Engaging Experts

Engaging with Mining Engineering and Safety Expert, Dr. Kirk McDaniel

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What does it take to bridge the gap between deep technical expertise and effective courtroom testimony? Dr. Kirk McDaniel, with over 40 years of experience in mining and underground spaces, pulls back the curtain on the fascinating world of expert witnessing.

The conversation reveals crucial insights for both aspiring expert witnesses and attorneys who work with them. Dr. McDaniel emphasizes the cardinal rule of expert testimony: "Know your lane and stick to it." This principle has guided his case selection, leading him to decline opportunities outside his domain of mining engineering and safety. His approach has protected him from credibility challenges while allowing him to deliver authoritative opinions in his field.

Whether you're a seasoned expert, an attorney who works with technical specialists, or simply curious about how complex technical matters translate to courtroom settings, this conversation offers a rare glimpse into the strategic thinking behind effective expert testimony. The takeaway? Expertise alone isn't enough—understanding boundaries, maintaining professional standards, and fostering clear communication ultimately determine an expert's courtroom value.

Meeting Dr. Kirk McDaniel

Noah Bolmer

Welcome to Engaging Experts. I'm your host, noah Balmer, and today I'm excited to welcome Dr Kirk McDaniel to the show. Dr McDaniel is the owner of Lamp Head Safety Consulting LLC. A consulting firm for mining and other high-risk industries. Additionally, he is a board member for the International Academy of Mine Safety and Health. Dr McDaniel holds a PhD from the Colorado School of Mines. Dr McDaniel, thank you so much for joining me here today on Engaging Experts. Thank you, let's jump into it. You have over 40 years experience in mining and other underground spaces. How did you first become involved in expert witnessing?

Kirk McDaniel

Well, in a recent engagement when I was at the Colorado School of Mines as part of the faculty, we would occasionally get queries into the university seeking an expert in one thing or another, many of which were involving mine safety cases, mine accidents, fatalities, unfortunately and I have expertise in that arena. It wasn't something I sort of planned on, but I thought I could do that, so that's kind of got started by accident, if nothing else.

Noah Bolmer

Sure, absolutely Well, tell me about some of those first phone calls. Were you even aware that expert witnessing was a thing that people do? At that point you get a call out of the blue from an attorney for a potential engagement. And how does that go for a first-time expert? Well, I think in my case, it was a query from an attorney.

Kirk McDaniel

It wasn't something that I I was certainly aware people do expert witness work. It wasn't something that I thought that I could do or that I had thought I could be doing this sort of work until I examined the first opportunity and okay, here's a person who has a problem. I have expertise in that arena, I can help them with that problem. And I mean best of both worlds. I get an opportunity to get paid to help them with that problem.

Noah Bolmer

Sure, absolutely. Well, let's talk about those questions. You know you're vetting each other. It's a two-way vetting process. When you receive a call for a potential engagement, how do you determine whether or not you are the right person for the job? And the other side of the coin, how do you determine that this is an attorney and an engagement that you care to work with?

Kirk McDaniel

Well, I think I've learned a lot more about this process over the few years since I started doing this sort of work. I'm now more selective or more inquisitive about the nature of the case. Inquisitive about the nature of the case, I think when I first started, it was almost any case that came along. I wanted to try to tackle it. More recently, I've become more scrutinizing, asking questions about the specific nature of. Oftentimes you get narratives that come along with the engagement.

Kirk McDaniel

This case involves this, that or the other thing, and I have found that often those narratives are woefully inaccurate or completely inaccurate. And so I've learned to ask questions of either the person who's doing the vetting or the attorney, a lot more questions about the exact nature of what happened. What are the? Obviously? What side of the case are they on? What is it that I bring to the table? Things of that nature to try to determine if it's more of a regulatory case, if it's more of a safety theory case, and trying to gauge where are they at in the process. Are they in the early part of discovery? Are they in fact finding? Again, where can I bring value to that process?

Noah Bolmer

Do you feel that you're typically brought in early enough to be effective and efficient, or is it sometimes a bit of a crunch for what they're asking for?

Kirk McDaniel

A bit of both.

Kirk McDaniel

I was brought in on a case last year which is still ongoing so I can't discuss it, but I was brought in by the attorney on an indemnification case which is also tied to, unfortunately, a death case, and we had less than three weeks to examine evidence and put out a report to be submitted to the court. So we were really working hard for about a three-week period and we produced an outstanding report and it was of great value to the client. In other cases, I'm brought in months and months in advance of any real traction on the case. So then I have an opportunity to engage with the attorney and help them develop their strategy, helping to identify the types of documentation we need to be looking at to try to figure out what strategy will we use to try to win our case Again. Is it regulatory? Are there safety, culture issues? Are there training issues? Just all sorts of things?

Noah Bolmer

When you talk about documentation, do you typically receive sufficient documentation at the outset, or do you find yourself having to make a lot of requests for additional documentation to properly form your report?

Kirk McDaniel

Again, a bit of both on the the one case that we had to adjudicate in three weeks, we I received a selection of documentation.

Kirk McDaniel

Now, that was the selection made by the attorney and although I'm I'm very respectful of them, I'm very fond of them and we're still ongoing. There were certain pieces of documentation that they they didn't send me that would have been very helpful, or or pieces of documentation they only sent me part of it. Now, on the flip side, on one case I'm on right now and I typically request paper documentation. I like I'm an old school yeah, you can send me a Dropbox links and links to electronic documents, but I like to sit down in front of actual paper and look at documentation. And one client recently sent me 13,000 pages of documentation and I looked through every single page of it to find the 100 pages maybe 300 pages that was embedded in it that had any real merit on the case. This is what they received from the opposite side. We're trying to flood the case with volume of meaningless documents in hopes that the few that we actually need will get buried somewhere in the middle.

Noah Bolmer

How do you handle billing in those situations where you have 10 trillion pages of documentation and you're going to look over all of it because it was all handed to you? Do you bill the same way for reviewing documentations as for other parts of your engagement, or do you have different billing rates depending on the task that you're doing?

First Steps Into Expert Witnessing

Kirk McDaniel

The way I do my work and everybody of course is different or can be different. I have three basic billing levels. I have a basic billing rate. Everything falls into that basic rate that isn't involved in preparing for or giving a deposition, which is a different rate, slightly higher. And then there's an even higher rate which is involved in preparation or testimony at trial, but otherwise everything lumps into one big basket.

Kirk McDaniel

Now, what I typically do on my invoicing I try to differentiate between when I'm general communications, discussions with the attorney, document review, but I don't spend. I've had some people ask me how many hours did you spend reviewing this one document? That was 24 pages. We think you should be able to review at a rate of three pages. I don't do that. I review the documents as quickly or as in-depth as I need. Sometimes it's a high-level overview. I determine, okay, there's nothing here. Or sometimes I'll flag them to come back later and look at it in more detail. Or sometimes I'll flag them to come back later and look at it in more detail and I just log the total time and it all goes into a bucket.

Noah Bolmer

Sure, when you have those crunch situations where you have, say, only three weeks to generate an expert witness report, does that affect your rates at all? No, it falls into one of the three categories. Then I assume travel does as well.

Kirk McDaniel

Yes, although travel can often be a source of. I don't travel much for my work, but I am asked to travel occasionally and I have specific points within my consulting service agreement that says okay, if I'm traveling, as an example, and I'm going to be away from my home area, I'm going to be charging you at a rate of eight hours a day or door to door, whichever is greater. The message is if you want me to travel, fine, but you know I'm not doing it for free, not doing it out of the goodness of my heart. If you want me to go there, fine, I'll do it, and I usually make sure we check with that in advance to make sure that people understand.

Noah Bolmer

Sure, let's talk report writing strategies. How do you go about writing your expert witness reports? Do you like to organize things with an index and summaries and demonstratives, or do you just kind of go with the flow? Do your attorneys give you some kind of a skeletal outline? Tell me a little bit about your report process.

Kirk McDaniel

Well, each report is different. It depends on the merits of the case, depends on what it is you're trying to prove. It depends on whether you have a strong regulatory component In other words, the opposition failed to do this, that or the other thing based on federal law in this case, or if it's more of a theory case. So each of my reports is structured to tell the right story.

Noah Bolmer

Well, that's a great segue. Tell me about telling a good story.

Kirk McDaniel

Well, sometimes you just don't have a lot else to go on. If the let's see, in this case, mine safety cases fall under a very specific section of the Code of Federal Regulations, the Code of Federal Regulations and if you have a clear violation of that code and the opposition clearly violated the law and someone got hurt as a consequence of that, that's pretty easy right.

Kirk McDaniel

That doesn't take a rocket scientist to figure that one out.

Kirk McDaniel

But when there are vague or unclear lines of responsibility and you're trying to prove to whatever standard is applicable, whether it's, you have to assume partial liability or comparative fault. You know more likely than not. Sometimes you have to take the facts that are given to you and you have to learn to read, sometimes between the lines, and understanding applicable laws, actual safety theory in this case mining practices, and the very inherent high risk nature of mining and underground spaces, and then you have to be able to craft that into a narrative that tells a story that supports your client's position, one that we wrapped up here not too long ago in Iowa was a combination of looking at the regulatory components and indicating what the opposition was supposed to have done and then contending of course I'm rendering an opinion, like experts do that they failed to do that and then attacking their safety culture, their management structure and their lack of competent people. Ultimately we were successful in that by mediation. We presented enough of the case, but the other side decided okay, we will settle rather than go to trial.

Noah Bolmer

You had brought up different standards of review and different bodies of law. Do you often find yourself, or do you ever find yourself, in a new, unfamiliar venue where you have to do a significant amount of research before being able to render an opinion, and if so, is that something that the attorney should be preparing their expert witnesses for?

Kirk McDaniel

Well. I think I personally in my work I try to stay in my own lane. Now my lane involves mining engineering, mining safety, mining operations. It's a pretty broad lane but it's still my lane. I've had people come along and say we want you to examine an oil field accident or an accident involving industrial safety and that's not my lane. So I typically try to stay in my lane so that my opinions when it comes to challenging my opinions, it becomes very difficult. My expertise is in mining engineering, mining operations.

Kirk McDaniel

I've seen evidence of people who try to paint themselves as being experts in everything, as being experts in everything and they can, you know. The last thing you want is to have someone on the other side challenge your opinion the adopter challenge and have the court indicate this person is not capable of rendering an opinion. In this case. This, that's like the death sentence. So another good piece of advice to a new stick you know what your lane is and then stick to it. Try not to swim outside your lane too much, because if you get caught trying to render an opinion in which you don't really have the credentials, you can either screw up the case or find yourself in a very uncomfortable situation.

Handling Opposition and Building Relationships

Kirk McDaniel

I have done cases before, as an example in underground transit and tunnel design, which is different to mine, but I also have a background in underground transit and tunnel design, so it's still. I have credible expertise, credible experience that allows me to look at that. But if someone were to come along and say we want you to, someone came along here not too long ago and wanted me to look at a case that involved some gentlemen who were dismantling a structure at an abandoned coal mine and they were basically cutting it up in pieces and it collapsed on them and I indicated to the person looking. I said you need a structural engineer. I am not a structural engineer. I declined to engage because it's clearly outside. I can render an opinion that it was a really stupid thing to do, but it's not based on any credible expertise, credible education or experience. So again, stick to your lane and know what your lane is, and then you can swim in that lane and you're much more successful and much less vulnerable to outside attack On that same topic.

Noah Bolmer

you're an expert in your lane, in your proverbial lane. How do you remain an expert in your field? What are the sorts of things that somebody in your field need to do to not only be an expert, but to remain current?

Kirk McDaniel

Well, in my case, I remain current by being an active member of my professional society, which is the Society of Mining Engineers. I'm an active member of the International Academy of Mine Safety and Health, which does a process called the Certified Mine Safety Professional Exam. As a board member, I'm personally responsible for development of that exam. I help write the exam. So I stay current by staying engaged, sure, being knowledgeable of the principles and practices of my craft, which haven't changed that dramatically, that quickly, and by maintaining professional licensure, professional education. You know, in my case, I've been at it for a long time, 40 years. So my expertise and I've had people challenge me. Well, you know, when we were looking at a case that involved underground roomuman Pillar operations, a type of mining. Well, I've never worked Ruman Pillar at this specific mine, but I've worked Ruman Pillar at all sorts of places around the world. My expertise and my experience is cumulative.

Kirk McDaniel

I was challenged at one point. Well, the opposition said well, you didn't go to visit that mine, how could you possibly know what they were doing? I said I didn't go to visit that mine, how could you possibly know what they were doing? I said I didn't need to go. I I discussed it with the mine engineers. I know exactly what they're doing. I've I've been in the field, part of my strength as an expert in my particular field. My lane is I have field experience, working not just, not just academic experience, not book experience, not theoretical experience. I worked in the mines. I have built mines, I've worked as a miner, so I know this area extraordinarily well.

Noah Bolmer

Again, know what you're good at and stick to it when the opposing side attempts to impeach you on the stand or when you're in something like you mentioned a Dobert hearing when they're trying to say you're not the correct type of expert for this matter? How do you handle those sorts of situations? How do you stay calm, cool and collective without getting flustered by the questioning the sometimes intense and lengthy questioning from the other side?

Kirk McDaniel

Well, I've never been subject to a doper challenge. The last case that I was on it was currently on they decided to decline the opportunity to challenge me and they preferred to fight it out in court, which meant you don't have a leg to stand on as far as challenging my expertise. As far as things like depositions, know your facts, stick to the facts, things that you were. I typically only review my report on a few very basic pieces of documentation and stick to what you know. Stick to what your opinion was, and if your opinion, my opinion differs from somebody else's, okay, that's fine. That's why we have opinions.

Noah Bolmer

Have your attorneys engaged in preparation practices like mock cross-examinations or anything of that nature. In the few that I've, done?

Kirk McDaniel

the clients have, the attorneys have we typically sit down before the deposition and just kind of go through the facts of the case? I personally have not been subjected to any sort of mock trial or mock. I'm going to be heading out here in about a month on a on a case where I'll meet with the attorney the day before trial. We'll talk about the case, we'll review the material he's going to put up on this, up on the stand as exhibits.

Kirk McDaniel

I'm sure he'll have some, some questions he'll want to prep me on. And again, I'm going to stick to my examination and my report and my opinions and if I'm asked to deviate from that I will have to say I'm sorry, I have no opinion in that regard, or that's not something I did as part of my review.

Noah Bolmer

Often there are trial teams that consist of not only you as an expert, but potentially other expert witnesses, sometimes paralegals, assistants, teams of attorneys. To what extent do you interact with the other members of the trial team besides the engaging attorney?

Kirk McDaniel

On the one case I'm currently on that again can't really. It was a fairly engaging process with other representatives of the company that they represent. On another case I'm currently engaged in I'm anticipating engaging with some of their other experts accident reconstruction experts, so on and so forth. We're too early in the process to define that Several of my cases I've been the only witness, at least as far as I know.

Noah Bolmer

Do you have a story or two that you can share without giving any specifics or, you know, revealing anybody unnecessarily, but that have served as tentpole cases in your career as an expert witness, either a case that reinforced something that you already do or changed something that you do?

Vetting Cases and Documentation

Kirk McDaniel

Well, I'll use an example of a case again recently wrapped up in the case of Iowa. It involved a woman who was driving down a county highway, county road, and this particular county road was at the site where a mine operation had set up. So their haul trucks were required to cross the road Not a good practice, but not illegal either. In this particular case, a truck hit her as she was approaching the site and caused significant damage to her vehicle and to herself. In that particular case I think this is a relevant example the attorneys didn't give me clear communication when we got started and so as to what they needed, what they, until they kind of let me just go off and I started to examine all sorts of different things. As a consequence, my initial report was sort of all over the board. It required that we sit down and discuss, in the context of what we were allowed to do under Iowa law, what's important, you know what is?

Kirk McDaniel

it. I think at one point I asked them what is it you're trying to prove? They hadn't told me that. I think they thought they had, but they had not actually provided me the documentation that showed me the exact nature of the Iowa statute that they were trying to prove for their case, okay. Well, that's suddenly a light goes on. Now that I know what it is they're trying to prove, I was able to revamp my report with a modest effort to focus on those things and to help prove their case. So again, another important bit of information, a piece of advice to a new expert Find out from your client what is it that's important, what is it you're trying to prove? And then ask yourself is there evidence here that can help do that? Sometimes the answer is no.

Noah Bolmer

Along those same lines. What are, in general, the factors that make a good, efficient, effective expert witness engaging attorney relationship? What are the aspects? How do you get off on the right foot in a new engagement?

Kirk McDaniel

I think you have to have chemistry. You have to have a feel from fairly early on that this person is um, knows what they're talking about, or they know what the case is. They are respectful of your time and expertise. They can clearly articulate where you fit into their, into their process they're friendly, they're engaging, they're accessible.

Kirk McDaniel

Friendly, they're engaging, they're accessible. One attorney that I'm currently working with. He and I have a great working relationship, Aside from the fact that my actual relation, my contractual relationship, with him is through a separate firm, other than Roundtable Group, but similar. But my personal relationship, how I engage with him, is on a one-to-one Fine. You can. You know all the contracts and the payments and that's all handled through a process, but we engage directly with each other and that's an important component. You know, when we were really actively preparing that report, we were on the phone, online all the time.

Kirk McDaniel

And so you get to like the person. I've also worked with attorneys one that just recently I was engaged for six months and never heard a word from this attorney Come to find out. Ultimately she was leaving the firm that she worked with when they engaged me. She rarely ever reached out. I tried engaging several times and couldn't get her to take the time to talk to me. Okay, that's fine. Maybe she'll resurface sometime in the future and maybe the case is still alive, or maybe not. I know that I certainly prefer to work with the former as opposed to the latter, naturally.

Noah Bolmer

You bring up Roundtable Group. Do expert witness referral agencies assist your work as an expert witness? Do you find them useful? Oh, absolutely.

Kirk McDaniel

Again, I work a regular full-time job. I won't go into what that is, but I do. Having an agency like Roundtable Group and I do work with Roundtable and others, having them find cases and present them to you, that's the best of both worlds. Cases and present them to you, that's the best of both worlds. Now I suppose there are experts out there who have another process where they go out and find their own cases. I just don't know what that is and I don't know that I would be interested in that, having someone come to you and say here's a case we'd like you to consider and give you the opportunity to look at it and maybe it has merit, maybe it doesn't.

Kirk McDaniel

Maybe you have expertise, maybe you don't. Maybe you have time to do it, maybe you don't. I don't know.

Noah Bolmer

It's a nice feature. We had talked for a moment about an attorney who was not particularly responsive to you and we talked about what makes a great expert attorney relationship. Are there any red flags or bad experiences that could serve as learning experiences for newer expert witnesses?

Key Advice for New Expert Witnesses

Kirk McDaniel

I wouldn't necessarily say bad, but unpleasant or at least uncomfortable. When engaging as a new expert, I think it's important to have a strong consulting service agreement, whether that's something that you craft and that you present to your client directly or it's something that you work with a group like Roundtable, to make sure that how you're going to do your work, what you're going to do as part of that work, how you get paid when you get paid, what are the conditions that would allow you to withdraw from the case are all pretty clearly identified, what your different rates are, what are your conditions for travel. I think I have found that in one case I was engaged in a case in New York where I was engaged through a broker like roundtable group not round, but similar and that particular group operated on a paid win, paid basis. And I don't like that because there was one particular point in time where an invoice that was put in went on for almost 90 days without getting paid.

Kirk McDaniel

This particular person didn't want to take action to find out what was going on. So I did, Pissed her off something awful. But I found out what was going on and it was a simple administrative snafu that was pretty quickly corrected by the lead attorney with apologetic. You know, we're really sorry. It was sitting on somebody's desk so I think this is one of the other questions you'd had about.

Kirk McDaniel

do I have specific terms and conditions in mind? Yes, I have found that if, again, advice to a new expert, if you don't dictate the terms under which you will do work, somebody else will. You might as well dictate terms that are favorable to you. You got to be reasonable. And one of the pieces of advice don't give away all your secrets until you have received your compensation Absolutely.

Noah Bolmer

And on that note, do you have any last advice for newer expert witnesses or attorneys who work with expert witnesses?

Kirk McDaniel

before you wrap up, know your lane, know what you're good at and I think don't be afraid to request a reasonable rate for your expertise. Be reasonable but at the same time don't give your services away. Don't give away your expertise. It has tangible value and the attorney knows that. And if you're the right person for their case, they should be able and willing to pay a reasonable fee to get you to render your opinion Sage advice.

Noah Bolmer

Dr McDaniel, thank you so much for joining me here today. Thank you very much and thank you, as always, to our listeners for joining me here today. Thank you very much and thank you as always, to our listeners for joining me for another edition of Engaging Experts Cheers.