Engaging with Panel Attorneys, Erik Groothuis, Mark McKenna and Kevin Hensley

In this episode . . .

Ever seen a brilliant expert lose a jury in five minutes? Credentials alone don’t win cases, and today, we’re unpacking why. We’ve brought together three seasoned voices to share what really matters when turning expertise into testimony that persuades:

• Erik Groothuis – Commercial Litigation Attorney and Arbitrator
• Mark McKenna – Professor at UCLA and Partner at Lex Lumina, LLP
• Kevin Hensley – Partner at Barton Gilman

From the first call to cross-examination, our panel dives into the traits that separate great experts from the rest: attention to detail, calm under pressure, and the ability to teach without talking down. You’ll hear why early involvement can save cases from brittle theories and missed evidence, plus the vetting checks these attorneys use to spot credible practitioners versus “for-hire” opinion mills.

We also tackle the messy middle: how much material to share, why oversharing beats ambushes, and the value of starting experts on a consulting basis to preserve candid feedback. The conversation compares venue demands across state, federal, arbitration, and specialized courts, with practical prep tips and mock exam strategies that build confidence. We explore tricky scenarios: when a related specialty is enough, when it falls short, and how cross-examination can expose those gaps.

One message runs through the conversation: great experts combine deep knowledge with clear communication, and great lawyers welcome early challenges to sharpen their case strategy. We wrap up with actionable advice experts can use today: be responsive, avoid surprises, align your schedule with court timelines, and think like a teacher.

If you find this episode valuable, subscribe, share it with a colleague who hires experts, and leave us a quick review telling us the one expert trait you value most.

Transcript

Sponsor, Host, And Panel Introductions

Announcer 0:01

This 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 roundtablegroup.com.

Noah Bolmer 0:14

Welcome to Engaging Experts. I'm your host, Noah Bolmer, and today we have a panel discussion lined up with three distinguished attorneys, all returning guests. Eric Gruthius is a commercial litigation attorney and an expert on New York contract law and professional malpractice. Additionally, he's an arbitrator for the American Arbitration Association. Mr. Gruthius holds a JD from Harvard. Mr. Guthius, welcome to the panel. Thank you, Noah. Happy to be here. Mark McKenna is a professor of law at UCLA and a partner at Lex Lumina LLP, a full service law firm. He is a sought-after IP expert with numerous publications and holds a JD from the University of Virginia. Professor McKenna, welcome to the panel. Thanks for having me. And Kevin Hensley is a partner at Barton Gilman, where he practices as a trial and appellate attorney on a broad range of matters, including contracts, employment discrimination, indemnity, and more. He's a published author, frequent presenter, and has been recognized by best lawyers in America. Mr. Hensley holds a JD from Boston University. Mr. Hensley, welcome to the panel.

Kevin Hensley 1:16

Thank you, Noah. Glad to be here.

What Makes An Expert Stand Out

Noah Bolmer 1:18

We're here to talk about one of the most consequential and nuanced collaborations in litigation, the relationship between attorneys and expert witnesses. We'll explore the strategies and challenges in translating complex expertise into persuasive legal strategy. Let's jump into it. I'd like to talk about expert traits in general. Mr. Gruthius, what do you think makes an expert witness really stand out? Are there a couple of key traits or even red flags that separate the great ones from the rest?

Erik Groothuis 1:49

Yes, I would say for me, the most important traits for the expert is you know attention to detail. And within that, I would include deadlines, case deadlines. And sometimes those deadlines are internal because we need to have the client vet things or vet things ourselves before we uh generate the final work product and turn it over to the other side. Uh that's sort of during the report process. But then, you know, when they're on the stand, whether that's in deposition or at trial, um, the the best ones are truly unflappable. Uh it's almost like you know, you gotta fake it till you make it. As long as they look like they're unperturbed or, you know, whatever the gotcha question is doesn't really bother them. Um a lot of times the jury or whoever's you know assessing the facts in the case might not know the difference. And so that a certain level of confidence and unflappability for me are key issues for a testifier.

Noah Bolmer 2:42

Mr. Hensley, your take?

Kevin Hensley 2:44

Yeah, I agree with all that. And I think a corollary to that is effective communication might be the most important consideration for me, because no matter how technically proficient an expert is, if they can't communicate their knowledge to the jury in the way that the jury can understand, it'll all sort of be wasted. So being unflappable is part of that communication. And speaking, I think, in a way that jurors understand without sounding pedantic. Um, and as uh Eric said, keeping your cool are great traits to have and pretty essential if you're gonna have a successful collaboration with an expert.

Noah Bolmer 3:24

Professor McKenna, do we teach this enough in law school? Do we teach attorneys how to not only vet expert witnesses for their their subject matter expertise, but the intangibles to look at what makes a great expert witness before we might engage one?

Mark McKenna 3:44

I think we probably teach that almost not at all. First of all, it's a it's a pretty advanced skill of litigation, and I think the law schools already struggle to teach practical application in trial or in pretrial settings. I mean, there's a lot of that has changed over the you know 25 years of my career. There's way more experiential learning, but it's still just very difficult, I think, to teach out of context. So there's like almost uh by definition a skill you have to learn kind of as your career unfolds. But even within that, you know, how you deal with an expert, I think is um is a is a very advanced, very specific skill set. I do say I teach my, when I teach, especially in my trademark class, I tell my students all the time your capacity to understand expert evidence, and especially in that setting, expert survey evidence can really advance you quickly within your uh legal career. Because if you're a young lawyer who is uh capable and uh knowledgeable about like what the methodologies are and how to talk to experts and how to think about what makes them strong, um, you can be asked to do things in a case that most junior associates aren't able to do. And so I think it is a thing for um for young lawyers especially to pay to pay some attention to.

Noah Bolmer 4:57

Mr. Hensley, the flip side of that coin are red flags. Do you ever come into a situation where an otherwise perfect expert witness, they might be at the top of their game, well published, really understand their subject matter, might not make a great expert witness in front of, say, a jury or a judge at a bench trial?

Kevin Hensley 5:17

Oh, it happens all the time. Um, highly accomplished experts, top of their field, as you say, can be extremely poor expert witnesses. And I've had to jettison experts, sometimes, sadly, at pretty big expense, when a ways into the case, it becomes apparent to me that either they are unable to communicate or perhaps most deadly, they're arrogant. Um, if I have an expert witness who's coming across to me as arrogant and uncooperative, and I think he's going to be combative on the stand and that the jury's not going to like him, I'll probably pull the plug if I can, uh, because that typically isn't going to work.

Erik Groothuis 5:57

Why Kevin said totally comports with my experience. That often is the biggest issue. You know, you probably found the right credentials in the person, you know, by the time you've uh brought them on board. But what's harder to uh determine is um, you know, if they are at the top of their field, as as you say, do they act like it, right? And and you want somebody who's going to be relating or relatable to jurors and a surprising amount are just not, and they don't like to be told, you know, but that they should do it a different way or that they're wrong about something. Professor McKenna, red flags.

Bring Experts In Early

Mark McKenna 6:32

I very much agree with that. I would have said uh a minute ago, and sort of doubling down on the clarity point, that I think um that sometimes it's worse than just that your expert is lost on the jury, but the jury can actually dislike your expert if they don't think that what they're getting from them is explained in a way that feels respectful of the jury and feels respectful of their time and their attention. I would say another for me, like in especially at the at the point of choosing an expert, uh, it's a big major red flag for me if when I do the research on it, it appears to me that that expert will take any case. Uh, if they'll take any case and just want to be paid uh to do the report, like I want an expert that um is choosy and is particular and knows that uh they will only take a case if they feel like feel like they can really give you an opinion that comports with what they really think. The people who are professional experts that feel to me like they're just for hire, I think that very easily gets exposed um over time. And I think uh that's not an expert that I would want to work with.

Noah Bolmer 7:31

Is whether or not they spend a significant amount of time working for both plaintiffs and defendants part of that calculus?

Mark McKenna 7:38

It can be for sure. I mean, I think sometimes it's easy to make an expert look like they're in the of the style I just described if they're always sort of on one side. But even that, I think more it's um, I think if you dig into the reports in the prior cases, you can tell when the party that hired them has a weak case and they're willing to go to the mat on an, you know, on an expert opinion versus, you know, when they're more careful. Um, and so, you know, I think when I interview experts, I want to feel like they are asking good questions and they are, you know, pushing back to get more thing information than I'm providing them and that they are, you know, not the kind of expert that is just gonna like write down in the report whatever they think I want them to write.

Kevin Hensley 8:20

Yeah, I'll add that um I I like to see an expert that handles both plaintiff and defense work, both sides, but it's not dispositive for me. Um, more important to me is an expert who actually practices in the field as opposed to spending most of their time as a litigation consultant. Um, if I have a medical expert, I want someone who sees patients and maybe spends 10% of their time and income doing litigation consulting. I want them to spend most of their time actually treating patients. And I think that would hold true for any field of expertise, engineering, uh, anything. I I don't want someone who makes most of their money as an expert witness.

Noah Bolmer 9:02

Mr. Groothuis, is that important to you when you're determining whether or not to engage an expert if they are still actively engaged in their field?

What To Share And How Much

Erik Groothuis 9:10

I would if I had to pick a choice between somebody who is a practitioner versus an academic exclusive type, I would rather have somebody who's out in the field doing the things that they're opining about as opposed to publishing and and and researching. And and circling back to the point um made earlier about um whether experts um it's better to have someone who's on you know both sides versus one or the other. At my prior firm, uh one of one of the partners at the firm used this particular expert, who shall remain nameless, but had fabulous credentials, you know, PhDs and master's degrees from like you know, every fancy university. And this guy was sort of notorious, he would say whatever you wanted him to say. I think he, you know, was part of a consulting firm and um really, you know, just was out there peddling the credentials, right? And the problem with that, I mean, it he looks good on paper, and actually he was a pretty effective testifier. Um, but the the pushback process that was referenced earlier, you know, pushing back on things that you tell them, it's gonna be every bit of that and worse on cross-examination, right? So if they're just writing down whatever you want them to say, it's gonna definitely expose them, you know, when it comes to cross-examination.

Noah Bolmer 10:25

Let's talk about some of the challenges that come up. I've interviewed quite a few expert witnesses, and one of the things that come up from time to time is experts don't always feel that they are brought in for during the right time of litigation. In other words, they wish they had been brought in somewhat earlier. Of course, there's an inherent push and pull between bringing them in too early and also being cognizant of the end client's uh financial position, if they, you know, how much, how many expert hours they want. So let's talk a little bit about that timing. Professor McKenna, how do you determine when to bring in an expert witness?

Mark McKenna 11:06

Yeah, I I think this is actually an important point. Um I I think the answer um for me is I would rather be too early than too late. Um, and so sometimes that takes the form of like having sort of initial conversations with the expert to get kind of their sense of, you know, what they think they might be able to say, what they would add to the case. One of the problems, I mean, because I also am an expert sometimes, when you get brought in late, um, there are features of the case that are locked in in a way where the things that you might be most naturally inclined to say are sort of just not, those are not available or they're not that they're not helpful at that point. And I think on the lawyer side of the case, you know, having a sense of what where the expert's actually going to add something affects the way you do discovery. It affects the way you think about the strategy of the case. And so, you know, I I understand the sort of point about um, you know, efficiently resolving the case, but um, to me, it's I would always rather talk to a an expert kind of early. So at least I know what whether and what kind of expert um evidence might be coming later.

Neutrality, Candor, And Consulting First

Kevin Hensley 12:11

Yeah, I think there's some circumstances where it's obvious that you need an expert right from the outset. Um one of my more unusual cases involved a uh gas boiler explosion at a kielbasa factory. It's the first exploding Kielbasa case I ever had. And it was an ancient facility. The boiler was probably back from the early part of the previous century. And I got a really good boiler expert right away. He was with me on the initial visit um almost immediately after the explosion. Without him, I would have been lost. We we would have lost key evidence, we wouldn't have gotten the photographs that we needed, um, we wouldn't have had the examination that we needed. That's fairly obvious, I think, when you're dealing with an emergent situation like that. But just more generally, I agree uh with Mark that the earlier the better. I'll just add that when I do get an expert involved early, I try to keep things oral rather than written initially. Um you never really know how his analysis is going to go. And I don't really want to have him committed to something in writing that might conceivably be discoverable. So I tend to have phone conversations as much as possible in the early stages of my uh interactions with an expert, take my own notes, uh, but I don't necessarily have him commit anything to writing other than what he needs just to remember what he's seen.

Erik Groothuis 13:33

So I agree with everything that's been said until now. I think really in my perfect world, we would have the expert when we're drafting the complaint, right? I remember one of my earliest legal malpractice complaints we filed. We researched the law, we wrote up, you know, theories of liability, and then we searched for experts later. And there were if in in some of the claims we were making, it was hard to find somebody who would support them. And so I I know, as you said, you know, Noah, there's a always a push and pull, right? And and part of that push and pull is expense. Um, but but keeping someone involved, even at a high level as a consulting expert um early on, I think will um be worth the rewards in almost every case. Um, you know, I do a lot of cases where the experts will opine on damages. That may be the exception here, where the the damages issues can probably wait until you know the liability issues are are kind of sussed out more. Um, but for you know, most of the subjects on which experts opine, I think having them involved earlier for sure is better. And you gotta explain to the client why it's so important.

Kevin Hensley 14:36

I I was just gonna add one other big advantage to early involvement is that I myself get educated. I think it's really important that I understand the technical issues in a case. Um if I don't understand them, it's gonna be hard to interact with the expert. So I get that education the earlier the better, and then I feel a lot more comfortable defending the case throughout the course of its life.

Vetting Methods And Prior Work

Noah Bolmer 14:59

Along those lines, if if you are not necessarily, you may be familiar with, but you may not be a complete expert, otherwise you wouldn't need an expert witness necessarily in a in a particular field. How are you, how do you determine which case materials to send to the expert witness without inundating them, but also making sure that they they have enough that they might be able to spot something via their expertise that you may have missed. What's the calculus that goes into how much uh case materials that you send to a uh an expert witness when you engage them?

Erik Groothuis 15:35

I I would prefer to be an oversharer in this respect. And part of the reason is typically the other side will get uh a list of everything that the expert um, you know, depends on the way the rules are written, but at a minimum it's what they relied on, and sometimes it's everything that they considered. And I don't want ever to put an expert in a situation where something comes out at a deposition and they say, well, you know, were you aware of this? And the expert has to say no, you know, and then you have a fight about, well, does that change your opinion or not? Um, so I tend to share with them almost everything that I can think of and let them use their judgment as to what they actually want to uh rely upon.

Noah Bolmer 16:14

Professor McKenna.

Venue Differences And Preparation

Mark McKenna 16:16

Uh I very much suck on that. I mean, and I can say this from both sides. I think the worst thing for me as an expert is getting surprised, right? I don't want to learn something that I should have known about the case that that my lawyer should have uh told me in the deposition or on cross-examination. So that that's uh so I would much rather have more stuff rather than less and and you know, just have to write down more things. I do think the inundation point can be right. And I think this is where I agree with Kevin that early conversation, like verbal conversations with helpful because you can do a lot of frame setting there. You can get a sense of kind of like where you think the expert fits in, and then you can kind of talk about what information they feel like they need. Um, and you know, sometimes that's an ongoing conversation where you send, you know, batch one and they feel like I wish I knew the answer to this. Um, you know, and this is also, I think this is like why having you know the expert be a good fit in, you know, someone earlier mentioned attention to detail, just knowing that like, you know, that person's paying attention to what you send them and they're gonna be, you know, asking good questions because they're, you know, you've picked somebody who really knows what they're doing.

Noah Bolmer 17:19

I'd like to talk about new neutrality for a moment. As you know, expert witnesses' duty is to the neutral truth, it's not to the end client. Uh, but obviously the attorney wants to choose an expert whose opinion gels with their trial strategy. How do you go about squaring those two things? How do you simultaneously allow the expert to have their own opinion without trying to influence them, but also find an expert whose opinion does match what your trial strategy is?

Kevin Hensley 17:52

Aaron Powell So I the first thing I would want from any expert is to tell me if I'm wrong. And I make that clear from the outset with any expert I engage, particularly medical experts, if uh there's a causal relation between an accident and an injury, I from the outset, I'll say, listen, if if this caused this injury, I want to know, because then I probably want to settle the case instead of taking it to trial. So I try to establish that from the outset to have the expert comfortable with giving me the bad news. Um if they're not willing to do that, it can be a recipe for disaster. So I think having that understanding from the outset, and it's funny, you'd think that would go without saying, but it doesn't necessarily. I I think it's really important to let the expert know you you gotta give me the bad news if it's out there. Because some of them might assume that you don't really want to hear it, but but you do.

unknown 18:43

Mr.

Noah Bolmer 18:43

Gruthius.

Stretch Expertise Or Stay In Lane

Erik Groothuis 18:46

I think the way most lawyers deal with the problem, Noah, that you presented is you know, you retain them initially on a consulting basis, right? And then you're having presumably freer and more open, candid conversations. Uh, you know, notwithstanding Kevin's point earlier about, you know, you have to be careful if there's no agreement or no rule about what's discoverable in terms of what you share with experts. That's why Zoom has been a great tool for dealing with experts so that you can share these ideas, you know, without um even sharing screens and such, you know, without putting things um in writing. Um so yeah, those are my thoughts on that. Professor McKemah.

Mark McKenna 19:23

Yeah, so I I very much agree. Um, I I guess I want to tie this back to the conversation we had just a minute ago, which is um I think you're in much safer territory, and that's likely to go much better if you're dealing with an expert who isn't somebody who just takes every case and who makes their entire living doing expert work, right? So that person is gonna feel much freer, also much more constrained because, you know, they have the side constraints of the rest of their professional life that they have to deal with whatever it is that they say, right, in your case. And if that person, you know, doesn't make all of their living doing expert work, then that is costly. I mean, I know, you know, I have a long paper trail. And uh if I were just sort of like modifying whatever I was saying as an expert for the case, it would be very easy for that to get exposed. And I think also, I mean, I agree with Kevin on this very much too, that, you know, um, building a relationship with the expert that makes clear to the expert that they are helpful to the case, even if it doesn't mean that they wind up testifying here goes forward if they're clear about kind of what they think is going on, because it sets the parameters for settlement. It helps you think about like, you know, how you give advice to your client about what kind of a case they have. So um, so they don't need to be like on your, you know, you know, guns blazing, ball, you know, going to the wall, because that isn't always the thing that's most helpful. And it's also that kind of attitude that gets easily exposed when if you actually do use them on the stand.

Debriefs, Feedback, And Ongoing Learning

Kevin Hensley 20:46

Just wanted to add, I think, you know, collaboration is uh really key. I have had experts who initially gave me sort of an unfavorable opinion, um, and then we talked it out. Uh, and on occasion, I've noticed something that maybe the expert missed and I can bring it to their attention. So there have been times through collaboration that we can reach a better understanding and I get an opinion that actually is helpful. But again, there's certainly those times when no matter what, the expert isn't able to help, and it's very good to know that sooner rather than later.

Noah Bolmer 21:17

Does do you do research? I mean, I'm sure you do, but what sorts of research do you do prior to engaging an expert to look through maybe the previous writings or courses or uh anything else that they've done in public to check if this is somebody who is going to help you out? Is that a large part of the um of the uh pre-engagement process, uh Mr. Hesley?

Kevin Hensley 21:40

Sure. Uh it it has to be. And it really depends upon the field of expertise. Um for medical experts, there's some obvious sources to check. Any profession that is professionally licensed, it's always good to check the board of licensure to see if there's been any disciplinary action that might be brought out on cross-examination. And if deposition transcripts are available, and there are a lot of sources for those, it's good to take a look to make sure the expert hasn't gone out on a limb that's going to affect your case adversely. Um, most of the time, I think the vetting comes back pretty well. Uh, if you've got a CV, the credentials are there. You've checked for any deposition testimony or trial testimony, and you know, you've checked about prior engagements so that there are no conflicts. Um, it's rare that I've vetted an expert and decided that I can't use that expert, but the vetting process certainly is important.

Noah Bolmer 22:38

Mr. Gruthius, pre-engagement vetting.

AI Tools: Utility, Risks, Disclosure

Erik Groothuis 22:42

For sure. And there are a lot of tools available for that now, not just on you know Westlaw and Lexus, where you can put the expert's name into a database and you know figure out, um, but also, you know, through wider availability of um internet searching and the AI tools, we for sure do all of that. Sometimes it's hard to get your hands on uh reports that they've issued in other cases, at least in my world, because they're typically filed under seal. They're probably under some kind of protective order. Um, but if they're an academic, they've undoubtedly published articles. And if um you look at the docket, you know, maybe the expert report isn't available, but in the summary judgment motion in this other case, you can see the gist of what this person was saying. And you absolutely need to do that because your opponent will be uh using that material to, you know, cross-examine them and they try to make sure they're gonna arbitrage whatever they've said before against, you know, whatever they're saying in your case.

Mark McKenna 23:41

Yeah, agree with all of that. Uh, I'll just say also this is, at least to me, an important part of the first phone call, which is where you're helping, you know, trying to sort of understand what this person's role might be and what you might be asking them to do, and then asking them, like, you know, tell me what else you've worked on that is kind of in the vicinity of this that, you know, I should know about and that can I see those reports and those kind of things. I mean, I think um depends a lot on like how r how broad your range of practices, you know. I mean, the cases that I'm doing um as a lawyer tend to be, you know, within a particular lane. Um, so word of mouth is already kind of a prominent feature of that. But um, but I I do think it's that's an important part of the first conversation, which is just, you know, like let let me know what I should be aware of here.

Noah Bolmer 24:24

Absolutely. Let's move on to venue for a moment. Experts are often engaged in an unfamiliar venue. They may be working in a different state or a different level of government, or you know, might be their first time in front of a patent judge. What are the preparation methods that you like to use to prepare a new expert witness for a new venue? And as a corollary to that, if there if uh the attorney is not offering that sort of preparation, should expert witnesses be expected to proactively research any specific rules that may affect them in a new venue? Uh, Mr. Gruthius?

Final Advice For Expert Witnesses

Erik Groothuis 25:06

I would say I would not expect the expert to do his or her own research on the particularities of a new venue for them. But if you know they've been working, you know, in one particular area, say, you know, state courts and now they're in federal court, or they've been in state and federal, and now they're in arbitration or patent court, you'll app you'll for sure want to, you know, educate them on the differences and and what might be new and different in the in the forum, in particular around um what you know, are there juries in this forum? Um, and um, you know, are are you testifying live but by video? All those things will affect how the final product comes out. And so you'll want to make sure they understand and are comfortable. Um, and if they're not, you know, you can do mock uh exercises with them, mock examination to get them ready. Professor McKenna?

Closing Thanks And Resources

Mark McKenna 25:55

Yeah, I mean, I think that's all right. I think um I I guess I agree that I wouldn't say that I expect an expert to go out and do a bunch of research on that, but I I would expect an expert to be aware of the possibility that they're in a forum that's unfamiliar to them and to be asking good questions about that. And, you know, uh maybe that's a little bit um skewed by the fact that because I am a lawyer, like I I'm attuned to that. But it does seem to me that part of what should be on any good expert's radar screen is like who's the audience that I'm gonna be speaking to? Uh, what are the, you know, what form am I gonna be expected to deliver this uh report? I mean, is there a diff that there's huge differences in California between state and federal court just in terms of like how much information you're providing? So I would think um, you know, except in a special case where you're dealing with somebody who is like such a specialized expert that they maybe have never had any prior experience, that the experts should be attuned to things like that so that they're aware of kind of what's coming.

unknown 26:50

Mr.

Noah Bolmer 26:50

Hensley?

Kevin Hensley 26:51

Yeah, I that's all perfectly right. Um I'll just add that whenever possible, I try to get someone who is familiar with the venue. It's not always possible. And certain specialties, it's probably less important than others. But if I can find an expert who is within a hundred mile radius of the courthouse, I think it's always better. I think the juries are likely to be a bit more receptive to someone they perceive as local. So if possible, I'll try to do that and avoid the whole problem of educating them about that new forum.

Noah Bolmer 27:23

Are there ever situations where an attorney does need a rather specialized expert? And uh they may need to uh not take an expert and put them outside of their lane, but kind of move up against the against the edges of that uh of their lane, it requiring them to do some significant amount of research prior to forming an opinion or writing an expert witness report. Is that something that uh any of you have ever run into?

Kevin Hensley 27:52

Well, I have uh just recently had a case that required determining a mean high tide line along a uh beach. And uh that was new to me, and I didn't even really know where to start. Um and uh he ultimately wound up being an oceanographer who could help me out, but it was a bit outside of his lane, but he felt comfortable doing it. He had enough basic knowledge uh to go down to the site and look at the clues and determine where the high tide line was. And I felt that as an oceanographer with significant academic experience, he'd certainly qualify as an expert, and I think he would. Um, and he enjoyed it actually. Uh it was nice for him to get out of the classroom and out into the field, and I think he enjoyed it. And it was a bit of a stretch, but not too much of a stretch where he might be precluded from testifying.

Erik Groothuis 28:47

I can't think of a time where I uh needed an expert or something where we couldn't find somebody who had done that exact thing and sort of had to push them outside their comfort zone. I mean, there's some really good expert referral services that can help you with stuff like that. Um, and I'd be afraid, frankly, to do it on the theory that like when they get asked on cross-examination, have you ever done this before? And they have to say, no, that's gonna be tough. But, you know, uh, as Kevin indicated, there might be some sui-generous situations where like, you know, no one really is an expert in this thing, and you have to just do something adjacent to what they really are experts on.

Mark McKenna 29:23

No, I mean, I think I think that's right. I think um it would make me very nervous. One of the things you mentioned, Noah, is the possibility that somebody would have to go do a bunch of research before, and that would make me very nervous about uh using an expert because you know, they're supposed to be able to bring existing knowledge that they are an expert in to bear on the particular case. And if it required them to go do a bunch of additional um research ahead of time, that that would uh that would feel to me like um like you were uh at some real risk there.

Noah Bolmer 29:50

Let's talk a little bit about wrapping up a case, well, or at least wrapping up an engagement from the expert witnesses' perspective, because often their part of an action ends long before the trial or the totality of the action is over. How should expert witnesses approach attorneys or should they approach attorneys to get feedback on how their performance was? Is this something that they typically do or you typically offer, uh Professor McKenna?

Mark McKenna 30:20

I don't know how typical it is. I would say like my experience has been mixed, but I would say that the experts that I um have the most favorable views of and that I are ones I would, you know, be inclined to go back to always are asking that kind of information. And they're mostly they're not so much about feed feedback in the sense of like, did I give you the report you want, but more like how did the case wind up going? What was my kind of contribution to the case? Like where did it fit in? And then, you know, um if they if you have feedback for them that has to do with like how they presented on the stand and what you what your reactions to those were that I find um anybody who is sort of doing enough expert work with regularity starts to develop a sensitivity to that quite, you know, and I think that is super helpful feedback. And um I, you know, I I think when I at when I'm a lawyer engaging an expert, I try always at the end of the case to kind of give them a sense of where it went and how I thought their piece fit into it.

Noah Bolmer 31:17

Mr. Hensley?

Kevin Hensley 31:19

Yeah I like experts who are interested in the outcome of the case even if they're no longer involved. I mean to me that shows they were committed, they were interested and I certainly do get experts following up with me the case settled or if there was summary judgment and they're interested to know. I uh like Mark I'm not sure that I have a lot of explicit sit-down sessions, you know, to debrief, but I think over the course of the engagement and the collaboration that goes on, I think both myself and the expert have a pretty good understanding of the strengths and weaknesses and if there were things that needed to be addressed. I think that probably just came out during the course of the engagement uh not necessarily with a sort of a formal debrief.

unknown 32:01

Mr.

Erik Groothuis 32:01

Gruthus My experience is is very similar to what's been expressed already. I find that experts are often interested in the outcome of the case but rarely if ever are asking for you know feedback on on their work. Lately I've been getting these um surveys from you know if I use um an expert that's part of a a firm an accounting firm or a consulting firm I'll get one of these you know like here's 10 questions how did how did we do I'm not filling those out you know if they want to reach out to me I'm happy to give them my thoughts but like I'm not doing a customer you know satisfaction survey at the end.

Noah Bolmer 32:35

Let's talk a little bit about one of the big topics of the day which is AI is this something that they should be considering and if so what are the sorts of ethical considerations and also as a corollary do experts need to reveal whether they've been using AI for anything is that discoverable Mr.

Erik Groothuis 32:56

Gruth I can't think of an expert engagement so far where this AI issue has come up but I would think that the rules of the road are similar to the rules of the road for attorneys right if you if you're going to use that tool and and I wouldn't say categorically that you shouldn't use it there are times when it can be a very effective tool for processing and digesting a large amount of information but you want to make sure you understand where that tool is pointed. You know if it's ChatGPT it's pointed at the entire internet right and so you have these issues certainly for lawyers about hallucinating cases and things like that. So you know if the expert is using that to facilitate their work, I think they have to understand what is the large language model pointed at what um you know what what have you done to uh satisfy yourself about the accuracy of the results generated. And I would think you'd need to disclose that you know just in the way that you disclose the uh materials that you relied upon if if you're using um uh uh an AI model uh it seems to me that that's gonna have to be disclosed just like you would any other model you know if you have a damages expert and their damages model is you know in the form of an Excel spreadsheet you most likely the other side's entitled to that and I would think they would be entitled to know about the use of AI for the same reason.

Noah Bolmer 34:14

Professor McKenna I imagine this is something that you have to contend with uh with your students. Tell me a little bit about your thoughts on AI.

Mark McKenna 34:23

Yes, it's thick on the ground in every law school. I mean so um I guess my first answer is I can't think of a context in which I would use an expert or I would function as an expert where I would think um the use of AI was helpful um in that way. And then I offset that with I think a substantial risk that uh it wind up giving you something that you are then that you have a then have a problem with, right? So um expert reports are not that hard to write. It's not like um you need that big of a running start um in order to do it. I think there's a real risk that it looks like you're not paying looks like and maybe is true that you're not paying enough attention to the case or enough attention to the details. I mean the the concern that I have primarily about it when I talk to my students about it is that they the concern that the students will treat it as like a substitute for having done the kind of deep dive on their own, right? So like I think it's inevitable that a lot of these AI tools will be used in the practice of law, but you have to really take a skeptical kind of lens at at the at the outputs and make sure that you're being very critical in evaluating what you're getting from them so that you can spot hallucinations, so that you can figure out whether it's kind of missed the mark. And if someone is using that in place of having done the mental work in the first place, they're not going to be able to do that kind of critical evaluation. And so you know in the examples that I know about where experts have used AI and it it's gone badly it looks to me like in those cases the the expert just has um used it as like a way to run a mill to do lots of expert reports and they're not paying close enough attention to the case.

Noah Bolmer 36:03

Mr. Hensley your thoughts?

Kevin Hensley 36:05

Yeah the expert assistance I need is so case specific. Generative AI to me seems to be geared towards answering big questions, answering general questions. You know I I need an expert to look at very specific facts of a very specific case and I've never to my knowledge anyway none of my experts have used AI in any way to help with their analysis um and I can't imagine that it would be very helpful. Someday I may be proved wrong about that but so far that's my feeling.

Noah Bolmer 36:37

Before we wrap up I'd like to go around the around the panel and see if any of you have uh advice for expert witnesses. Let's start with uh Mr. Hensley.

Kevin Hensley 36:49

Well it's a lot of what we've talked about here today I think but I guess I would say that responsiveness is critically important. I think Eric touched on that right at the outset but I really need inquiries responded to you know not in two weeks. Cases move quickly and it can be really frustrating if I have to repeatedly follow up to get a report or to get an answer. I don't want people to overpromise. I want them to give me realistic expectations for when they can get me the information I need because I can plan for it as long as I know what to expect. So if you can be responsive, honest about your other time commitments so that I can plan my part of the case, that'll be very helpful.

Erik Groothuis 37:37

Mr. Gruthius? I think for me the the main piece of advice I would give is no surprises. So you know and that reaches across many different areas right not just about what they're comfortable testifying and not, but also you know as Mark as Kevin was just saying, you know, deadlines um and also their availability right I've I've had cases where we've scheduled a jury trial and the wet the expert says oh no I I I'm gonna be in Egypt for the entire month and you know we have to like backtrack with the court. So you know when you're juggling a lot of balls just the way litigators do between your opponent, the judge, the client, um you really want the expert to be like you know one of the least of your problems. And so you know not not surprising the attorneys I think is is a good piece of advice. Professor McKenna any last advice?

Mark McKenna 38:32

So I'll echo both of those things and I think here's where it's important to remember that like especially if you are choosing experts who don't make all of their money as experts, nobody else's lives work on the schedule of litigation. Right. And so I think understanding that what happens in a case happens on a different schedule than what your normal life and your normal job is like, I think that's that's something you have to be aware of. I think that's in part like something the lawyers need to be aware of too at the beginning and like really setting expectations. But I guess the other piece I'll add is that is just saying you know that you get hired as an expert because of your expertise, but you succeed as an expert because of the way you're able to communicate that to people who don't have that expertise. Right. And so you need to think of your role as an expert as being a teacher as much as anything else. A teacher, you know, where you're trying to often explain complicated concepts or complicated you know computations to people who need to take your word for it and you have to like sort of help them get to that spot.

Noah Bolmer 39:33

Sage advice Professor McKenna Mr Groothius Mr Hensley thank you so much for joining me here today on our panel.

Mark McKenna 39:41

Thank you for having us.

Announcer 39:43

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