to convey that you know you'll be a good person to work with , You're going to be reliable , You're going to meet deadlines , but also that you know you can flash your skills , you know , as needed . So it's a little bit of selling , but also it's more like I've been where you are . In fact that's my day job , so like I kind of know what , what , what you're looking for , and here's you know why . I think I'm the right person you know to to offer you that set of particular skills .
Speaker 1Are there any red flags that you look out for during the course of the engagement ?
Speaker 2Yes , I mean , you know falling behind on payments would be one particular red flag . You know falling behind on payments would be one particular red flag . There are others where you know maybe it would be a little overdramatic to call it a bait and switch , but you know you're presented with a certain set of facts and ask for a certain opinion and then when you get involved you realize you know what they're really looking for is something that's beyond the scope of what was talked about and maybe it's an area that you're not sort of comfortable wading into . And that's happened to me once or twice where I've had to say I'm sorry , you know I can say A , b and C . You want me to say D , e and F . You know we didn't talk about that and I just can't do it . And most of the time the lawyers understand and you know it's their job to ask and it's my job to say yes or no .
Speaker 1But yeah , I think that's typically how that would shake out . Why are expert witnesses important ? Why is the work that we do as expert witnesses significant and valuable to jurisprudence broadly ?
Speaker 2jurisprudence broadly . Yeah , so I mean legally , doctrinally , the function of an expert is to explain things to a finder of fact typically a jury but sometimes a judge that are just beyond the scope of a lay person's knowledge . You know , as a practical matter , I take depositions all the time and 90 plus percent of the answers I get from fact witnesses are I don't know , I don't remember right . Like you're asking them , stuff about that happened two , three , four , five years ago , sometimes more than that . Like you know , I wouldn't even tell you what I had for breakfast . So , like it's typically not that helpful to examine fact witnesses , obviously you take their deposition so that when they show up on the standard trial and all of a sudden they have this perfect recall , you can pull out the transcript and , you know , impeach them .
Speaker 2But an expert you know a really good expert can kind of tie the whole story together in ways that fact witnesses are often just unable to do , either because you know they're really successful business people who are not used to be told like no , or you have to do it this way , or they're just , you know , non-parties who are like not that invested and don't really care , and or don't remember .
Speaker 2You know the expert has to remember , has to know all the facts , can't really say I don't know or I don't recall . So they can be typically very effective witnesses . And you know when I've been on trial , sometimes I'll use the expert as the very first witness right to sort of set the stage . Here's what this particular case is going to be about and it's fairly technical . It's some , you know , securities transaction that you might not understand , and so you know . I think my experience is a lot of times the experts can be , if not the most , among the most important witnesses at the trial , other than maybe the principal on each side , because they kind of they're there , at least ostensibly , to help the jury understand something Right , and they're not . They don't necessarily have a vested interest in the way that the parties do .
Speaker 1They don't necessarily have a vested interest in the way that the parties do . Do you have a case or two that you can talk about that either change something about the way that you go about expert witnessing or reinforce something that you already do ? What are kind of the pivotal moments that you've had throughout your career as an ?
Speaker 2expert witness yeah , so that's a good question . I have to give that some thought . An expert witness ? Yeah , so that's a good question . I have to give that some thought . I mean the most recent one I had was supposed to go to trial , actually in New Jersey and the case settled , as they often do , sort of you know , right before trial . But I found that the expert on the other side had experience and credentials that were very similar to mine , right , we were sort of mirror images of each other and I kind of understood what he was saying and he understood what I was saying .
Speaker 2We never had the occasion to meet but , like , through reading the reports you could see we were kind of , you know , going down the same path and it would have been interesting to see at trial , right like me , giving our lawyer my thoughts on his opinion , you know , and vice versa . I would have liked to see how that played out . It can be frustrating , right . You put so much work into things and so many cases settle just because you know jury trials are so unpredictable and parties like the certainty of a settlement , so so many of them , you know , wind up going away . You know that I guess I'm used to right from being an advocate . But I was really looking forward to , you know , to doing this particular trial because it seemed it was an interesting set of legal issues and , like I said , you know , the expert on the other side was very similar to me , I thought , but you know , wasn't meant to be .
Speaker 1Before we wrap up , do you have any last advice for expert witnesses , especially newer expert witnesses , or even attorneys that are working with them ?
Speaker 2Yeah , I mean , I would say for experts it's almost more important how they can present themselves than whether they have the subject matter .
Speaker 2There's probably you know lots of people that could speak intelligently on this subject matter , whatever it is that you have , but the more rare skill is the ability to communicate the expertise in a way that's understandable . You're going back to what we were talking about before and I think you know lawyers have a pretty good sense of how witnesses
Virtual Testimony in Modern Litigation
Speaker 2present and how experts present . You know that for me is the most important thing , the most important thing , and I'll almost sometimes sacrifice the actual subject matter expertise and deal with those issues on cross-examination , because a really experienced and seasoned expert can know how to sort of parry those questions . I'd rather have somebody who knows , like you know , 90% of the subject matter but can really handle themselves in a deposition or a court , than somebody who who truly is , you know , a 100 percent expert , knows everything cold but really can't like explain it or gets flustered when they're , you know , put on the spot or , you know , tries to give up the farm or not . Maybe try it , but inadvertently gives up the farm because they don't know what else to do .
Speaker 1Sage advice . Mr Gruthius , thank you so much for joining me here today . It's been my pleasure and thank you for having me and as always , thank you to our listeners for joining us for another edition of Engaging Experts Cheers .
Speaker 2Thank you for listening to our podcast Engaging Experts . Our show notes are available on our website roundtablegroupcom .